https://www.techdirt.com/articles/20150126/15515829825/dojs-attempt-to-turn-4th-amendment-into-useless-piece-paper-called-out-justice-sotomayor.shtml DOJ's Attempt To Turn 4th Amendment Into A 'Useless Piece Of Paper' Called Out By Justice Sotomayor
The Supreme Court's recent track record on the Fourth Amendment has been inconsistent, to say the least. For every win -- like the *warrant requirement* <https://www.techdirt.com/articles/20140625/10272227684/supreme-court-says-law-enforcement-cant-search-mobile-phones-without-warrant.shtml> for cellphone searches incident to arrest (*Riley v. California*) -- there's been a loss -- the court's granting of permanent forgiveness for officers *who predicate stops on nonexistent laws* <http://blog.simplejustice.us/2014/12/16/heien-v-north-carolina-close-enough/> (*Heien v. North Carolina*), as long as the mistake is determined to be "objectively reasonable." The oral arguments in *Rodriguez v. United States* [*pdf link* <http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-9972_1a7d.pdf>] deal with another attempted expansion of law enforcement powers at the expense of the Fourth Amendment. Here's a the backstory, *as summarized by Evan Bernick of HuffPo (and the Institute for Justice)* <http://www.huffingtonpost.com/evan-bernick/justice-sotomayor_b_6534970.html>: *On March 27, 2012, Nebraska police officer Morgan Struble stopped Dennys Rodriguez for swerving once towards the shoulder of the road. After questioning Rodriguez and issuing him a written warning, Struble asked permission to walk his drug-sniffing dog around the outside of Rodriguez's vehicle. When Rodriguez refused, Struble made him exit the vehicle and wait for backup to arrive. Roughly eight minutes later, a second officer showed up, and Struble led his dog around the car. The dog gave an "alert" for illegal drugs, and a subsequent search turned up a bag of methamphetamine.* A previous decision by the Supreme Court (*Illinois v. Caballes*) concluded that the use of a drug-sniffing dog during a regular traffic stop was *not* a Fourth Amendment violation, provided the stop was not prolonged past the point of "completing that mission [the traffic stop]." Prolonged stops have been argued before, but in this particular case, there was no question that the "mission" had been "completed." It was only *after* the officer told Rodriguez he would let him off with warning that he brought up the subject of searching the vehicle. The DOJ's lawyer, Ginger Anders, argued that officers should have some leeway in determining the "sequence of the stop." Applied to this situation, the DOJ is basically arguing that a cop can tell you you're free to go and then ask you to wait while he brings in a drug dog to search your vehicle. Anders' theory is that this contradictory sequence still respects the Fourth Amendment so long as the *length* of the stop doesn't exceed the nebulous standard of "routine time needed." It's this slippery "routine time" that most of the argument is focused on. Both sides attempted to determine where that lies exactly on the space-time continuum, but Rodriguez's lawyer (reasonably) pointed out that the key issue should be the "completion of the mission," not the amount of time it takes to reach that point. This attempt to reduce the Fourth Amendment to a specific number of minute-hand movement reaches its simultaneous zenith/nadir during this exchange with the DOJ's lawyer. *JUSTICE BREYER: Okay. But that's where I thought that position that I've tried to -- let me state it more clearly, I think. It is unlawful to have the dog sniff where the dog sniff unreasonably prolongs the stop, is that -- does -- is that okay if I write with the government -- if I write those words in an opinion?* *MS. ANDERS: That's right. But we don't think that a dog sniff performed right after the ticket per se unreasonably prolongs the stop. And if I could give you a hypothetical that --* *JUSTICE BREYER: Ah. Well, how if the ticketwriting is over and there is nothing else to do and the policeman says, hey, this is over, at that point has it not unreasonably prolonged the stop if the sniff takes place afterwards?* *MS. ANDERS: I don't think so. I mean, just imagine --* *JUSTICE BREYER: Because?* *JUSTICE SCALIA: Because that takes only two minutes and that's not unreasonable, right?