Suppose a police or highway patrol officer notices that one of your tail-lights is out, and pulls you over. After warning you to get the light fixed (or maybe giving you a ticket), he begins to have a gut feeling that you have illicit drugs somewhere in your car. He asks if you are willing to consent to a search but you, being a sensible person, refuse. Your refusal makes him even more convinced that you have something to hide, and based on probability, he figures it has to be drugs.
At this point, the cop does not have anything that would constitute probable cause, but he is loathe to just let you go, so he orders you to sit tight while he calls in a drug-sniffing dog and his K9 handler. You protest, and say to the officer that you have a pressing engagement soon, and ask how long you will have to wait. The cop tells you that you must wait until the dog and his handler arrive, however long that may take.
So, what are the limits in this situation? Does the cop have the right to blow your whole day if the handler and his dog are delayed? Without arresting you for something, can he just detain you for an extra minute, an extra hour, two hours, three, what?
We may soon have a definitive answer. Yesterday, the U.S. Supreme Court agreed to take on appeal the Rodriguez versus United States case, a lawsuit which bears directly on the issue of traffic stops and their duration. Here is an excerpt from the cert petition, the document in which SCOTUS outlines their justification for taking a case on appeal from a lower court:
This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are “de minimis” intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.
What, exactly, is a “de minimus” intrusion, expressed in terms of time? The lower court, from which the case was appealed, defined it as from seven to eight minutes. In a similar case from Nevada (State versus Beckman), a lower court had said that nine minutes was too long.
Orin Kerr, a distinguished George Washington University law professor and one of the principle law bloggers at the Volokh Conspiracy, put up a post on this case back in February, as well as a second on October 2nd, HERE. An excerpt from the first post:
Although the Supreme Court has held that the use of the dog is not a search, the length of a warrantless stop must be reasonable. The officer can’t delay the driver forever. This raises a question of Fourth Amendment law that has led to a lot of lower court litigation: If the officer has no reasonable suspicion that drugs are in the car — that is, he only has a hunch — how long can the traffic stop be delayed before the dog arrives and checks out the car?
My take is that ten minutes should be an absolute limit, less if the suspect has articulated an urgent need to be on his way. By the end of next year, the Supremes will have defined a limit, or dodged the issue. I’ll be interested to see which way they go.