By Nathan Alsbrooks & Millicent Lierman
Assistant District Attorneys in Montgomery County
Police dogs, also known as K-9 officers, are an essential component of the modern law enforcement agency, filling an irreplaceable role in the fight against crime. With their penetrating sense of smell, they aid in the search for missing or wanted persons and assist investigations, finding their way into our case files. There are three foundational cases that establish law for the dog in a traffic stop, all decided by the United States Supreme Court: United States v. Place from in 1983, Illinois v. Caballes decided in 2005, and Rodriguez v. United States handed down in 2015.
In United States v. Place, the United States Supreme Court gave police dogs a special place in our jurisprudence that they have retained to this day.[1] The Court reasoned that the sniff of a dog is sui generis—intended to disclose only the presence or absence of narcotics. In doing so, the Court created a special exception from the broader category of searches for which a warrant is generally required. The Court reasoned that a person cannot have a legitimate expectation of privacy when it comes to possession of contraband because it is, by definition, illegal to possess contraband. By not invading a reasonable expectation of privacy, the dog sniff was not a search under the Fourth Amendment.
The United States Supreme Court reinforced this unique classification in Illinois v. Caballes,[2] where the Court held that the use of a drug-sniffing dog prior to the completion of law enforcement’s routine duties involved in a traffic stop does not violate the Fourth Amendment. In Caballes, the Court reasoned that a dog sniff was less invasive than the thermal imaging cameras addressed in Kyllo v. United States.[3] Whereas the thermal imaging probed the“intimate details of the home,” the dog sniff was relegated only to identifying the presence of narcotics.
The most recent canine case, though, Rodriguez v. United States, might be the most nationally relevant item to come out of Nebraska since Tom Osborne, Eric Crouch, and the triple option. In Rodriguez, the United States Supreme Court held that, absent reasonable suspicion, officers may not extend the length of a traffic stop to conduct a dog sniff.[4] Even though Rodriguez has been generally viewed as an advantageous opinion for defendants, the case is often misunderstood and misapplied. Most prosecutors in the trenches have had at least one conversation or email begin with: “I think you have a Rodriguez issue on this one.” Perfect understanding of the Rodriguez decision, however uncommon, is not a panacea, because law for the dog does not begin or end with its holding.
Because most law enforcement officers do not travel with a canine, they are forced to call upon another unit in the event that they wish to deploy a dog sniff. It could take mere minutes, or in unfortunate instances, many minutes. This practical reality creates delay and longer roadside detentions. Accordingly, prosecutors should understand how Texas courts have treated the Rodriguez decision since its publication.
Understanding Rodriguez
A police officer stopped Rodriguez for driving on the shoulder of a highway, a violation of Nebraska traffic law. The officer completed his traffic stop and issued a warning, then asked permission from Rodriguez to walk his K-9 officer around the car to perform a free air sniff. Rodriguez refused; the officer then called for backup. Once backup arrived, the original officer walked the canine around the car despite Rodriguez’s refusal to consent. The police dog alerted, signaling the presence of narcotics inside the vehicle. The officer conducted a probable cause search and uncovered methamphetamine, resulting in Rodriguez’s arrest.
At trial, Rodriguez moved to suppress the drug evidence, arguing that it was obtained as a result of an improperly prolonged detention. The district court denied his motion, and the Eighth Circuit Court of Appeals affirmed the district court’s decision, finding that the almost eight-minute delay between issuance of the warning and the dog sniff was de minimus and could be offset by the government’s interest in preventing the flow of illegal drugs. But the U.S. Supreme Court granted certiorari and ultimately vacated and remanded the case.
The Supreme Court noted that officers enjoy general discretion to carry out ordinary inquiries during a traffic stop. Beyond determining whether to issue a traffic ticket, officers commonly verify whether a driver’s license is valid, ensure that no active warrants exist against the present parties, and check the validity of an automobile’s registration and proof of insurance. Along with the underlying reason for a traffic stop, these routine checks ensure vehicles on the road are operated safely and responsibly. A dog sniff, on the other hand, is no ordinary inquiry. Thus, the Court held that, absent reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.[5]
Notable Texas cases
The Texas Court of Criminal Appeals addressed the Rodriguez decision in Lerma v. State.[6] A Corpus Christi peace officer stopped a vehicle for improper use of a turn signal and failure to stop at a designated point before a stoplight. The officer approached the driver’s side, seeing four people in the car. Lerma was in the front passenger seat. In the backseat, a woman held an unrestrained baby in her arms. The officer observed Lerma frequently reaching into his pockets, moving his hands between the vehicle seats, and making furtive movements with his feet. While the driver searched for his identifying information, the officer instinctively moved to the passenger side of the vehicle, nearer Lerma, to ensure Lerma did not retrieve a weapon. As Lerma did not have any identifying information himself, the officer asked him to exit the vehicle. Lerma stated there was a pocketknife on his person, and during a routine pat-down, the officer reported that he felt what he believed was a box of cigars and a bag with a “soft substance” inside.
