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Wednesday, August 19, 2015

U.S. Supreme Court’s Latest On Police Conduct During Traffic Stops: It's Complicated

Despite numerous cases in which the U.S. Supreme Court initially analogized Terry v. Ohio (1968) to traffic stops (as explained earlier), which contributed to numerous state courts imposing search and seizure restrictions upon police during traffic stops, in 2009 the Court appeared to dramatically back off the implications of that analogy in favor of protecting police discretion rather than constraining it. However, just last term the Court somewhat incoherently embraced half of the Terry analogy. As a consequence, currently the Fourth Amendment does technically constrain police discretion during traffic stops, though how meaningful that constraint is remains unclear and disputed.

The first signal of this retrenchment came in Arizona v. Johnson (2009), in which the Court seemed to go out of its way to include dicta declaring that “[a]n officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” The only authority the Court cited as having made this matter “plain” was its decision in Muehler v. Mena (2005), but that case did not make this proposition “plain” at all. Mena was not a traffic stop case, did not so much as cite Terry, did not involve a brief encounter between the police and public, and involved a suspicionless seizure rather than the type of suspicion-based seizure at issue in Terry stops and in traffic stops. (Though there was no basis for suspicion against her, Mena was handcuffed and detained in a converted garage for two to three hours after she was found inside a private home when police executed a gang-related search warrant for “dangerous weapons,” during which police interrogated her about her immigration status.) All of these distinctions between Mena on the one hand, and Terry and traffic stop contexts on the other, had left it far from clear whether, after Mena, the Fourth Amendment imposed any durational or topical constraints on police during traffic stops. The Court would have done better to cite Illinois v. Caballes (2005), in which the Court approved of a suspicionless dog sniff that did not prolong a traffic stop's duration, refusing to impose a topical constraint during the stop.

In any case, it turned out that Johnson’s dicta, combined with Caballes's possible concern for durational limits, was a bit of a prognostication for where the Court was heading.

Last term, in Rodriguez v. United States (2015), the Court wrote that “[l]ike a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission’—to address the traffic violation that warranted the stop and attend to related safety concerns.” It then held that police “may conduct certain unrelated checks during an otherwise lawful traffic stop” so long as they do “not lengthen the roadside detention” or "prolong[] the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." These "unrelated checks" are limited to routine, ordinary inquiries incident to traffic stops, such as “checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.” Unrelated dog sniffs, however, are excluded (Rodriguez invokes the Government's concession that unrelated dog sniffs are "not an ordinary incident of a traffic stop") and thus are not allowed absent independent individualized suspicion if they prolong the traffic stop.

Rodriguez was subject to good coverage already (e.g., here, here) so check it out for more analysis.

Here are a couple more of my own reactions. As an initial matter, this paradigm is internally inconsistent in several crucial ways. It cannot be true in most if not all cases that police “may conduct certain unrelated checks during an otherwise lawful traffic stop” only so long as they do “not lengthen the roadside detention” for the simple reason that these unrelated checks would be expected to lengthen the traffic stop. Thus, linking ordinary and routine but unrelated checks to a durational constraint is a mistake. This mistake is not obviated by Rodriguez's invocation of Johnson's language about "measurably" extending a stop's duration. These unrelated checks will often "measurably" extend a traffic stop, at least if "measurably" is to have any real meaning. (The Court would have better described its regime by explaining that unrelated checks are allowed even when they measurably prolong a stop if they are routine, ordinary inquiries incident to traffic stops, but otherwise cannot measurably prolong a stop, such as other searches like unrelated inquires about weapons or drugs, as Johnson indicates, or unrelated dog sniffs, as Caballes implies.)

Rodriguez further confuses matters by linking this misguided durational invocation to its emphasis that unrelated dog sniffs are not part of the routine, ordinary inquiries incident to a traffic stop. This combination suggests that absent separate individualized suspicion unrelated dog sniffs cannot be conducted during a traffic stop even when they do not prolong the stop because they are not part of the allowed routine, ordinary inquires. But that cannot be right because otherwise the Court would have had to overrule Cabelles, which it did not do (recall that Caballes approved of an unrelated, suspicionless dog sniff that did not prolong the stop). Additionally, the Court already instructed us in Johnson that unrelated topical inquiries are allowed so long as they do not measurably extend the stop.

