Nebraska traffic-stop case headed to U.S. Supreme Court

[Omaha Steve]

Source: Omaha World Herald

By Alissa Skelton

The U.S. Supreme Court has agreed to hear a Nebraska case challenging the length of time officers can hold drivers during traffic stops.

Inmate Dennys Rodriguez, 30, appealed his conviction of possession with intent to distribute methamphetamine, arguing that the evidence should not have been admissible in court because his traffic stop was unreasonably prolonged without reasonable suspicion.

A high court opinion on Rodriguez’s case will set legal precedent nationwide on how long law enforcement can reasonably hold a driver who has been pulled over and ticketed, said David Stickman, Nebraska federal public defender.

Police stopped Rodriguez in 2012 near Valley, Nebraska, after he swerved into the shoulder lane. Rodriguez told the officer that he jerked his car to avoid a pothole.

FULL story at link.


Read more: http://www.omaha.com/news/crime/nebraska-traffic-stop-case-headed-to-u-s-supreme-court/article_ee37b94a-4e56-11e4-a08a-001a4bcf6878.html

[George II]

1. This is an important issue, but a horrible case on which to base future police stops.

[JimDandy]

3. I agree. n/t

[billhicks76]

9. Gt That Right

Police are just a criminal gang that thieve on our highways daily as the recent Washington Post series demonstrated.

[True Blue Door]

19. Some departments are crooked, some are lazy in controlling their people, some are pretty decent.

[JimDandy]

2. There's a little confusion in the article

about what the court is to decide. First the article states the length of the stop is the focus then this follows at the end of the article:

"The U.S. Supreme Court will now decide if the evidence should be suppressed due to unreasonable search and seizure."

[unblock]

4. i don't think this is where the confusion is

yes, the supreme court is to decide if the evidence should be suppressed due to unreasonable search and seizure.

well-established constitutional law is that evidence is suppressed if acquired via unreasonable search and seizure (oh, there are probably a few exceptions, i'm not a lawyer).

the question before the court would be whether or not what happened in this case constitutes an unreasonable search and seizure.


i think the confusion is, what is the basis for claiming that the search and seizure was unreasonable?

was it the amount of time it took to deploy the dog?
was it the fact that he didn't consent to the dog sniff but the dog was deployed anyway?
is the state trying to argue that refusal to consent to the dog sniff constitutes reasonable suspicion!?

the article is a bit muddled.

[JimDandy]

5. Your analysis sounds right.

Muddy article.

[happyslug]

7. The dog was deplored about six to seven minutes after the stop.

Read the underlying 8th Circuit Court of Appeals decision below which states that fact and ruled a 10 minute delay is NOT unreasonable.

A side issue is the dog was in the car that pulled over the suspects, but was NOT deployed till another officer arrived (total two Police officers). The officer who pulled over the suspect did NOT deploy the dog till he had backup.

[unblock]

8. the article (o.p.) says 27 minutes -- the 21 minutes to get to the written warning came first.

only then did he wait 6-7 minutes to deploy the dog, after backup had arrived.

so perhaps it is just a matter of, is 10 minutes ok but 27 minutes not?

[happyslug]

11. The opinion sets forth the time quite well.

The opinion states the following times:

1. "Struble initiated a traffic stop of the vehicle at 12:06 a.m."

2. "Struble issued a written warning to Rodriguez at 12:27 or 12:28 a.m."

3. "Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive."

4. "At 12:33 a.m., a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez’s car."

5. "The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later."

Thus the STOP was from 12:06 till 12:27 (21 minutes) but that was for the officer to WRITE A TICKET. The Officer then stood in front of the Vehicle so the Defendant could not leave till a Sheriff Deputy arrived six minutes later. That "stop" was only six minutes.

Thus the Eight Circuit ruled that the only issue was the six minutes EXTRA it took for the second officer to arrive, the 21 minutes to write the ticket did not count and a less then ten minute delay for another officer to arrive is reasonable.

Thus you can have at several issues:

1. In such situation where it took 21 minutes to write a ticket is it reasonable to add another 7 minutes to that time? i.e. not only delay do to the paperwork involved, but an additional delay over and above what was needed to do the paperwork of a ticket.

