Search & Seizure: So, What’s Going On?
(Rodriguez v. U.S., 135 S. Ct. 1609, April 21, 2015)
So What’s the Big Deal? Many attorneys in Texas were not impressed by the Rodriguez decision. Most people assumed that the Supreme Court was establishing a rule that when the reason for the traffic detention has been completed then the detention must cease. A prolonged traffic stop was illegal. In federal court, the “de minimis” doctrine had been established. The de minimis rule allowed the officer to continue the completed detention for up to 12–15 minutes, which was considered not to be a great enough violation of the Fourth Amendment to be illegal. The origin of the de minimis rule was Pennsylvania v Mims, 434 US 106, 1977, and was originally based on officer safety.
In Rodriguez, the court reiterated its holding in Cabales, 543 U.S.405, 407 (2005), that a traffic stop prolonged beyond the time needed for the officer to complete his traffic-based inquiries is unlawful. Basically the de minimis rule was abolished.
The rule in Texas had been different. It had already been held that when the purposes of the traffic stop had been effectuated, the detention must cease. Balentine v State, 71 S.W.3d 763, 770 (Tex. Crim. App. 2002); see also Davis v State, 947 S.W.2d 240, 244–245 (Tex. Crim. App. 1997). So what’s the issue about Rodriguez?
The two cases the Supreme Court relied on in Rodriguez, supra, were Cabales, supra, and Johnson, 555 U.S. 323 (2009). What’s important about Rodriguez is the restatement that the authority for the seizure ends “when the task tied to the traffic investigations are or reasonably should have been completed.” See Sharp, 470 U.S. 675, 686 (1985). In determining the reasonable duration of the stop, it is appropriate to determine if the police diligently pursued the investigation.
This opens up a whole new analysis that did not exist as long as the de minimis rule applied. Now, not only must the officer terminate the detention when the purposes of the stop have been effectuated. He must also diligently pursue the purposes of the traffic stop and not divert and do things that cause the traffic stop to be extended.
In Rodriguez a canine officer stopped Mr. Rodriguez for driving on a highway shoulder, a violation of Nebraska law. After the officer had attended to everything relating to the stop—including checking the driver’s license of Mr. Rodriguez and his passenger and issuing a warning—he asked Mr. Rodriguez for permission to walk his dog around the vehicle. When Mr. Rodriguez refused, the officer detained him until a second officer arrived. The first officer then retrieved his dog, who alerted to the presence of drugs in the vehicle. The ensuing search revealed methamphetamine. Seven or eight minutes elapsed from the time the officer issued the warning until the dog alerted.
Mr. Rodriguez was indicted on federal drug charges. He moved to suppress the evidence seized from the vehicle on the ground, among others, that the officer prolonged the stop without reasonable suspicion in order to conduct the dog sniff. The magistrate judge recommended denial of the motion. He found no further reasonable suspicion supporting the continued detention, but under the Eighth Circuit precedent, he concluded that prolonging the stop by seven to eight minutes was only a de minimis intrusion in the defendant’s Fourth Amendment rights and for that reason was permissible. The district court then denied the motion to suppress. Mr. Rodriguez entered a conditional plea of guilty and was sentenced to five years in prison. The Eighth Circuit affirmed. The Supreme Court vacated the Eighth Circuit and remanded.
The opinion in Rodriguez indicates that a routine traffic stop is more like a brief detention under Terry v. Ohio, 392 U.S. 1(1968), than an arrest. It’s tolerable duration is determined by the purpose of the detention, which is to address the traffic violation that warranted the stop and attend to related safety concerns. The Fourth Amendment may tolerate certain unrelated investigations that do not lengthen the roadside detention, but a traffic stop “becomes unlawful if it prolongs the stop beyond the time reasonably required to complete the mission” of issuing a ticket. Cabalas, supra. In concluding that the de minimis intrusion here could be offset by the Government’s interest in stopping the flow of illegal drugs, the Eighth Circuit relied on Mims, supra. The officer’s safety interest in Mims, however, stemmed from the danger to the officer associated with the traffic stop itself. On-scene investigation into other crimes detours from the officer’s traffic control mission and therefore gains no support from Mims, supra. Furthermore, the Government’s argument that an officer who completes all related traffic tasks expeditiously should get extra time to pursue an unrelated criminal investigation was unpersuasive. “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.” The determination adopted by the district court that detention for the dog sniff was not independently supported by individualized suspicion was not reviewed by the Eighth Circuit. That question therefore remains open and the case was remanded.
Therefore, the cases after Rodriguez have fallen into two categories. The first category has been to continue the old reasonable suspicion investigation. Does reasonable suspicion to continue the detention exist independent of the traffic violation? The other area of concern is whether or not the officer has diligently pursued the investigation of the traffic stop or whether he has delayed, so that he may divert into other areas which prolong the detention.
