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An End to Warrantless Dog Sniffs of Automobiles: When Does a Traffic Stop Become a Seizure?

It is not unusual for law enforcement officers to turn a traffic stop into a full blown search and seizure of the vehicle that has been stopped. How is this accomplished? First, many times the officers, who have made what seems to be a routine traffic stop, know they will find contraband in the vehicle. The traffic stop is used as an excuse to get inside the vehicle, without the police having to reveal the source of their information that the car is carrying. After issuing a traffic citation, a "casual" request to search the vehicle is made. If consent is declined, the officers call back-up to bring a drug sniffing dog. If the dog alerts to the presence of contraband, the vehicle is searched based upon that alert and no one, including the driver ever knows the actual reason for the search. 

This ruse may soon be coming to an end in light of Tuesday's ruling by the United States Supreme Court in Rodriguez v. United States, 2015 WL 1780927, where the Court held that an eight minute delay in bringing a drug sniffing dog to a vehicle constituted a seizure, requiring articulable reasonable suspicion. In the absence of reasonable suspicion, the seizure and subsequent search are illegal.

In Rodriguez, an officer stopped the defendant for driving on a highway shoulder. The officer checked the defendant's driver's license, issued him a traffic warning and then asked for permission to walk his dog around the vehicle. The defendant refused, so the officer detained him until a second officer arrived. Seven to eight minutes later, the first officer led his dog through a "sniff" of the perimeter of the vehicle. The dog alerted to the presence of drugs and a subsequent search of the vehicle revealed a large bag of methamphetamine. The defendant argued that the officer prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff. The lower court denied the defendant's motion to suppress because it found that a seven to eight minute stop for the dog sniff was only a de minimis intrusion.

The Supreme Court disagreed and held that the tolerable duration of a traffic stop is determined by its "mission." A traffic stop's mission includes "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Notably, the court stated that a dog sniff is NOT part of the officer's traffic mission. The court stated that unlike these other tasks, a dog sniff lacks a close connection to roadway safety.

The court also stated that while some unrelated investigations that do not lengthen the traffic stop are permitted under the Fourth Amendment, a traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a warning ticket. In other words, when the tasks tied to the traffic infraction are - and reasonably should have been - completed, the authority for the seizure ends. Specifically, the Court held that, "[t]he critical question...is not whether the dog sniff occurs before or after the officer issues a ticket...but whether conducting the sniff 'prolongs' - i.e., adds time to - 'the stop.'" The Government argued that "so long as the officer is reasonably diligent in pursuing the traffic-related purpose of the stop, and the overall duration of the stop remains reasonable in relation to the duration of other traffic stops involving similar circumstances," the officer may prolong the stop to conduct a dog sniff. The Court swiftly denied that argument stating, "[t]he Government's argument, in effect, is that by completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation." Accordingly, the Court vacated the lower court's opinion and remanded to the trial court to determine whether the officer had reasonable suspicion of criminal activity.

This case is important because it signals an end to pretextual dog searches. It also highlights the fact that you should never consent to a search, including a dog sniff. As illustrated above, if the defendant in Rodriguez had consented, he would have not been able to prevail on this issue. Specifically, once you consent to the search, the officer does not need a warrant and you cannot challenge the subsequent search in court. Absent a few exceptions, if you do not consent, the officer needs to prove that he had probable cause to conduct a warrantless search. Even where your detention is slight, a minimum showing of reasonable suspicion must be established in order for the detention to be lawful. As such, refusing a search makes it more likely that your lawyer will be able to successfully argue that evidence obtained during the warrantless search of your car should be thrown out of court.

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