2. When the FIRST officer had the DOG, was it really necessary to wait for backup? Why NOT walk the dog around when the Officer first walked to the Defendant's car? The Officer thought it was safe enough for him to approach the Defendant, but the officer did not think it was safe enough for his dog??? Was this a reasonable reason for the delay in the search? Remember once the dog indicated there was drugs, the first officer could HOLD the suspects till backup arrived. Thus why DELAY the search by the dog?

3. Is a 27 minute stop reasonable by and inself given modern electronics? Was it reasonable given the circumstances to wait 27 minutes before doing the search with the dog? (This is different from the following for the following is saying the courts need to encourage the latest technology, this argument is just any 27 minute delay, for any reason, is by itself excessive).

4. Is a 21 minute stop reasonable by and in itself given modern electronics? With modern scan readers why can such a ticket NOT be written in under 10 minutes? The court has always like Judge Learned Hand's opinion that the law should encourage technological development if such technology reduces harms to society. Thus the court may be willing to force ALL states to have license readers in ALL police cars and all license be machine readable. i.e. the officer only has to scan the license to download names, address etc into the computer, no hand punching AND require that such equipment be accessible 24 hours a day. i.e. the officer scans the license, type in the violation and the ticket is printed within two minutes. It can be done today, thus why a 21 minutes delay to write a ticket? If the state is to cheap to buy an up to date computer system, should driver's suffer do to the delay in doing the paperwork such an obsolete ticket system costs?

5. Given that it is now possible to put CHIPS into something like a license and such chips can be activated by a scanning which can be many feet away. Why does an officer HAVE to have someone license in his physical hands? Just scan the vehicle and pick up the data (Names, Addresses and License numbers) from the licenses even before the officer leaves his patrol car? Another argument that 20 minutes to write a ticket is to long given modern technology.

I personally I am hoping for the last one, that the court is going to say a 21 minutes delay to write a ticket is uncalled for given today's technology, but I suspect it will the second one, that the officer's belief it was to dangerous for his dog, but not himself is unreasonable in and by itself and thus the delay is excessive do to the failure of the officer to use the dog as soon as the Officer first walked to the Defendant's car.

[George II]

17. From the way the article reads, they're pretty much going to rule only....

....on the length of time he was held, not that the ultimate search was unreasonable.

Unfortunately Rodriguez gave a legal confession and then withdrew it, and the drugs were found. That is going to complicate the issue.

[happyslug]

6. Here is the 8th Circuit Court of Appeals Decision:

http://media.ca8.uscourts.gov/opndir/14/01/131176P.pdf

WOLLMAN, Circuit Judge.
Dennys Rodriguez entered a conditional guilty plea to one count of possessing with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1). Rodriguez appeals from the district court’s order denying his motion to suppress evidence. We affirm.

On March 27, 2012, just after midnight, police officer Morgan Struble observed a vehicle veer slowly onto the shoulder of the highway, before it jerked back onto the road. Struble initiated a traffic stop of the vehicle at 12:06 a.m. Struble is a K-9 officer, and his dog Floyd was with him that night.

Struble approached the vehicle on the passenger’s side. The driver identified himself as Rodriguez. When asked why he drove onto the shoulder, Rodriguez replied that he had swerved to avoid a pothole. The passenger, who would not make eye contact with Struble, identified himself as Scott Pollman. Struble gathered Rodriguez’s license, registration, and proof of insurance and asked Rodriguez to accompany him to the patrol car. Rodriguez asked if he was required to do so, and Struble said that he was not. Rodriguez then decided to wait in his own vehicle.

Struble went to his patrol car to complete a records check on Rodriguez. When he returned to Rodriguez’s vehicle, Struble asked Pollman for his identification and inquired where Pollman and Rodriguez had been. Pollman explained that they had traveled to Omaha, Nebraska, to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska. When Struble went to his patrol car for a second time, he completed a records check on Pollman and called for a second officer.

Struble issued a written warning to Rodriguez at 12:27 or 12:28 a.m. Struble then asked for permission to walk his dog around Rodriguez’s vehicle. When Rodriguez refused consent, Struble instructed him to exit the vehicle. Rodriguez then exited the vehicle and stood in front of the patrol car while they waited for a second officer to arrive. At 12:33 a.m., a deputy sheriff arrived, and a minute later, Struble walked the dog around the outside of Rodriguez’s car. The dog alerted to the presence of drugs halfway through the second pass, approximately twenty or thirty seconds later. All told, seven or eight minutes had passed from the time Struble had issued the written warning until the dog indicated the presence of drugs. A search of the vehicle revealed a large bag of methamphetamine.