* *MS. ANDERS: That's right. And it doesn't take into account how he stops --* *JUSTICE SCALIA: Big deal. The dog walks around the car for two minutes. That's --* *CHIEF JUSTICE ROBERTS: It's only a violation of the Fourth Amendment for two minutes, right?* *(Laughter.)* Presumably, Scalia was being facetious. But the underlying thrust of the government's position is clear: it wants the leeway to perform extraneous searches so long as it can fit it in under a vague time limit determined by an even vaguer "reasonable standard." And if that's not feasible because the 2005 *Caballes* decision theoretically limits stops to a "reasonable" length of time, the government proposes another solution: just stick a K-9 in every cop car. Justice Sotomayor steps up to shut down this line of thinking. *MS. ANDERS: So the hypothetical that I propose is that if you imagine you have two officers conducting a stop and the first officer is explaining the ticket and what's happening with the ticket to the person, to the driver. While he's doing that, the second officer is performing the dog sniff around the car. If the officer who's explaining the ticket ends first and the dog sniff takes another 30 seconds, I don't think there's any reason to say that that stop, which maybe lasted a total of ten minutes has -- has gone on for longer than reasonably required to complete the traffic ticket.* *JUSTICE SOTOMAYOR: Well, I have a -- I have a real fundamental question, because this line drawing is only here because we've now created a Fourth Amendment entitlement to search for drugs by using dogs, whenever anybody's stopped. Because that's what you're proposing. And is that really what the Fourth Amendment should permit? MS. ANDERS: I don't think it's an entitlement, Justice Sotomayor. I think once the Court said in Caballes that -- that it is permissible in some circumstances to perform a dog sniff during a traffic stop, then -- JUSTICE SOTOMAYOR: Well, in some circumstances. So why don't -- why don't we keep it cabined to Caballes, which is when it's being done simultaneous with writing the ticket. If it's not, then it's unlawful. MS. ANDERS: Well, because that leads to arbitrary results as I was explaining with Justice Breyer, I think in that hypothetical -- JUSTICE SOTOMAYOR: It's not arbitrary. The Fourth Amendment is arbitrary by its nature. It says you can't search unless you have probable cause to search.* Later on, as this particular angle is argued further, Sotomayor comes down even more harshly on the government's assertions, noting that what it's attempting to do is grant itself more power at the expense of citizens' rights. *But the way Justice Breyer has said this -- what he's saying is you can't unreasonably prolong. You can't hold a person any -- any measurable time that would allow to get the dog. And, yes, it has to do with the resources of the police department, but we can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not -- 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*. This appears to be the DOJ's goal, if its arguments in this case -- and *previous cases* <https://www.techdirt.com/blog/wireless/articles/20130819/18571524246/administration-keeps-chipping-away-fourth-amendment-asks-supreme-court-to-allow-warrantless-cell-phone-searches.shtml> like *Riley* -- are to be believed. In its eyes, the Fourth Amendment is something that *should be subject* <https://www.techdirt.com/articles/20140423/15081827008/government-argues-that-warrant-requirement-cell-phone-searches-does-nothing-keep-cops-catching-bad-guys.shtml> to law enforcement's needs and wants, rather than something to be respected and complied with. __._,_.___ ------------------------------ Posted by: "beowulf" <[email protected]> ------------------------------ Visit Your Group <https://groups.yahoo.com/neo/groups/grendelreport/info;_ylc=X3oDMTJma2NocTlzBF9TAzk3MzU5NzE0BGdycElkAzIwMTk0ODA2BGdycHNwSWQDMTcwNTMyMzY2NwRzZWMDdnRsBHNsawN2Z2hwBHN0aW1lAzE0MjI5MTc2MDQ-> - New Members <https://groups.yahoo.com/neo/groups/grendelreport/members/all;_ylc=X3oDMTJnMTc3dmhpBF9TAzk3MzU5NzE0BGdycElkAzIwMTk0ODA2BGdycHNwSWQDMTcwNTMyMzY2NwRzZWMDdnRsBHNsawN2bWJycwRzdGltZQMxNDIyOTE3NjA0> 1 [image: Yahoo! 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