Every dog has its day in court.

Photographer: Saul Loeb/AFP/Getty Images

Justices Try to Define a Traffic Stop

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Every so often when you’re watching a Supreme Court oral argument, you wish desperately that you could hit the pause button, take the lawyer aside and explain exactly what the lawyer should be saying in order to win the case -- and then hit play again. Reading the transcript of yesterday’s argument in Rodriguez v. U.S., a case about the permissibility of bringing a dog to sniff the car after a traffic stop, I had that feeling in spades.

The lawyer for the petitioner, Dennys Rodriguez, was Shannon P. O’Connor, the first assistant federal public defender in Omaha, Nebraska. Sometimes the justices take it easy on a lawyer who isn’t part of the elite Supreme Court bar. This was not one of those times. Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Anthony Kennedy whipsawed O’Connor. Justice Sonia Sotomayor tried to help him out, at times literally giving him the answer he needed.

Then, when Ginger D. Anders, the lawyer from the solicitor general’s office, took the podium, Justice Elena Kagan tried to reconstruct what O’Connor should’ve said. Yet for all this browbeating by the conservatives and assistance from the liberals, something crucial was still missing from oral argument: a coherent theory of the case.

The legal issue couldn’t be simpler: Can the police bring a dog to check for drugs in or around the car after a routine traffic stop? Where it does not violate the Fourth Amendment’s protection against unreasonable search and seizure?

There is a relevant precedent, the 2005 case Illinois v. Caballes. In that case, the state trooper with a drug-sniffing dog happened to be nearby when Roy Caballes was pulled over for speeding. While the trooper who made the stop wrote the ticket, the trooper with the drug-sniffing dog walked around the car. The dog smelled drugs, and an arrest was made; in its entirety, the stop and search together lasted no more than 10 minutes. The Supreme Court upheld the conviction. It explained briefly that “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner.”

What makes Rodriguez’s case different from Caballes’s is that the drug sniffing didn’t take place during the ordinary process of writing a traffic ticket. The justices took the case to resolve the broader legal question and draw clear lines around the legality of drug sniffing.

O’Connor’s troubles began when Roberts asked him if it would be all right for one officer to walk around the car with the dog while the other wrote a ticket -- essentially the facts of the Caballes case. O’Connor answered that it would be fine provided that “all of that was done before the traffic ticket was written.”

Scalia pounced on the suggestion with all the joy of a lion prepared to savage a hapless antelope struggling behind the flock. He pointed out that when police stop someone with broken taillight, they make all kinds of inquiries that have “nothing to do with the broken taillight.” Could these inquiries be made only before the ticket was written? Scalia asked. O’Connor answered lamely that “once the stop is finished” the person stopped “should be allowed to go no matter what.”

Alito then joined the fray. He offered O’Connor two choices: “Is it the length of time or is it the formal act of giving the ticket or the warning that … cuts things off?” he asked. O’Connor said it was the formal act. Then Kennedy went in for the kill. What if the police officer writes the ticket, puts it in his pocket and goes back to the car to make further inquiries, he wanted to know. O’Connor had no answer, blindly repeating that it all depended on whether it was the end of the traffic stop.

Sotomayor intervened in the hopes of stopping the bloodletting. “It has to be the acts related to the mission,” she said. “When you finish those, that's when the stop ends.” O’Connor grabbed at the suggestion like a drowning man at a lifeline. “Yes, Your Honor, that is exactly right,” he said.

But Scalia was not satisfied with the suggestion that it all depended on the “mission” of the traffic stop. At length, he reminded O’Connor of the questions unrelated to the taillight. And he proposed that, if the test was the mission of the traffic stop, a state could simply redefine the mission to include sniffing for drugs.

Here there was a good answer available to O’Connor -- but he didn’t make it. O’Connor should’ve said that all inquiries connected to an ordinary traffic stop relate to the two elements of a moving violation: the person driving the car and the car being driven. License and arrest history are connected to the driver. Registration and license plates are connected to the vehicle.

It was a disastrous tactical error to concede to Scalia that these inquiries had nothing to do with the taillight. In fact they have everything to do with a moving violation -- and that enables a simple and straightforward definition of the mission of a traffic stop.

From this definition of the mission, a simple constitutional rule would follow: The police have as much time as it takes to perform the elements of a traffic stop that are connected to the mission of investigating a moving violation -- and no more. In the Caballes case, the drug sniffing took place within that time frame. Anything beyond that time frame, however, amounts to an unreasonable search and seizure under the Fourth Amendment.

The justices might be able to get there. Justice Stephen Breyer, who loves standards and hates rules, took an active interest in declaring reasonableness as the test -- that requires him to explain what counts as reasonable, and the explanation should be that the time limit must be reasonable relative to investigating a moving violation.

Kagan came close to the same conclusion. First she got the lawyer from the solicitor general’s office to concede that “a dog sniff is not something that's entailed in a normal stop.” Then she observed that under Caballes, “you really can't detain somebody if you don't have some kind of objective reasonable basis for doing so.” That’s exactly right -- and it’s consistent with holding that there’s no objective reasonable basis to detain a driver for any longer than is necessary to investigate the conduct that occasioned the stop in the first place.

Here’s hoping the court takes the common sense route this time -- or else you can expect a long wait and a barking dog the next time you’re pulled over for speeding.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net