As set forth above, Rodriguez was charged with possessing with intent to distribute methamphetamine. The district court denied Rodriguez’s motion to suppress the evidence, holding that the delay caused by the dog sniff did not violate Rodriguez’s Fourth Amendment right to be free from unreasonable seizures. On appeal, Rodriguez argues that his motion should have been granted because the stop was unreasonably prolonged by the dog sniff in the absence of reasonable suspicion to continue his detention. Rodriguez does not challenge the validity of the initial stop.

“[A] dog sniff conducted during a traffic stop that is ‘lawful at its inception and otherwise executed in a reasonable manner’ does not infringe upon a constitutionally protected interest in privacy.” United States v. Martin, 411 F.3d 998, 1002 (8th Cir. 2005) (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005)). We have held that once an “officer decides to let a routine traffic offender depart with a ticket, a warning, or an all clear[,] . . . the Fourth Amendment applies to limit any subsequent detention or search.” United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir. 1999). Accordingly, a dog sniff may be the product of an unconstitutional seizure, “if the traffic stop is unreasonably prolonged before the dog is employed.” Martin, 411 F.3d at 1002 (citing Caballes, 543 U.S. at 407). A brief delay to employ a dog does not unreasonably prolong the stop, however, and we have repeatedly upheld dog sniffs that were conducted minutes after the traffic stop concluded. See, e.g., United States v. Alexander, 448 F.3d 1014, 1017 (8th Cir. 2006) (four-minute delay upheld as a de minimis intrusion on personal liberty); Martin, 411 F.3d at 1002 (two-minute delay upheld); United States vs Morgan 270 F.3d 625, 632 (8th Cir. 2001) (delay of “well under ten minutes" upheld); $404,905.00 in U.S. Currency, 182 F.3d at 649 (two minute delay upheld).

Although the dog was located in the patrol car, Struble waited to employ it until a second officer arrived, explaining that he did so for his safety because there were two persons in Rodriguez’s vehicle. The resulting seven- or eight-minute delay is similar to the delay that we have found to be reasonable in other circumstances. See Morgan, 270 F.3d at 632 (“We do not believe that the few minutes difference between the time in this case and $404,905 has constitutional significance.”). We thus conclude that it constituted a de minimis intrusion on Rodriguez’s personal liberty.

In light of our conclusion that the traffic stop was not unreasonably prolonged, we need not decide whether Struble had reasonable suspicion to continue Rodriguez’s detention. The order denying the motion to suppress is affirmed.

[Comrade Grumpy]

10. I was detained on the side of I-70 in Utah for 45 minutes waiting for a drug dog.

That is bullshit.

"Am I under arrest?"

"No."

"Well, then, am I free to go?"

"No."

What the fuck?

[happyslug]

12. Police and they definition of "Arrest"

It came up in a US Supreme Court case I think in the 1960s, when the State's Attorney said the Defendant had NOT been under arrest, one of the Justices asked the Attorney could the Defendant then leave? When the Attorney said no, the Justice pointed out then the man was UNDER ARREST for that is what being "under arrest" means.

That state had a special definition of "arrest" and technically the defendant had NOT been under that type of arrest. The US Supreme Court said such definitions do NOT apply to its cases, under arrest includes anytime someone can NOT leave do to an order by an officer.

[Calista241]

15. Technically he was being detained.

In a detention, the police only need reasonable suspicion to stop an individual, and a reasonable person would feel as though they could leave in a short amount of time. This timeframe can vary a bit based on the circumstances, but the U.S. Supreme Court has held that 20 minutes or so is a reasonable timeframe for detaining someone. Reasonable suspicion means that there were objectively reasonable circumstances to suspect that the detained individual was involved in, or was about to be involved in a crime.

http://criminal-law.freeadvice.com/criminal-law/arrests_and_searches/arrest-detention.htm

[happyslug]

18. I question that "Free Advice"....

The General rule is there is NO difference between being "Detained" and being "Arrested", both involve you NOT being able to leave. If you can NOT leave you are under arrest, as the US Supreme Court has noted repeatedly. That the arrest is for a few minutes or hours is unimportant to the Courts, the key is you can NOT leave.