At this point, the officer believed Lerma was concealing narcotics in his pocket. Alone and outnumbered, the officer did not confront him. Four minutes later, another officer arrived as backup. Lerma then provided the fake name of “Bobby Diaz” to the primary officer, along with a fake date of birth. Minutes later, the officers uncovered the deceit by use of a state database. The officers confronted Lerma, who admitted to smoking synthetic marijuana earlier in the day and having synthetic marijuana on his person. The officer searched Lerma’s pockets and found the synthetic marijuana, prompting Lerma to flee from the scene on foot. A pursuit ensued, and Lerma was captured roughly 15 minutes later; an additional 17 crack cocaine rocks were found on his person, and he also admitted that he was a habitual felon. In total, nine minutes passed between the initial traffic stop and when Lerma ran.
After the trial court denied Lerma’s motion to suppress the cocaine, he pleaded guilty and appealed the denial of his motion to suppress. The court of appeals reversed, holding that the officer’s frisk of Lerma was made during an unjustifiably prolonged traffic stop and was not supported by reasonable suspicion.
The Court of Criminal Appeals reversed the court of appeals, holding that the stop was not unduly prolonged. Due to Lerma’s furtive movements and lack of identifying information, it was reasonable for the officer to question him outside the car. The Court incorporated and applied basic precepts from Rodriguez but distinguished Lerma based upon the recorded facts.
The Court maintained that a stop made for the purpose of investigating a traffic violation must be reasonably related to that purpose and may not be prolonged beyond the time to complete the tasks associated with the stop. An officer is also permitted to ask drivers and passengers about matters unrelated to the purpose of the stop, so long as the questioning does not measurably extend the duration of the stop. If an officer develops reasonable suspicion that a driver or occupant of a vehicle is involved in criminal activity, as in Lerma, the officer may continue questioning the individual regardless of whether the official tasks of a traffic stop have ended.
Just as in Lerma, the deciding court in Davis v. State differentiated its analysis from the Rodriguez decision based upon articulated facts supporting reasonable suspicion.[7] In Davis, the defendant was reported to be overtly nervous throughout the traffic stop and repeatedly grabbed his groin, and law enforcement received a tip the defendant recently purchased methamphetamine.
It is important to note that there are no per se time limitations on roadside detentions. In State v. Martinez, the court upheld a detention wherein a law enforcement officer waited 38 minutes for a canine to arrive. The Martinez decision underscores that reasonableness depends on whether a law enforcement officer pursued “a means of investigation efficient and appropriate and did not unreasonably or unduly delay or prolong the traffic stop.”[8] In Fisher v. State, the deciding court asserted a similar position when it stated there was no “constitutional stopwatch on traffic stops.”[9] In Villarreal v. State, the deciding court noted that reasonable suspicion must be viewed in light of the entire array of facts.[10] The court recognized that some circumstances, by themselves appearing innocent, may give rise to reasonable suspicion when combined with additional facts and a law enforcement officer’s “keen eye and experience.”[11]
The future of dog law
Prosecutors must effectively differentiate between unjust detentions and those instances when detention for the dog sniff is supported by individualized suspicion. We must also train law enforcement officers on the importance of articulating their observations and impressions at these roadside encounters. Officers frequently observe or perceive acute details that are never documented in an arrest record or offense report and are never elicited via testimony at a suppression hearing or during trial. The bottom line is this: the scope of the detention must be carefully tailored to its underlying justification.
The court in Neuwirth v. State aptly summarized what our examination should entail when analyzing prolonged detentions: “The evidence in the record shows that [the officer] pointed to specific facts that allowed the trial court to conclude that an objectively reasonable officer could have suspected criminal activity, that the investigation occurred in a reasonably short period of time, and that [the officer] investigated his suspicion in a manner reasonably designed to quickly resolve his suspicions.”[12]
In the aftermath of Rodriguez, prosecutors must issue a clarion call to our law enforcement partners: Have a clear and compelling reason before prolonging a detention to carry out a dog sniff. There may come a day when excess leads to pushback.
