Federal Defenders and State Public Defenders are often the unsung heroes of the criminal defense bar. In so many of their cases, both the law and the facts are against them, and they have, at best, an ungrateful client. Yet, these lawyers work hard trying to make chicken salad out of chicken feathers.
One of the latest to accomplish the almost impossible in the federal courts is Shannon O’Connor, an Assistant Federal Defender in Omaha, Nebraska. On October 2, 2014, the Supreme Court granted his Petition for Writ of Certiorari in a case styled Rodriguez v. United States, ___S.Ct.___ (U.S. 2014) 2014 WL 1766135. Hopefully, the Justices will give us guidance on when a delay caused by a dog sniff during a traffic stop violates the defendant’s Fourth Amendment right to be free from unreasonable seizures. Mr. O’Connor represented Rodriguez in the District Court for Nebraska and before the United States Court of Appeals for the Eighth Circuit.
The facts in the case are as vanilla as they can be. Officer Morgan Struble was a K-9 officer who was riding with Floyd, the drug dog. Officer Struble observed Rodriguez’s vehicle as it veered off the shoulder of the highway and then jerked back onto the highway. He initiated a traffic stop and obtained Rodriguez’s license, registration, and proof of insurance. He went to his patrol car and completed a records check on Rodriguez. He returned to Rodriguez’s vehicle, obtained the passenger’s identification, and asked where they had been. After receiving an explanation, he returned to his patrol car, completed a records check on the passenger, and called for a second officer to assist him while he had Floyd walk around Rodriguez’s car.
After Officer Struble had returned Rodriguez’s license, registration, and proof of insurance to him, he issued a written warning to Rodriguez. With no additional information available to him and after the written warning had been handed to Rodriguez, Officer Struble asked Rodriguez’s permission to have Floyd walk around his vehicle. Rodriguez refused consent, and everyone waited for the second officer to arrive. When he did, Officer Struble let Floyd earn his keep. Floyd walked around Rodriguez’s car and—surprise—alerted to the presence of drugs. A search of Rodriguez’s vehicle revealed a large bag of methamphetamine.
After Rodriguez was indicted for violations of 21 U.S.C. §§ 841 (a)(1) and 841 (b)(1), Mr. O’Connor filed a Motion to Suppress the evidence seized during the traffic stop. A hearing was held by United States Magistrate Judge F. A. Gossett, who recommended to United States District Judge Joseph Bataillon of the United States District Court for the District of Nebraska that he deny Mr. O’Connor’s Motion to Suppress. Judge Bataillon did so, adopting the findings and recommendations of Judge Gossett.
Rodriguez entered a conditional guilty plea and then appealed the denial of his Motion to Suppress. A panel of the United States Court of Appeals for the Eighth Circuit [Wollman (who authored the opinion of the Court), Collton, and Gruender, Circuit Judges] affirmed the District Court, holding that the delay caused by the dog sniff did not violate the defendant’s Fourth Amendment right to be free from unreasonable seizures. U.S. v. Rodriguez, ___F.3d___, 2014 WL 341374 (8th Cir. 2014)
Judge Wollman’s opinion contains, in part, the following:
“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, 125 S.Ct. 834, 160 L.Ed.2d 842 (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, 125 S.Ct. 834). 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 v. 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) [emphasis added].
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.
The Rest of the Story
In a footnote to the opinion, Judge Wollman notes that Judge Bataillon adopted the findings and recommendations of Magistrate Judge Gossett. I called Judge Bataillon’s office and found that there were no written findings and recommendations; rather, there was an 83-page transcript of the hearing on Mr. O’Connor’s Motion to Suppress that concluded with Magistrate Judge Gossett dictating his findings into the record. There are four portions of the record that are you should be aware of:
- From the Testimony of Officer Riggle:
Q (by the Government): And approximately how long after the traffic stop ended do you think it took for your K-9 to indicate to Mr. Rodriguez’s vehicle?
A (Struble): I would say seven, eight minutes tops. From the time I issued the written warning and returned their documents, to the time my dog was actually indicating on the vehicle, I’d say seven to eight minutes [emphasis added].
- From the Argument of Mr. O’Connor:
So you have these guys that are not free to leave during the traffic stop, that’s real obvious. There’s no problem with that. But then they’re waiting. At some point in time they’re taken out of the car where they do the dog search, and these guys are waiting. They are held up. They are detained for whatever period of time, which I don’t believe is de minimus as the law says, hey, it’s okay, as long as it’s just a short period of time. It’s not a short period of time to these guys, not a short period of time when these guys know that they can’t leave. That’s not a short period of time [emphasis added].
Now, does the law say you can take the dog around anyway? Yeah, it does, because it is search—it’s not a search. But these guys are still detained waiting for the dog, waiting for the backup. They are still held a long time before the search—the dog sniffs the car and alerts.
So if there’s not reasonable suspicion, then they can’t detain them. You can detain them to have the dog for a de minimus period of time. This is longer than that [emphasis added].
- From the Findings of Magistrate Judge Gossett:
…Officer Struble then made a request for a backup, who ended up being a Douglas County Sheriff. And the time line that’s established by the testimony seems to be this. That the stop itself or the sighting was around 12:06. The stop 12:06.Then at 12:19, there was a call for the assistance of a second officer. The written warning is given to the Defendant at 12:25, which is a total of 19 minutes from beginning to end. And then Officer Struble testifies that the indication—that the dog was deployed about a minute after the arrival of the Douglas County Sheriff, which was—the deputy, which was at 12:33. And Struble also testifies that the indication by Floyd, the K-9, occurred at about seven to eight minutes after the warning ticket was given. So that’s the time line that’s basically involved here.