Police like making a difference between the two, for they are taught if they "Arrest" someone, they have to read the person "Arrested" his rights. On the other hand if they just "Detain" the person the Police are taught they do NOT have to read the suspect their rights. The problem is such "Detention" MUST be related to some act the officer is doing, for example writing a ticket, that does NOT involve asking any questions.

The Police do NOT like saying (and thinking) that they are arresting someone when they pull him or her over to give her a traffic ticket, but that is what the officer is doing. Thus the police call it detention instead of an arrest and several courts have adopted that language in the cases in front of them, but in those cases the issue was NOT the arrest but something else, For example the Following:

A. Someone was "detained" so the officer could write a ticket and then he told the officer of the illegal act he was doing WITHOUT being asked any questions, the court ruled that was NOT illegal for the officer was NOT asking any question NOT that the person was NOT under arrest).

B. Someone was "detained" while a dog was sent for to do a drug search. Again no question needed to be asked and thus no Miranda Warning needed to be given. Thus the "Detention" was an arrest that did NOT involve any questioning. In such a case the issue of being detained while a dog is brought in was NOT at issue, the issue was the waiting period for the dog to get to the area to be "sniffed" by the dog.

Thus if it was an issue, the court have ruled that a "Detention" was an Arrest. The problem is that in most cases the issue that the subject was under arrest is NOT at issue, In such cases thus the Court thus retains the language of the arresting officer i.e the subject was "Detained" not "Arrested". That does not mean there is any difference between being "Arrested" and being "Detained" but the courts did NOT have to address any difference between being "Arrested" and "Detained" in deciding that case.

My point is simple, if you can NOT leave, you are under arrest. The key to being under arrest is you are "Detained" i.e can not leave. Short periods of arrest so that an officer can determine some facts are within the power of police officers. On the other hand, if any lengthy period of arrest occurs they has to be probable cause for such a lengthy detention. The longer the period of detention requires more evidence of a need for the officer to detain someone. i.e after about 20 minutes the officer better have something that amounts to probable cause as oppose to mere suspicion. On the other hand a 10-15 minute hold on someone while the Officer prepares a ticket is generally regarded as reasonable without probable cause of another crime (remember when you are given a ticket you are being charged with a crime, generally a summary offense punishable by fine only, but still a crime, i.e it is a CRIME to speed or travel without a taillight).

See Arizona vs Miranda:

http://scholar.google.com/scholar_case?case=6386252699535531764&q=Arrest+detention+US+Supreme+Court+-%22Law+Review%22&hl=en&as_sdt=6,39

48 hours is the max a person can be held by the Police before taking the suspect to a Magistrate or judge (Most states have shorter time period, this is the FEDERAL Maximum under the US Constitution. Please note Justice Marshall, Blackmun and Stevens dissented and wanted to uphold the lower court decision, which set the limit at 36 hours. Justice Scalia wanted to go further, he insisted on a 24 hour rule, i.e. must go in front of a judge within 24 hours of an arrest. Read his dissent, it is much more to the point then O'Connor's majority decision).

http://scholar.google.com/scholar_case?case=418195808368952125&q=Arrest+detention+US+Supreme+Court+-%22Law+Review%22&hl=en&as_sdt=6,39&as_ylo=2010

Please note detention is used as an incident of an arrest in the above opinion, not as a separate system to hold a person.

In, the court stated that the first case where the court UPHELD the detention of a person OTHER then under the requirement of probable cause as stated in the 4th amendment was Terry vs Ohio.

