by David Daggett

Less than two weeks ago, the Supreme Court of the United States decided the case of Rodriguez v. United States, 2015 U.S. Lexis 2807, 575 U.S. ____ (2015). It immediately fostered discussion amongst police and prosecutors as to its effect on searches and seizures in various jurisdictions across the country. What effect, if any, will it have on Maryland law related to the issue of “continued detention” to affect a dog scan? Before delving into that question, an overview of Rodriguez is in order.

It was shortly after midnight on a somewhat deserted stretch of Nebraska Highway 275 heading northwest out of Omaha. Officer Morgan Struble and his dog “Floyd” were working patrol on the graveyard shift with the Valley Police Department when Struble observed a Mercury Mountaineer veer slowly onto the shoulder for one or two seconds and then jerk back onto the road. As it is a violation in Nebraska to drive on the shoulders of a highway, Ofc. Struble pulled the vehicle over. It was 12:06 a.m. Two men were in the Mountaineer: Dennys Rodriguez, the driver and Scott Pollman, the front-seat passenger.

Officer Struble approached the Merc on the passenger’s side and, Mr. Rodriguez, after identifying himself, stated that he had swerved onto the shoulder to avoid a pothole. Struble then collected Rodriguez’s license, registration and proof of insurance. After running a records check on Rodriguez (which came back negative), Struble questioned the passenger, Pollman, about where the two men were coming from. Pollman replied that they had travelled to Omaha to look at a Ford Mustang that was for sale and that they were returning to Norfolk, Nebraska, a sleepy little hamlet about 110 miles northwest of Omaha. Norfolk, Nebraska was the childhood home of Johnny Carson (a proud Norfolk High alum) as well as to Max Carl, one-time lead singer of the rock band .38 Special, albeit somewhat after their heyday in the late 70’s – early 80’s. As Mr. Pollman was presumably not such a well-known celebrity around those parts as Messrs. Carson and Carl, Struble returned to his patrol car where he completed a records check on Pollman and called for a second officer. Struble then began writing a warning ticket to Rodriguez for the offense of driving on the shoulder.

Struble returned to the Mercury a third time to issue the warning citation and return the documents he’d collected from the two men. It was now approximately 12:27 or 12:28 a.m.

According to Officer Struble at a later suppression hearing, “I gave all their documents back and a copy of the citation…I got all the reasons for the traffic stop out of the way.” He then asked for permission to walk his dog around Rodriguez’s vehicle. Rodriguez said, “No thank you, Officer. I think not,” or words to that effect. Struble then instructed Rodriguez to turn off the ignition and to wait for the second officer to arrive. At 12:33 a.m. the second officer arrived. Struble retrieved Floyd and walked him around the Mountaineer where he alerted to the presence of drugs. A subsequent search of the vehicle revealed a large bag of methamphetamine.

After some lower federal court rulings in favor of the State, the Supreme Court granted certiorari to resolve a division among federal circuits on the question of whether police may routinely extend an otherwise-completed traffic stop, absent reasonable suspicion, in order to conduct a dog sniff.

The majority noted that a routine traffic stop is more analogous to a Terry stop than to a formal arrest. Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s “mission” – that is, to address the traffic violation that warranted the stop and to attend to safety concerns. The Court determined that because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose.

In Illinois v. Cabellas, 543 U.S. 405 (2005) the Supreme Court held that a dog sniff conducted during a lawful, routine traffic stop does not offend the Fourth Amendment, as long as the stop does not extend the roadside detention beyond the time it would reasonably take to complete the “mission” or “purpose” of the traffic stop.

But just what is that mission or purpose? In Rodriguez, the SCOTUS found that, in addition to determining whether to issue a traffic ticket, an officer’s “mission” may also include inquiries incidental to the traffic stop. They found that typically, such inquiries can involve checking the driver’s license and status, determining whether there are outstanding warrants against the driver and inspecting the automobile’s registration and proof of insurance. The Court opined that these checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

The Court (opinion by J. Ginsburg) determined that a dog sniff, by comparison, is aimed at detecting or locating evidence of “ordinary criminal wrongdoing,” and is not fairly characterized as being a part of the officer’s traffic enforcement or safety mission. The Eighth Circuit Court (of which Nebraska is a part) had relied on a di minimis rule, that is, that the government’s “legitimate and weighty” interest in officer safety and in the “strong interest in interdicting the flow of illegal drugs along the nation’s highways” was a di minimis intrusion and that a wait of 7-10 minutes was not of constitutional significance.

The SCOTUS ultimately determined that the critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff “prolongs” – i.e. adds time to – the stop. In order to do that, there must be reasonable articulable suspicion that an additional crime is afoot. The Court did leave open the question on remand as to whether detention for the dog sniff was independently supported by additional reasonable suspicion so Mr. Rodriguez is not yet off the hook.

Maryland Law

Rodriguez v. United States should really have little to no impact in Maryland as Maryland law already falls in line with the Rodriguez decision. Under Maryland law, the facts in Rodriguez would fall under the umbrella of existing precedent.

In Ferris v. State, 355 Md. 356 (1999), the Maryland Court of Appeals held that:

…the officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. 355 Md 356, 372

Pryor v. State, 122 Md. App. 671 (1998) and Charity v. State, 132 Md. App. 598 (2000) are additional Maryland appellate cases that are consistent with the holding of Rodriguez.