The seeds for curtailing dog usage are already planted. On November 4, 2021, the Houston Chronicle newspaper published an article titled, “Texas police search thousands of drivers and find nothing. Here’s where that happens the most.”[13] The article highlights that some local police agencies carry out searches on more than one-third of vehicles they stop.
Also notable are two dissents authored in the Caballes decision. In one, Justice Souter called for revisiting the premise underpinning the sui generis classification for police dogs. He argued that a dog sniff was not infallible, nor are their human handlers. Souter pointed to studies highlighting false-positive alerts from canines, and he argued this error led to unlawful searches.
In another, Justice Ginsburg argued that the traffic stop was akin to a Terry stop and thus is not circumscribed merely by duration—she claimed that the manner in which the stop is carried out must also be carefully controlled. Ginsburg wanted the Court to scrutinize what government actors were searching for, in addition to the length of their detention. The sui generis designation of dog sniffs would be dispositive in cases such as Caballes only if the sole determinant of what is “reasonable” is the length of said traffic stop. She wrote, “Under today’s decision [in Caballes], every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population. … Today’s decision clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. … Motorists [would not] have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green.”
There may come a day when the Supreme Court revisits dog law, but for now, the decisions in Place, Caballes, and Rodriguez are touchstone pillars. Prosecutors should understand and utilize these cases to differentiate between lawful and unlawful detentions in seeing justice done. We should also encourage law enforcement partners to consider whether they can clearly explain their reasonable suspicion to deploy a dog sniff before extending a detention, and to then carefully articulate the basis for detentions in their arrest records, offense reports, and live testimony.
Endnotes
[1] 462 U.S. 696 (1983).
[2] 543 U.S. 405 (2005).
[3] 533 U.S. 27 (2001).
[4] 575 U.S. 348 (2015). Also note that in Florida v. Jardines, 569 U.S. 1 (2013), the final dog case of note, the U.S. Supreme Court held that bringing a drug dog within the curtilage of a home implicates privacy interests and the Fourth Amendment. Because this article discusses only traffic stops and dog sniffs, Jardines is not discussed here.
[5] Importantly, the Rodriguez decision does not apply to situations where the traffic stop investigation has not been completed, see Adams v. State, 11-17-00247-CR, 2019 WL 5078577 (Tex. App.—Eastland Oct. 10, 2019, pet. ref’d) (mem. op., not designated for publication); where the dog sniff was consented to prior to the completion of the traffic stop, see Lewis v. State, 10-19-00370-CR, 2021 WL 4198482 (Tex. App.—Waco Sept. 15, 2021, no pet. h.) (mem. op., not designated for publication); or where the dog sniff is incident to arrest, see Briseno v. State, 04-15-00566-CR, 2016 WL 3181544 (Tex. App.—San Antonio June 8, 2016, no pet.) (mem. op., not designated for publication).
[6] 543 S.W.3d 184 (2018).
[7] 03-19-00120-CR, 2020 WL 3481154 (Tex. App.—Austin June 26, 2020, pet. ref’d) (mem. op., not designated for publication).
[8] 11-20-00144-CR, 2021 WL 3919778, at *1 (Tex. App.—Eastland Sept. 2, 2021, no pet. h.) (not designated for publication).
[9] 481 S.W.3d 403, 408 (Tex. App.—Texarkana 2015, pet. ref’d) (internal quotations omitted).
[10] 14-18-00406-CR, —- SW.3d —-, 2020 WL 1880998, at *1 (Tex. App.—Houston [14th Dist.] Apr. 16, 2020, no pet.).
[11] See also Freeman v. State, 05-18-00910-CR, 2019 WL 2611011 (Tex. App.—Dallas June 26, 2019, pet. ref’d) (mem. op., not designated for publication); Cuttrell v. State, 09-15-00155-CR, 2016 WL 1468633 (Tex. App.—Beaumont Apr. 13, 2016, no pet.) (mem. op., not designated for publication).
[12] Neuwirth v. State, 09-18-00248-CR, 2019 WL 3937997, at *7 (Tex. App.—Beaumont Aug. 21, 2019, no pet.) (mem. op., not designated for publication).
[13] www.houstonchronicle.com/politics/texas/article/ Texas-police-search-thousands-of-drivers-and-find-16589982.php.