The Anatomy of a Traffic Stop:
Lessons after Rodriguez v. United States
NCDAA June Seminar
June 19, 2015
The Starting Point:
The Fourth Amendment of the United States Constitution protects citizens
against “unreasonable searches and seizures.” U.S. Const. Amend. IV. A traffic stop
effectuates a seizure against a driver and any passengers in the vehicle, giving each of
them standing to challenge the legality of the stop. Delaware v. Prouse, 440 U.S. 648
(1979) (traffic stop is a “seizure” under the Fourth Amendment); Brendlin v. California,
551 U.S. 648 (2007) (passenger is seized during traffic stop for purposes of the Fourth
Amendment).
The “Anatomy” of a Traffic Stop:
A.
The Initial Stop
Traffic stops typically occur under one of two circumstances. First, an officer
may stop a vehicle if she has probable cause or reasonable suspicion to believe that
the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806
(1996). The fact that an officer may have a motive other than a desire to enforce the
traffic code does not invalidate the stop under the Fourth Amendment. Id. at 818.
“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment
analysis.” Id.
Officers may also stop motorists at a checkpoint, provided the checkpoint is
designed for a permissible purpose. The Supreme Court has approved fixed Border
Patrol checkpoints designed to intercept illegal aliens, sobriety checkpoints aimed at
removing drunk drivers from the road, and roadblocks established for the purpose of
verifying a driver’s license and vehicle registration. See United States v. MartinezFuerte, 428 U.S. 543 (1976) (border checkpoints); Michigan Dept. of State Police v.
Sitz, 496 U.S. 444 (1990) (sobriety checkpoints); Delaware v. Prouse, 440 U.S. 648
(1979) (license/registration checkpoints). However, the Fourth Amendment does not
permit checkpoints “whose primary purpose [is] to detect evidence of ordinary criminal
wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Moreover, even
checkpoints established for a permissible purpose may be invalid if the resulting stops
are overly intrusive or the checkpoint protocol is not systematically enforced. See
Prouse, 440 U.S. at 661; State v. Piper, 855 N.W.2d 1 (Neb. 2014)).
In order to challenge to a traffic stop on the basis that the officer lacked probable
cause or reasonable suspicion that a traffic violation occurred, counsel must either
challenge the officer’s observations or demonstrate that the conduct for which the driver
was stopped does not, in fact, violate a traffic law. However, an officer is permitted a
“reasonable” mistake of law as to what conduct is covered by a particular provision of
the traffic code. Heien v. United States, 135 S. Ct. 530 (2014). Therefore, in addition to
showing that the law was not actually violated, defense counsel must show that an
officer’s interpretation of the statute was not reasonable. Id. at 541 (Kagan, J.,
concurring).
Challengers to checkpoint stops typically allege that the checkpoint was set up
for a crime-detection purpose or that it was improperly implemented by officers in the
field. To determine whether officer discretion was properly constrained at the
checkpoint, courts will consider “whether the checkpoint was approved and whether it
was operated in accordance with the approved plan and [ ] policy, as well as any other
circumstances that may indicate the exercise of unfettered discretion.” Piper, 855
N.W.2d at 13.
B.
The Traffic Investigation
Prior to the United States Supreme Court’s decision in Rodriguez v. United
States, 135 S. Ct 1609 (2015), the Nebraska Supreme Court had held that a traffic
investigation may include “asking the driver for an operator's license and registration,
requesting that the driver sit in the patrol car, and asking the driver about the purpose
and destination of his or her travel.” State v. Howard, 803 N.W.2d 450, 460 (Neb.
2011). The officer was also permitted to “run a computer check to determine whether
the vehicle involved in the stop ha[d] been stolen and whether there [were] outstanding
warrants for any of its occupants.” Id. Eighth Circuit precedent authorized similar
inquiries as part of a routine traffic stop. See, e.g., United States v. Garcia, 613 F.3d
749 (8th Cir. 2010).