In Pryor, a case involving a “Whren stop,” a detective, investigating narcotics violations, received word from a confidential informant that Pryor was storing cocaine in a hidden compartment within his vehicle. The detective waited until Pryor left his apartment by car and then followed him for a period of time. Upon observing Pryor driving 45 miles per hour in a 25 miles per hour zone, he stopped Pryor’s vehicle, ordered everyone out of the car and forced them to wait for the arrival of a drug dog, which arrived about twenty minutes later. Chief Judge Murphy stated the constitutional limits of a “Whren stop”:

This appeal . . . requires that we examine an important rule of engagement applicable to the forcible stop of a motorist who commits a minor traffic violation while under police surveillance: the point in time at which continued detention violates the motorist’s Fourth Amendment protection against unreasonable searches and seizures. We hold that, unless continued detention can be justified by what occurs during the brief period of time it takes to determine whether the motorist has a valid license and whether the vehicle has been reported stolen, a motorist who is subjected to a “Whren stop” for a minor traffic violation cannot be detained at the scene of the stop longer than it takes–or reasonably should take–to issue a citation for the traffic violation that the motorist committed. 122 Md. App. at 674-75

In Pryor, the Cout of Appeals held that, in addition to a permissible traffic stop, there was also articulable suspicion for a Terry-stop. The Court held, however, that neither of those initial stops—the Whren stop or the Terry-stop—could justify holding Pryor for a period of twenty to twenty-five minutes while awaiting the arrival of the drug dog. Chief Judge Murphy reasoned:

The Fourth Amendment permits the forcible stop of a motorist who is observed by a law enforcement officer to be violating a “rule of the road.” The Fourth Amendment also permits the forcible stop of a vehicle when there is reasonable articulable suspicion to believe that its occupants are involved in criminal activity. In neither of these situations, however, may the occupants of the vehicle be detained for an extended period of time. In the absence of a justification for continued detention (emphasis added) that manifests itself during the period of time reasonable necessary for the officer to (1) investigate the driver’s sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation, the Fourth Amendment prohibits a detention in excess of that period of time. In this case, whether the period of appellant’s detention is characterized as a “first” (traffic) stop followed by a “second” (drug investigation) stop or as a single stop that was justifiable for two different reasons, appellant was detained much longer than was reasonable.

Finally, in Charity v. State, Judge Moylan of the Court of Special Appeals wrote:

In determining whether a police officer has exceeded the temporal scope of a lawful traffic stop, the focus will not be on the length of time an average traffic stop should ordinarily take nor will it be exclusively on a determination, pursuant to Ferris, of whether a traffic stop was literally “completed” by the return of documents or the issuance of a citation. Even a very lengthy detention may be completely reasonable under certain circumstances. Conversely, even a very brief detention may be unreasonable under other circumstances. There is no set formula for measuring in the abstract what should be the reasonable duration of a traffic stop. We must assess the reasonableness of each detention on a case-by-case basis and not by the running of the clock… What might be a reasonable duration for most traffic stops might not be reasonable duration for a particular traffic stop on a particular occasion. Reasonableness may depend on whether the purpose of the traffic stop is actually being pursued with some modicum of diligence. We repeat that in processing a traffic infraction the police are not to be monitored with a stop-watch. Neither, however, does Whren confer on them, for example, five minutes of “free time” to do whatever they wish in the service of some other investigative purpose. 132 Md. App., 617

So what can an officer do?

Even though Rodriguez seems to focus on what an officer cannot do, there are certain things that clearly can be done during a traffic stop. Rodriguez (and Maryland law) authorize an officer to:

  • spend a reasonable amount of time checking on the driver’s license, registration and proof of insurance;
  • check for outstanding warrants;
  • take those actions necessary to address safety issues, such as ordering the driver and passengers out of the vehicle.

In addition, during the course of the traffic stop, officers may certainly develop additional reasonable suspicion to prolong the traffic stop (within limits.) For example, a large number of air fresheners, observations of possible contraband, an injured person in the vehicle, the odor of marijuana or other drugs, evidence of impaired driving, suspicious or nervous activity and other observations may justify a prolonged detention, within reason. An officer needn’t turn a blind eye to the possible commission of illegal activities.

An officer may ask questions of the driver as he fills out the citation or e-ticket. If one is available, he can walk a drug dog around the vehicle as he is waiting for license and warrant checks to be completed or have another officer walk the dog while he writes the citations. Like most things, it is all about reasonableness.

The Rodriguez decision and Maryland case law makes clear that an officer cannot drag out the ticket writing process, merely to stall until the arrival of a drug dog.

According to Brian Kleinbord, head of the Criminal Appeals Division of the Office of the Attorney General:

This case also serves as a good reminder to advise police officers that in order to extend a traffic stop for a dog sniff, it is best to have reasonable suspicion. In the absence of reasonable suspicion, officers should ensure that the K9 unit gets to the scene as quickly as possible (i.e. within 5-10 minutes). We have good authority on stops being reasonable as long as officers are “diligently pursuing” their traffic-related responsibilities, but we don’t want a case that pushes that principle beyond its breaking point.

As always, please consult with your local State’s Attorney’s Office with any specific legal questions regarding this issue.