The law is reasonably well settled, although extremely confused, on what constitutes reasonable suspicion. The Fourth Amendment limits the permissible length of a traffic stop. The tolerable duration of police inquiries in the traffic stop context is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns. This allows the officer to examine the driver’s license and vehicle registration and ask about the purposes and itinerary of the driver’s trip. These matters unrelated to the justification for the traffic stop do not convert the encounter into an unlawful seizure, so long as those inquiries do not measurably extend the duration of the stop.
But, once the tasks tied to the traffic infraction are, or reasonably should be, completed, the authority for the seizure ends unless the Government can show an exception to the Fourth Amendment that allows the stop to continue. An often invoked exception derives from Terry v. Ohio, and it permits prolonging the traffic stop if reasonable suspicion of additional criminal activity emerges during the investigation of the traffic violation. An officer may conduct certain unrelated checks during an otherwise lawful traffic stop, but may not do so in a way that prolongs the stop, absent the reasonable suspicion to justify detaining an individual. Almost anything is available to the officer that does not prolong the stop. In addition to driver’s license, insurance papers, and registrations, the officer may run a computer check on those documents and also run computer checks for warrants on the driver or the passenger. During the stop, the officer may also ask about purposes of the trip and may also ask about unrelated matters as long as the questioning does not prolong the stop. This includes asking different occupants of the vehicle the same questions to see if their stories diverge.
Of course, observations are not excluded. These observations may include but are not limited to nervousness, criminal history, use of another’s vehicle, traveling through known drug trafficking corridors, altered gas tanks, altered tires, or providing false or implausible information.
For Fourth Amendment purposes, reasonable suspicion exists if the police officer can point to specific articulable facts indicating that criminal activity is occurring or is about to occur. The level of suspicion of wrongdoing is obviously less than necessary for probable cause. Suspicion need not be related to a particular crime; it is sufficient to have reasonable suspicion that criminal activity may be afoot. The appellate courts review the district court’s reasonable suspicion finding de novo, looking at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing. (What is or is not reasonable suspicion based on specific examples is contained later in this article.)
As it relates to the Fifth Circuit, the cases go both ways. In U.S. v. Davis, 620 Fed. Appx. 295, U.S. App. Lexis 14745 (2015), the court found that nervousness, lack of criminal history, presence in a known drug trafficking corridor, having a vicious dog, and conflicting statements created reasonable suspicion independent of the traffic stop. In U.S. v. Madrigal, 2015 U.S. App. Lexus 16755, the Fifth Circuit found that the unreasonable travel itinerary, vehicle description, criminal history, and round trip on the same day were insufficient to establish reasonable suspicion to continue the detention. (Go figure, makes no sense!)
What are the courts across the State of Texas doing? In Texas v. Tucker, 13-15-00491-CR (13th Court of Appeals, May 5, 2016), the officer did surveillance on a known drug house. He watched Tucker arrive at the drug house, stay approximately two minutes, and then depart. The officer thought he had purchased narcotics, so he followed him and detained him for fail to signal within 100 feet of a turn. Tucker did not pull over immediately, but did not evade. The officer then testified that Tucker was nervous and his hands were shaking. Tucker informed the officer that he had been asked to pick up somebody from the location and take him home. The officer knew where the passenger lived and observed that Tucker did not take a direct route to drop him off. The officer believed that he had reasonable suspicion that Tucker was in possession of a controlled substance, and he asked for consent to search. Consent was denied and the traffic stop continued for approximately 15 minutes to conduct a free air sniff. The canine alerted. A subsequent search of the vehicle revealed drugs. The Court found that the initial traffic stop was lawful; however, the officer’s failure to diligently pursue the traffic investigation, and instead shifting directly to a narcotics investigation, violated Rodriguez. The court found that the information in the officer’s possession did not establish reasonable suspicion, and that the extension of the traffic stop was unlawful.
In Richardson v. Texas, No. 10-14-00217-CR (July 9, 2015)(2015 Tex. App. Lexis 7066), an officer observed Richardson stop at a known drug location and spend a few minutes near a prostitute. He believed a drug transaction had taken place. However, he did not see a drug transaction. Richardson left and drove home. Richardson was detained once he pulled into his own driveway. He was told he was stopped for failing to stop at a designated point of the intersection. Two minutes into the detention the officer called in the driver’s license information and there were no outstanding warrants. The officer asked Richardson if he had any prior drug charges and he replied in the negative. Officers then removed Richardson from his vehicle and placed him on his front porch. Shortly thereafter, he was told he was not going to be issued a citation for the traffic violation. The investigation then continued for some 15 additional minutes so that a dog sniff could be conducted. The canine alerted on the vehicle and subsequently drugs were found. The court held that the traffic investigation was fully resolved when he was told he would not be issued a citation or warning for the traffic violation. Richardson should have been allowed to leave at that point. The continued detention was without reasonable suspicion and unlawful under Rodriguez.
The most important part about Rodriguez is the affirmations of the law contained in the Johnson and Cabales cases. Not only must there be separate reasonable suspicion to continue the detention, but law enforcement must also diligently pursue the investigation of the traffic violation and not delay while pursuing unrelated issues in an attempt to try and create reasonable suspicion for another offense.