Terry for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons must 209*209 be based on probable cause. That case involved a brief, on-the-spot stop on the street and a frisk for weapons, a situation that did not fit comfortably within the traditional concept of an "arrest." Nevertheless, the Court held that even this type of "necessarily swift action predicated upon the on-the-spot observations of the officer on the beat" constituted a "serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment," 392 U. S., at 20, 17, and therefore "must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Id., at 20. However, since the intrusion involved in a "stop and frisk" was so much less severe than that involved in traditional "arrests," the Court declined to stretch the concept of "arrest"—and the general rule requiring probable cause to make arrests "reasonable" under the Fourth Amendment—to cover such intrusions. Instead, the Court treated the stop-and-frisk intrusion as a sui generis "rubric of police conduct," ibid. And to determine the justification necessary to make this specially limited intrusion "reasonable" under the Fourth Amendment, the Court balanced the limited violation of individual privacy involved against the opposing interests in crime prevention and detection and in the police officer's safety. Id., at 22-27. As a consequence, the Court established "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Id., at 27.[11] Thus, Terry departed from traditional Fourth Amendment analysis in two respects. 210*210 First, it defined a special category of Fourth Amendment "seizures" so substantially less intrusive than arrests that the general rule requiring probable cause to make Fourth Amendment "seizures" reasonable could be replaced by a balancing test. Second, the application of this balancing test led the Court to approve this narrowly defined less intrusive seizure on grounds less rigorous than probable cause, but only for the purpose of a pat-down for weapons.

The opinion goes on about how such detentions are limited:

Respondent State now urges the Court to apply a balancing test, rather than the general rule, to custodial interrogations, and to hold that "seizures" such as that in this case may be justified by mere "reasonable suspicion."[14] Terry and its 212*212 progeny clearly do not support such a result. The narrow intrusions involved in those cases were judged by a balancing test rather than by the general principle that Fourth Amendment seizures must be supported by the "long-prevailing standards" of probable cause, Brinegar v. United States, 338 U. S., at 176, only because these intrusions fell far short of the kind of intrusion associated with an arrest. Indeed, Brignoni-Ponce expressly refused to extend Terry in the manner respondent now urges. The Court there stated: "The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause." 422 U. S., at 881-882 (emphasis added). Accord, United States v. Martinez-Fuerte, supra, at 567.

In contrast to the brief and narrowly circumscribed intrusions involved in those cases, the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor's home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was "free to go"; indeed, he would have been physically restrained if he had refused to accompany the officers or had tried to escape their custody. The application of the Fourth Amendment's requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an "arrest" under state law. The mere facts that petitioner was not told he was under arrest, was not "booked," and would not have had an arrest record if the interrogation had proved fruitless, while not insignificant for all purposes, see Cupp v. Murphy, 412 U. S. 291 (1973), obviously do not make petitioner's 213*213 seizure even roughly analogous to the narrowly defined intrusions involved in Terry and its progeny. Indeed, any "exception" that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are "reasonable" only if based on probable cause.

http://scholar.google.com/scholar_case?case=2553869472151391304&q=Arrest+detention+US+Supreme+Court+-%22Law+Review%22&hl=en&as_sdt=6,39&as_ylo=2010

In Baily vs the US (2013 case) the court made the following ruling:

Because detention is justified by the interests in executing a safe and efficient search, the decision to detain must be acted upon at the scene of the search and not at a later time in a more remote place. If officers elect to defer the detention until the suspect or departing occupant leaves the immediate vicinity, the lawfulness of detention is controlled by other standards, including, of course, a brief stop for questioning based on reasonable suspicion under Terry or an arrest based on probable cause

http://scholar.google.com/scholar_case?case=4051530134356310504&q=Arrest+detention+US+Supreme+Court+-%22Law+Review%22&hl=en&as_sdt=6,39&as_ylo=2010

[bigdarryl]

13. This fucked up Supreme court always side with the cops on issues like this

[happyslug]

14. Then why did the Court take this case? All the court had to do is refuse cert.

Something is up, at least four justices want to CHANGE this ruling, why else would they take it up. The court does NOT like taking on cases that divide the court, they prefer 9-0 decisions if such decision can be made. We hear of the split decisions for they tend to be newsworthy, but many decisions are 9-0.

The Court MAY want to put a restriction on time on holding someone to be "Searched" by a dog, but I suspect it has to do with the 20 minutes to write a ticket. Given modern technology why should it take so long?

[NYC Liberal]

16. They unanimously struck down warrantless GPS tracking.

They unanimously said a warrant is required to search a cell phone.

They ruled that cops need a warrant to bring a drug sniffing dog onto a suspect's property.

So it's not "always". Given their history, I am hopeful with this case.