So you're cruising along 93-North (thanking God there's no protesters blocking your way) at about 11:00 at night to have some fun in the city when blue lights explode in your rear view mirror. You immediately pull over to one of the many shoulder-less areas of 93 and get your license and registration ready. You want this thing over with so you can get on with your night. State Cop walks up to your car, asks for license and registration, and says did "you know" your taillight was out. You say something other than "No, Sir" (first mistake); the Trooper grumbles and walks back to his cruiser. You sit there for 20 minutes. You give the Trooper the benefit of the doubt and think he's probably just running your car to see if you're insured, etc., but snidely and unfairly imagine him polishing off his 3d donut of the evening at your expense, even though if you had to admit it, he's more fit than you. Eventually he comes back to your car and says, "I'm writing you a ticket for your busted taillight, but before I do you're gonna sit here while the K9 unit comes in to check out your car; should be another 45 minutes."
Can he do this? Up to now, the answer, or at least the common police practice has been, under certain limited circumstances, he can. Because of this, the Supreme Court of the United States (SCOTUS) is now deciding whether this last part: whether or not the prolonged detention of you and your car for the express purpose of summonsing a trained K9 unit (certified drug-sniffing dog) without your knowledge to search your vehicle without your permission (or a warrant) just because the Trooper has nothing more than a mere "hunch" that you might have drugs in your car based on how you look, or worse, how you looked at him, is permissible under the Fourth Amendment to the Constitution.
As a longtime criminal defense attorney who routinely challenges the constitutionality of police searches in state and federal court, I should tell you in these situations there are two things you should know about the limits of the police power in terms of any traffic stop: (1) the "stop," and all justification for your detention, ends when the "mission" (i.e. the purpose of the stop) is complete; and (2) cops have to work diligently towards completion of that mission. So in the hypothetical above, the question is at what point has the purpose of the stop for a busted taillight been fulfilled? Is it when the Trooper hands you the ticket? Is it when he's written your ticket while sitting in his cruiser? Is it when he came to the conclusion all he's going to do is write you the ticket? The other question is can the Trooper truly be diligently working towards completion of the mission (i.e. giving you a ticket for a busted taillight) when he's sitting in his car for an extended period to make it look like he's just "busting your chops" and showing you who's boss, when he's actually instead waiting for the K9 unit he just called to show up?
During related oral argument before SCOTUS in Rodriguez v. United States, Justice Antonin Scalia raised an interesting issue which would seem the be-all-end-all of the case. He asked whether the checking of the valid license, checking of the valid registration, checking for the driver's history of warrants, which happens during every traffic stop, is really part of the "mission" of the traffic stop. It's a fair point: what does your license/registration have to do with investigating a busted taillight? Justice Scalia posed a further question: if we detain the driver some extra time for those things to be looked into by the cop even if they're not part of the "mission," why shouldn't further detention for a K9 to arrive be allowed?
The answer to this question is of primary importance. If we are going to add on all this extra stuff (i.e. checking valid license/registration and checking for default warrants) during a stop, which prolongs a driver's detention on the side of the road, and allow it to happen without violating the Constitution, then there is no principled reason for also excluding the dog sniff. As a result, the whole case will turn on why doing the license/registration check and checking for default warrants is somehow different from waiting for the K9 unit to come. The answer I have to this question, which almost every court can get behind, is that the other stuff has to do with police safety while the dog sniff does not. It's important for cops to know who they're dealing with while conducting traffic stops - it's said that the highest rate of law enforcement deaths occur while conducting those stops. That same rationale does not apply to the dog sniff, however. In fact, having the person sit around waiting for a dog to arrive runs contrary to the police safety idea altogether because it provides more time for something bad to potentially happen during the course of the stop. As a result, detaining a driver some extra time so the cop can check out the person's history does not offend the Constitution because it protects the cop, but waiting for the K9 unit offers no such protective aspect.
One problem with the officer safety solution is that if an officer sees someone has a prior criminal record, that officer could be justified holding the car while he awaits back up so the he can safely conduct the traffic stop. That creates a whole host of problems for drivers with prior records (for obvious reasons). Waiting for backup could take just minutes, to 30 minutes, to an hour (imagine this happening in the boonies where there's only a couple cops in a whole town). "Waiting for back-up" can also take just the amount of time needed to get a K9 unit, especially when such "assets" are often shared between police departments in separate cities and towns, therefore defeating the nice dividing line explained above between police safety and waiting around for a K9 unit.
SCOTUS is going to have to sort all of this stuff out in its anticipated ruling. What I'm concerned about is law enforcement simply coming up with new ways of getting around whatever ruling the Supreme Court issues. If, for example, SCOTUS responds with a formalistic approach and says, "the traffic stop ends when the cop writes/hands over the ticket," law enforcement officers may switch their approach and simply wait before they do either of those things, thereby giving time for the K9 unit, which they called the moment they returned to their cruiser, to arrive . (But remember! If they do that, they must be doing something else because they must act diligently in furtherance of the mission.) We may also see speeding traps with cars that also already have K9 units on scene so that the dog sniff can occur at the same time the ticket is being written. We might also see situations where people with prior records are being detained longer, and police reports being written up emphasizing concern for their safety when conducting the stop to justify a wait for the K9 unit. Persons caught speeding at a speeding trap and persons with prior criminal history should not automatically be subject to canine sniffs of their vehicles. Let's all hope SCOTUS comes up with a reasonable bright-line ruling that not only protects the police, but also innocent drivers from being unduly delayed and detained by law-enforcement for excessive periods of time.
I'll be keeping an eye on this case to see if SCOTUS "let's the dogs out" or keeps traffic moving along; either way, check back to the BBLawg often for updates on this case and other important matters affecting your legal rights.
About the author:
Brad Bailey was a felony prosecutor in Manhattan (NY) and an Assistant District Attorney in Middlesex County (MA) where he prosecuted murders, sex crimes and serious narcotics trafficking cases. He went on to prosecute federal drug crimes and the mafia/organized crime as an Assistant U.S. Attorney for the U.S. Attorney's Office in Boston. A five time Super Lawyer and Top 100 Trial Attorney, he is AV rated by Martindale and has been a member of the defense bar since 1999, and uses his vast experience on both sides of the law to defend clients accused of felonies in both state and federal courts in MA, NY and throughout New England and across the country. He has extensive experience defending state and federal drugs crime, and has aggressively litigated the constitutionality of state and federal seizures of evidence and contraband in hundreds of cases.