Yesterday the Supreme Court, which last year decided two important cases involving drug-detecting dogs, agreed to hear another one. Rodriguez v. U.S. asks the Court to elaborate on its reasoning in the 2005 case Illinois v. Caballes, where it said police are free to use drug-sniffing dogs during routine traffic stops but suggested stops that are "unreasonably prolonged" to facilitate such inspections would violate the Fourth Amendment. Rodriguez poses the question of how long a delay must be to cross that line.
The case involves Dennys Rodriguez, who was pulled over in 2012 on Highway 275 in Nebraska after he swerved onto the shoulder of the road (to avoid a pothole, according to Rodriguez). Morgan Struble, the Valley, Nebraska, police officer who stopped him, gave him a warning, at which point Rodriguez should have been free to go. But Struble, after unsuccessfully seeking permission to walk a drug-sniffing dog around the car, detained Rodriguez another seven or eight minutes, waiting for a deputy sheriff to arrive. Although Struble had a dog in his patrol car, he did not want to bring it out until he had another officer to back him up. After the deputy arrived, Struble walked the dog around the car, it alerted, and the cops searched the car, finding a bag of methamphetamine.
In January the U.S. Court of Appeals for the 8th Circuit ruled that "the traffic stop was not unreasonably prolonged." The delay of seven or eight minutes, it said, had no constitutional significance, amounting to a "a de minimis intrusion on Rodriguez's personal liberty." The fact that the Supreme Court agreed to hear the case suggests that at least a few justices may disagree.
If so, it would be a welcome deviation from the deference the justices have almost always shown to police and their canine collaborators. Last year, in Florida v. Harris, the Court unanimously ruled that a police dog's alert, which may be erroneous, imagined, invented, or deliberately triggered, by itself is enough to justify a search unless the defendant can show the dog is unreliable—a tall order when the evidence on that point is controlled by the police, who have little incentive to collect it. Combined with earlier decisions saying police are not conducting a search when they use dogs to detect contraband and therefore can do so without any evidence of criminal activity, Harris in practice gave cops with dogs a license to search vehicles at will. But since not all cops have dogs, there is still a practical limit on this power. That limit will be eroded or eliminated if an officer, after issuing a warning or citation, can continue to detain a driver until a dog arrives.
The forfeiture case I discussed the other day, in which Iowa state troopers took $100,000 in poker winnings from two players driving through the state, illustrates the danger. The trooper who stopped the car did not have a dog, so he had to wait for one. As in Rodriguez's case, he dragged out the encounter after issuing a warning by asking for permission to walk a dog around the car. After the driver repeatedly said no, the trooper detained him anyway, ostensibly because the driver seemed nervous (an all-purpose excuse to detain anyone stopped by police). If the trooper had let the driver go after issuing a warning, there would have been no purported dog alert to justify the search that discovered the money.