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Tuesday, April 21, 2015

THE RETURN OF THE 4TH AMENDMENT

In Rodriguez v. United States,  the redoubtable Ruth Bader Ginsberg, writing for an unusual  6-3 majority, held that a delay of seven to eight minutes after a traffic stop was concluded for the purposes of holding the driver until a dog could arrive to do a K-9 sniff for drugs, was an unreasonable seizure within the meaning of the fourth amendment.  Thomas, Alito (no surprise) and Kennedy! (surprise) dissented. Scalia joined his fellow opera lover RBG in the majority. 

We granted certiorari to resolve a division among lower courts on the question whether police routinely may extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff. 
...
We hold that a police stop exceeding the time needed to handle thematter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation. 
Because addressing the infraction is the purpose of the stop, it may “last no longer than is necessary to effectuate th[at] purpose.” Ibid. See also Caballes, 543 U. S., at 407. Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed. See Sharpe, 470 U. S., at 686 (in determining the reasonable durationof a stop, “it [is] appropriate to examine whether the policediligently pursued [the] investigation”).
Beyond determining whether to issue a traffic ticket, anofficer’s mission includes “ordinary inquiries incident to[the traffic] stop.” Caballes, 543 U. S., at 408. Typicallysuch inquiries 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 

A dog sniff, by contrast, is a measure aimed at “detect[ing] evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 40–41 (2000). 
If an officer can complete traffic-basedinquiries expeditiously, then that is the amount of “time reasonably required to complete [the stop’s] mission.” Caballes, 543 U. S., at 407. As we said in Caballes and reiterate today, a traffic stop “prolonged beyond” thatpoint is “unlawful.” Ibid. The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket, as JUSTICE ALITO supposes, post, at 2–4, but whether conducting the sniff “prolongs”—i.e., adds time to—“the stop,” supra, at 6. 

Query:  does this sentence read right: 
JUSTICE KENNEDY, dissenting. 
My join in JUSTICE THOMAS’ dissenting opinion does not extend to Part III. 

Thomas wrote this in dissent: 
Because the stop was reasonably executed, no Fourth Amendment violation occurred. The Court’s holding to the contrary cannot be reconciled with our decision in Caballes or a number of common police practices.

Query: Should the Supreme Court decide fourth amendment cases based on "a number of common police practices" ?
Should what the police do be a yardstick in determining reasonableness under the fourth amendment? 

Thomas seems to think so, and yet, in part II of the opinion he writes this: 
We have spurned theories that would make the Fourth Amendment “change with local law enforcement practices.”  

Thomas cites Terry v. Ohio with approval: 
This Court created an exception to that rule [requiring probable cause] in Terry v. Ohio, 392 U. S. 1 (1968), permitting “police officers who suspect criminal activity to make limitedintrusions on an individual’s personal security based onless than probable cause,” 

Query: Since a Terry Stop is a judicially created exception, reading into the constitution words for an exception that the founders never wrote nor contemplated, what in the world is Thomas, of all the justices, doing citing Terry with approval? 
Just wondering. 

Anyway, the fourth amendment struggles on, doing just a bit better today because of the Notorious RBG. 
See you in court. 


17 comments:

Anonymous said...

RBG Rules!

CAPTAIN JUSTICE said...

Thank you Mr. Rodriguez for declining the Officer's invitation and telling him NO, that you would not agree to the dog sniff.

When I read the Kennedy Dissent, that sentence made no sense to me either. Typo ???

Cap Out .....

Anonymous said...

I think it should read "My joining"

Seth Sklarey said...

When I was in high school in Hollywood a classmate was arrested for marijuana possession. The cop stated that he found the grass in a bag under the seat. Joe Varon, the master of search and seizure law asked the cop what he would have done if the defendant hadn't stepped out of the car as he demanded. "I would have arrested him." Ergo case dismissed because without an arrest there was no probable cause, no reason to search and the search was unreasonable. Moral of the story is never consent to a search and now thanks to RBG defendant should demand to leave the scene expeditiously.

We still have the problem of cops "inventorying" a towed car and finding evidence. My argument has always been that once a defendant is in custody it is unreasonable search without a warrant. What say you all?

Anonymous said...

Police will just extend the stop.

Anonymous said...

She's the BEST.

Anonymous said...

Seth,

That was back in the Middle Ages.

The Professor said...