Then we get to the length of duration of the stop, and then we have that issue as to how we deal with the length of duration of stop. And here I’ve set the time line out, and I’m unwilling to conclude that the officer should have, at 12:19, concluded the traffic stop, or that it did, in fact, as a matter of law conclude for purposes of calculation of the time to 12:19. I note that he did conclude it later at 12:25, which was 19 minutes into the stop, which I do not find to be an inordinately large amount of time. And I also note that within—that the indication of the dog occurred seven to eight minutes after the warning ticket was issued [emphasis added].
The Defendant does not contest the issue of the exterior search by the dog. The exterior sniff is not a Fourth Amendment search. I do disagree with the Government as to probable cause. I do not think Officer Struble had anything other than a rather large hunch. There’s no probable cause here, in my opinion, to search this vehicle, absent the information given by the dog.
Now, an exterior dog sniff is not a Fourth Amendment search, according to the United States Supreme Court, and it does not require consent of the person who’s the subject of the search.
As to the deployment of the dog, I find that it was done on a reasonable basis, and that is not a search under the Fourth Amendment. I also find that the deployment of the dog, as I calculated the length of the deployment, to be under ten minutes, and there are specific cases dealing with deployment of the dog, and the violation and when and when not it is not de minimus. United States v. $404,905 in U.S. currency, which is, I believe, a Nebraska, our district, case, 182 F.3d 643 (8th Cir. 1999). The court held that a two minute delay to conduct a K-9 sniff with a de minimus—it was a de minimus intrusion on the traveler’s personal liberty [emphasis added].
In United States v. Morgan, 270 F.3d 625, the Eighth Circuit in 2001 extended that time to under ten minutes between the end of the traffic stop and the dog indicating on the vehicle. The court reiterated the position in United States v. Alexander, 448 F.3d 1014 (8th Cir. 2006), where it states “at most the defendant’s detention was extended some four minutes from the point of time which he was notified he would be receiving a warning ticket to the point at which the dog sniff was complete. Even if the lawful initiated traffic stop terminated at the point at which the trooper told Alexander that he would be receiving a warning ticket, the decision in $404,905 and Martin compels the conclusion that the subsequent conducted dog sniff was a de minimus intrusion on the defendant’s Fourth Amendment rights.
Here I find that the time is less than actually—from that time is less than ten minutes and would be included within the case law.
- From the Candid Comments of Magistrate Judge Gossett:
As an aside, Mr. O’Connor, I share a lot of your frustration in cases like this. I share the frustration that the dog search is not a search, which I’m of personal belief that it is. I share the belief that the intrusion of someone who is finished with a traffic stop can have, under Eighth Circuit law, up to ten minutes as de minimus. But I can read the law, and I have to apply it as read, not as I wished I could have written it. Because I don’t think ten minutes is de minimus. And I certainly don’t think that 15 is de minimus if you want to look at the other numbers that you proposed. But I’m not adopting those numbers in making my conclusion [emphasis added].
- This is a huge case. At last, maybe we will get some clarification on what de minimus means in a Fourth Amendment context. The two latest cases on point in the Texas and Fifth Circuit databases reflect our judges’ current thoughts of what de minimus means to them.
- Texas lawyers should be familiar with Matthews v. State, 431 S.W.3d, 2014 WL 258930 (Tex. Crim. App. 2014). In Footnote 27 to the opinion, Judge Cochran notes:
See, e.g., United States v. Cervine,
347 F.3d 865, 872–73 (10th Cir. 2003) (officers who legitimately made traffic stop could detain driver for 30 to 50 minutes for arrival of drug dog based on reasonable suspicion that driver was transporting illegal narcotics); United States v. Burton, 288 F.3d 91, 101–02 (3d Cir.2002) (officers who had reasonable suspicion to detain defendant did not exceed the time and scope of the detention when they called and waited for 30–45 minutes for a trained drug dog to conduct a drug sniff of the car [emphasis added].
- Federal lawyers might be familiar with U.S. v. Waldrip, No. 3:13-CR-16, 2014 WL 651942 (S.D. Tex. Feb. 19, 2014). Judge Costa writes:
Though the de minimis rule is most often applied to whether questioning unrelated to the stop amounts to an unreasonably long seizure, the Eight Circuit recently invoked it to reject an argument that the “seven- or eight-minute delay” between the issuance of a warning and the completion of a dog search unreasonably prolonged a traffic stop. See United States v. Rodriguez, 741 F.3d 905, 907–08 (8th Cir.2014), but see Stepp, 680 F.3d at 663–64 (finding that the “three and a half minutes” it took to conduct a canine search, coming after “six minutes of extraneous questioning,” resulted in “an unreasonable expansion of the initial stop,” though later finding that reasonable suspicion of other criminal activity justified the delay) [emphasis added].
- The folks in Omaha, Nebraska, were so very helpful to me in obtaining a record of the hearing on the Motion to Suppress. When I called to get a copy of Magistrate Judge Gossett’s findings and recommendations, I was told that there was no such document; however, there was a transcription of the hearing. I sent them a check on a Friday and—on the Monday following—received an 83-page transcript via email from Ms. Beth Evans, the District Court’s Case Administrator. The fee was a very reasonable $40.
- Mr. O’Connor was also a pleasure to visit with. In late September, he had told his boss that 18 years as an Assistant Federal Defender was enough and he was ready to hang it up. When he received the Supreme Court’s order granting certiorari, he had second thoughts and agreed to stay until after he argued Rodriguez’s case before the Supreme Court. He already has moot court sessions scheduled at Georgetown University and Northwestern University. Mr. Rodriguez is a lucky man. He has been well represented and he will continue to be well represented. Congratulations, Mr. O’Connor, and Good Luck at the Supreme Court.