It was a busy term for the Supreme Court of the United States with decisions on Obamacare and gay marriage catching all of the attention. But reading the summary of the term this morning I was surprised to see I had missed a case that dealt the right of police officers to extend a traffic stop to conduct a dog sniff for contraband. Ever since Jay-Z released his epic “99 Problems But a Bitch Ain’t One” in 2003, I have been asked by my kids, nephews, and law students whether Jay was within his rights during the second verse of the song where he describes a traffic stop when his car trunk was loaded with drugs. The issue has been argued and analyzed by law profs many times including this 20-page analysis
Well in a sharply divided opinion, SCOTUS has ruled that indeed police may not extend a traffic stop to conduct a dog sniff – even if that extension is just 7-8 minutes long. Its a resounding victory for the Fourth Amendment which has taken a severe beating during the Roberts term but its also a complete vindication for Jay-Z who told the officer when he asked him if he was a lawyer: “Well I ain’t passed the bar but I now little bit; Enough that you won’t illegally search my shit.” Indeed he did apparently. First off, here are the lyrics:
The year is ’94 and in my trunk is raw
In my rear view mirror is the mother fucking law
I got two choices y’all pull over the car or
Bounce on the double put the pedal to the floor
Now I ain’t trying to see no highway chase with jake
Plus I got a few dollars so I can fight the case
So I… Pull over to the side of the road
And I heard “Son do you know why I’m stopping you for?”
Cause I’m young and I’m black and my hats real low
Do I look like a mind reader sir, I don’t know
Am I under arrest or should I guess some more?
“Well you was doing fifty five in a fifty four”
“License and registration and step out of the car”
“Are you carrying a weapon on you I know a lot of you are”
I ain’t stepping out of shit all my papers legit
“Do you mind if I look round the car a little bit?”
Well my glove compartment is locked so is the trunk and the back
And I know my rights so you gon’ need a warrant for that
“Aren’t you sharp as a tack are some type of lawyer or something?”
“Or somebody important or something?”
Nah I ain’t passed the bar but I know a little bit
Enough that you won’t illegally search my shit
“Well see how smart you are when the K-9’s come”
I got 99 problems but a bitch ain’t one”
So the legend goes that the canine officer never came around and the traffic cop had to let Jay-Z go.
Dennys Rodriguez of Nebraska was not so lucky in a fact pattern nearly identical to Jay-Z’s lyrics. He was pulled over for driving on the shoulder of Nebraska State Highway 275. After being pulled over, the officer asks for Rodriguez’s license, registration and insurance information. After they all come back clean, the officer asks Rodriguez to accompany him to his patrol car. Rodriguez asks if he is required to do so and the officer states “No.” so Rodriguez tells the officer he’ll just wait in the car. The officer decides to let Rodriguez off with a written warning but when he hands Rodriguez the warning he asks him if he can take a walk around the car with a canine officer. Rodriguez again says No but this time the officer compels him to get out of the car while they wait for a second officer to come to assist with the canine search. 7-8 minutes pass and the dog alerts to the presence of drugs in the trunk: a large bag of methamphetamine. Rodriguez is arrested and pleads guilty on the condition that he can appeal his arrest and seizure. He was sentenced to five yeas in prison.
Both the lower court and the Federal Appeals Court stated that while holding Rodriguez on the side of the road was unconstitutional, the violation was de minimus because it had only lasted 7-8 minutes and was “not of constitutional significance.” Of course, to Rodriguez, that “minimal insignificant intrusion” would have cost him 5 years of his life.
The Notorious RBG
Justice Ginsburg writing for the court disagreed that the intrusion was insignificant. She stated that because the officer had safely completed all the elements of a traffic stop, any further delay (without any further reasonable suspicion) of any length was an unconstitutional intrusion of Rodriguez right to be “free to leave.” Judge Ginsburg also noted that a dog sniff was not a part of a routine traffic stop but was its own separate procedure. She was joined by the other members of the liberal wing – Sotomayor, Kagan, and Breyer and also by Roberts and Scalia – a very strange six member group.
Justice Thomas wrote the main dissent in which Kennedy and Alito agreed. He argued that because the officer had seen the vehicle swerve off the road, that gave the officer probable cause and that this was not a traffic stop made just upon “reasonable suspicion” of crime. He further argued that under Nebraska law, the officer even had the right to handcuff and detain Rodriguez for the traffic violation. He stated:
“Had Officer Struble arrested,handcuffed, and taken Rodriguez to the police
station for his traffic violation, he would have complied with the Fourth Amendment. But because he made Rodriguez wait for seven or eight extra minutes until a dog arrived, he evidently
committed a constitutional violation. Such a view of the Fourth Amendment makes little sense.”
But then Thomas went further in the final section of his opinion, in which Kennedy specifically wrote an opinion to make clear that he disagreed with this portion of the Thomas dissent. Thomas stated that
additional facts gave the officer “probable cause” to detain the vehicle for a longer period of time. He cited the following factors as amounting to probable cause: (1) The officer testified the car had a strong odor of air freshener emanating from it which the officer testified from his experience meant that someone in the car wanted to prevent the police from detecting an odor; (2)the passenger had his “hat pulled low” (I kid you not – just like Jay) and was “nervously puffing a cigarette;” and (3) He didn’t believe that the pair were on their way back from a trip from Norfolk to Omaha to look at a used car because “usually people leave Omaha to go get vehicles, not the other way around due to higher Omaha taxes.” Based on these obvious pieces of evidence pointing to criminality, Thomas said that the delay was justified and constitutional.
Justice Alito wrote a separate opinion to point out that the reason there was a delay was to protect the officer. The officer making the stop testified that he had the canine in his car abut because there were two people in the car, he wanted to wait for back up before bringing the dog out since his experience and training taught him that when there is an alert by the dog, it is not uncommon for folks to run or get aggressive to avoid arrest. Alito, said this was a perfectly good explanation as to why he took care of the traffic stop first and then attended to the canine search. He said it would be “perverse” to rule that his actions would have been constitutional had he just waited to actually issue the warning until AFTER the canine search. He stated it was entirely reasonable for the officer to proceed in this sequence and therefore putting all that weight on his doing the canine search after the traffic stop had been completed was arbitrary.
In her opinion, Judge Ginsburg gave short shrift to both of the dissents stating that the facts are what they aye are – the canine search prolonged the traffic stop. Whether it prolonged it before or after the issuance of the ticket was irrelevant. If it unreasonably prolongs the traffic stop, there must be independent reasonable suspicion (or probable cause) to justify. She scolded Thomas and Alito for considering whether the additional facts made out independent probable cause because that was not argued on the briefs or at oral argument before SCOTUS. She instead remanded the case back down for that consideration. So Rodriguez is not out of the woods yet.
But Jay-Z on the other hand has been completely vindicated. One line from the same song states:
I don’t know what you take me as -Or understand the intelligence that Jay-Z has
Well for one thing, he apparently has a fairly accurate understanding of Search and Seizure Law.
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