Matthew T. Mangino
January 28, 2015
When the Bill of Rights — the first 10 amendments to the U.S. Constitution — were adopted in 1791, the Fourth Amendment was included to protected individuals from unlawful search and seizures.
The framers of the Constitution were outraged by the unfettered access British officials had to colonists’ homes and persons. The new nation wanted to insure that any unlawful intrusion by the government would be dealt with swiftly and consistently — a lofty goal, even for the high-minded men who helped draft this enduring document.
Remarkably, much of the modern era of search and seizure jurisprudence has gone to the dogs, literally. Little would the framers believe that individuals would have to be protected from overzealous police work performed by dogs, albeit government dogs, but dogs nonetheless.
The U.S. Supreme Court heard oral argument recently in Rodriguez v. United States. At issue was whether a police officer “unnecessarily prolonged” an otherwise legal traffic stop by calling for a K-9 officer to walk a drug-sniffing dog around the stopped vehicle.
This is not the first time the U.S. Supreme Court has taken up the issue of four legged police personnel.
In 1983 and 2005, the Supreme Court declared that dog sniffs conducted by law enforcement in public places did not run afoul of the Fourth Amendment — such conduct did not intrude upon a “reasonable expectation of privacy.”
In 2000, the court ruled that routine drug checkpoints employing dog sniffs without suspicion resulted in an unlawful search under the Fourth Amendment. More recently, the Court ruled that using a drug-sniffing dog on the front porch of a residence is a “search,” and subject to the protections of the Fourth Amendment.
The Rodriguez case involved a valid traffic stop which the officer prolonged for seven or eight minutes in order to conduct a dog sniff of Rodriguez’s car. The entire traffic stop lasted about 30 minutes, at which point the dog alerted to methamphetamine and Rodriguez was arrested.
The case was appealed following Rodriguez’s conviction. The Court of Appeals found there was no “reasonable suspicion” for the dog-sniff detention. As a result, another doggy-cop case made its way to the high court.
The “reasonable suspicion” standard came about as a result of the 1968 landmark U.S. Supreme Court decision in Terry v. Ohio. Prior to Terry, and dating back to the birth of the Constitution, a Government official — or police officers as we came to know them — needed probable cause to detain an individual for investigatory purposes.
The Terry decision extended the authority to detain based on suspicion less than probable cause. The Court expected that a police officer conducting a “Terry stop,” as they came to be known, would be able to articulate a reason why she thought the individual detained might be involved in some criminal conduct.
In Rodriguez, there was no articulable reason to detain Rodriguez and his vehicle. The citation had been written and the driver should have been free to go on his way. As Rory Little wrote on the SCOTUSblog “Here, in a case premised on no reasonable suspicion of narcotics, approving a prolonged detention of any length for a narcotics dog sniff seems, as Justice [Elena] Kagan suggested, “just not right” under Terry.”
Justice Sonia Sotomayor also had concerns. She suggested during the Rodriguez argument that the Supreme Court’s recent Fourth Amendment jurisprudence was “flying off the rails” due to its pro-police deference, reported Reason Magazine.
“[W]e can’t keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not … incidental to the purpose of the stop. It’s purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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