It is such a joy to see cases where Scalia and Thomas disagree. It highlights the mediocrity of Thomas' intellect, the lack of analytic ability, his minuscule understanding of the 4th Amendment and the precedents interpreting it.

How Thomas can not see that Rodriquez is nothing more than a clarification of Ceballes boggles the mind. This is no extension of that case. I have been teaching Ceballes as the perfect example of the limitation of searches being based upon "scope and duration".

Like all Terry type stops, an automobile stop is limited in its scope to the purpose for the stop, a traffic violation and the ticket that flows from it. It is limited by the totality of the circumstances in its duration to that reasonable time needed to complete that scope (writing the ticket). There is no brightline time period as the state had argued (10 minutes).

In Ceballes the defendant was not held for a greater period than needed, the dog arrived during the stop and was sniffing the car during the time the ticket was being written. Here the dog was kept in the police vehicle during the entirety of the stop, until after the ticket was given to the defendant and then the officer, acting on a hunch, prolonged the stop in a multiplicity of ways.

Any extension of the time the defendant is detained must be supported by newly established articulable suspicion or probable cause. As I tell my students, you can only go as far as the probable cause will take you and no further.

I disagree with Scalia on so many levels on the 5th and 6th Amendment, that it never ceases to amaze me the he is a true believer in the 4th Amendment. If only we could get him to accept Katz and the "right of privacy" as a gold standard equal to the the "trespassory" theory of searches he rightfully holds so dear.

Anonymous said...

Rump,

Why didn't you post my traveling recommendation? The North Sentinel Island is great for scuba diving. It's the Turks and Caicos of the Indian Ocean.

Anonymous said...

The Supreme Court just said this and you watch, for the next 20 years the lower courts will try to find a way around it.

Anonymous said...

I can't wait for the first opinion from the 3rd DCA ignoring this supreme court opinion and saying so what if the cops hold you on a traffic stop waiting for officer canine to appear. Why do I just know Leslie Rothenberg and Kevin Emas will be pushing the keys?

Anonymous said...

Someone suggested I try this. Univ Chicago law grad 2005. 6', athletic, good midwestern looks and values. I left the Obama administration to come here two years ago and I work at a medium sized firm doing mostly white collar defense. I have a condo in south beach and a nice car and a nice cat. I would like to meet a woman in the legal field ages 22-35. I like tall Norwegian-type women- tall, thin, athletic.

I like opera, theater, and renaissance art (my major in college was Art History). Every year I take two weeks and get an apartment in Paris and just wander the museums, mostly the Louvre.
This year I am going the last week of August and first week of September.
I sail and SCUBA dive and spin every few days and do a little pilates as well.
I will be at the bar at Dolores but you can call me Lolita on Friday at 6 pm wearing a grey suit with a sharp blue tie and soft blue shirt. If any ladies want to meet me, come on by and mention the blog.

Rumpole said...

Just when I think I've seen it all, blog wise.

Anonymous said...

9:07, why the sex discrimination? Why do you only want women? I'm a 6'5" tall man, blonde, blue-eyed, built like a Norwegian lumberjack, lots of muscle, very buff and I will be at the Lolita bar to meet you and discuss art history with you.

Anonymous said...

http://www.thewrap.com/daniel-radcliffe-in-negotiations-for-bbc-films-drama-grand-theft-auto/


Daniel Radcliffe is in negotiations to star in BBC Films’ drama “Grand Theft Auto,” which is being directed by Owen Harris of “Black Mirror,” an individual familiar with the project has told TheWrap.

“Grand Theft Auto” chronicles the true story of the legal fight between Sam Houser (Radcliffe), who helped create the violent video game “Grand Theft Auto,” and Miami-based attorney Jack Thompson, who opposed the game‘s glorification of violence.


Cannot wait to see the actor who plays Jack Thompson receive an Oscar.

Anonymous said...

I have a few complaints about the FACDL list serve:
1. Why does everyone have to congratulate someone by blasting to the entire list?
2. Why do I have to listen to Nancy Wear blab on and on about everything?
3. I understand asking for help but, some people simply can't open a fucking law book or log onto Westlaw.
4. Bijan, really, can you do anything without asking the entire list for help?
5. Why not congratulate ASA's when they win a case?
6. Why can't more people from FACDL run against Ed Newman, Jeri Beth Cohen, Victoria Brennan, Dava Tunis and anyone else who simply can't be nice?

Anonymous said...

#5 - Congratulate ASA's? The person was arrested, doesn't that mean they're guilty?