Rodriguez arguably takes a narrower view of the actions that make up a routine
traffic investigation. Under Rodriguez, the authority to hold detain a driver during a
traffic stop is defined by the stop’s “mission”– “to address the traffic violation that
warranted the stop . . . and attend to related safety concerns.” Rodriguez, 135 S. Ct. at
1614. The Supreme Court in Rodriguez held that an officer’s mission includes
“‘ordinary inquiries incident to [the traffic] stop,’” which “typically” involve “checking the
driver’s license, determining whether there are outstanding warrants against the driver,
and inspecting the automobile’s registration and proof of insurance.” Id. at 1615.
Rodriguez does not prohibit unrelated inquiries or actions such as dog sniffs on the
basis that they exceed the scope of a routine traffic investigation. Nonetheless,
Rodriguez makes it clear that actions not considered part of the “mission” will render the
traffic stop unconstitutional if they add time to the stop. Thus, the appropriate inquiry is
whether the unrelated inquiries or activities extended the duration of the stop. Id. at
1616. Under Rodriguez, “[a]uthority for the seizure . . . ends when tasks tied to the
traffic infraction are–or reasonably should have been–completed.” Id. at 1614. It is
important to examine whether the officer’s extracurricular questioning or activities
interfered with or delayed the officer while she was should have been addressing her
“mission.” When that occurs, Rodriguez holds that the traffic investigation violates the
Fourth Amendment.
C.
Post-Stop Detentions
The question presented in Rodriguez was whether an officer may detain a driver
after all traffic-related tasks have been completed in order to run a drug detection dog
around the vehicle. Prior to Rodriguez, the Eighth Circuit had permitted “de minimis”
detentions for that purpose–a rule that had led to suspicionless detentions of up to 10
minutes. See e.g., United States v. Martin, 411 F.3d 998 (8th Cir. 2005); United States
v. Morgan, 270 F.3d 625 (8th Cir. 2001); United States v. 404,905.00 in Currency, 182
F.3d 643 (8th Cir. 1999). The Court in Rodriguez found that such detentions, however
brief, are unlawful in the absence of reasonable suspicion of criminal activity.
Rodriguez, 135 S. Ct. at 1615. The question whether an officer is truly entering into a
“post-stop detention” or an unlawfully prolonged investigation does not turn on whether,
or when, a traffic ticket has been issued. As the Court explained in Rodriguez, “the
critical question . . . is whether conducting the sniff ‘prolongs’–i.e., adds time to–‘the
stop.’” Id. at 1616. As explained above, “the stop” is defined by its mission and the
inquiries “incident to” accomplishing that mission. Id. at 1615. Once those inquiries
are–or should have been–completed, “the stop” ends and any additional detention
requires reasonable suspicion or consent.
D.
Canine Sniffs
If the traffic stop ends with a canine sniff, defense counsel may challenge that
sniff and any resulting search even if they were not the product of an unlawful
detention, as they were in Rodriguez. Under both federal and state law, a positive alert
from a canine may provide probable cause for the search of a vehicle. Florida v. Harris,
133 S. Ct. 1050 (2013); State v. Howard, 803 N.W.2d 450 (Neb. 2011). In fact,
according to the Supreme Court’s decision in Harris, if a bona fide organization has
certified a dog after testing his reliability in a controlled setting, or if the dog has recently
completed a training program, the court may presume that the dog’s alert provides
probable cause to search. Id. at 1057. However, a defendant may rebut that
presumption with contrary evidence of the dog’s unreliability. Id. Evidence that the
certification or training program was inadequate, or that its standards were too lax and
its methods faulty, is the best evidence to present in order to rebut the presumption.
Harris, 133 S. Ct. at 1058. But the court will also accept as proof of unreliability
evidence that the dog performed poorly in training, that the dog’s history in the field was
inconsistent, and/or that the handler was cueing the dog while conducting the sniff. Id.
“The question—similar to every inquiry into probable cause—is whether all the facts
surrounding a dog's alert, viewed through the lens of common sense, would make a
reasonably prudent person think that a search would reveal contraband or evidence of
a crime.” Id. at 1058.