In any event, where we are left is that Caballes remains good law but controls only until the "tasks tied to the traffic infraction are—or reasonably should have been—completed." Once that moment occurs, anything else prolongs the stop and then Rodgriguez kicks in. Caballes allows unrelated dog sniffs during a traffic stop so long as the stop's duration is not prolonged (or at least not "measurably" prolonged). But Rodriguez disallows unrelated dog sniffs that prolong a traffic stop.

This outcome leaves us with a "hard" Fourth Amendment durational constraint on traffic stops but with only a conditional topical constraint. So long as the durational constraint is respected--meaning the stop is not measurably prolonged--there is no topical constraint on police:  police are free to explore any topic they wish (e.g., ask potentially incriminatory questions unrelated to most traffic stops, such as about weapons or drugs or other contraband), as well as engage in suspicionless dog sniffs. It is only when the durational constraint is not respected--meaning the stop is unreasonably prolonged--that topical constraints come into play:  then police are no longer free to ask unrelated questions or conduct unrelated dog sniffs because doing so would violate the Fourth Amendment absent separate individualized suspicion.

This outcome results from Rodriguez somewhat incoherently embracing only half of Terry, as I mentioned above. Terry imposed both durational and topic constraints during stop-and-frisk encounters. As I alluded to in an earlier postTerry deemed both of these constraints necessary to compensate for the governmental authorization to seize and search based upon a lower level of suspicion (reasonable suspicion) than had previously been required (probable cause). Rodriguez accepts only one of these constraints (duration) while rejecting the other (topic) despite that traffic stops can be based upon nothing more than reasonable suspicion, as in Alabama v. White (1990). The Court has not provided a rationale for why this distinction is warranted. But this direction does perpetuate a newly emphasized trend in which the Court is setting up and tightening a special set of Fourth Amendment rules that apply to traffic stops and vehicles, as it did with search incident to arrest resulting from a traffic stop in Arizona v. Gant (2009) and with GPS tracking of vehicles in the blockbuster United States v. Jones (2012). Even the Court's major recent decision in Riley v. California (2014) is arguably part of this trend. Riley disallowed searches of mobile phones under the search incident to arrest doctrine. Though this holding was not limited to the traffic stop and vehicle context it is very important to that context, as is evident from Riley's own case (he was arrested, and his mobile phone searched incident to that arrest, after being subjected to a traffic stop for expired tags, which resulted in police discovering that his license was suspended). Given that traffic stops comprise the most common reason for police-public encounters this is an important and justifiable trend.

A significant issue will be how the reasonable duration of the stop will be measured. Imagine a sole officer making a traffic stop, as occurred in Rodriguez itself. Wouldn't any unrelated inquiry extend the duration of the stop? The time the officer spends making unrelated inquires is time the officer could otherwise be using to complete the stop. The only way this would not occur is if the officer is able to multitask (indeed, in Rodriguez Justice Alito's dissent claims this could have occurred had the officer conducted a dog sniff while awaiting the results of his record check of the passenger). Lower courts will now have to struggle with such questions. Wise defense counsel will work hard to establish the precise chronology in traffic stops, and these courts will be left to grapple with how to measure the reasonable duration of a stop based upon intensively fact-specific scenarios.

Posted by Fabio Arcila on August 19, 2015 at 09:00 AM | Permalink


Thanks, Fabio. I missed the citations to the courts that you say have held that the Terry framework imposes a topical constraint; I'll go back and look for them. Off the top of my head, I would have thought that there is no such topical restraint. I don't see the logic of Terry as implying it; the cause for the stop is the reasonable suspicion, and that reasonable suspicion allows a the stop and the questioning that follows. State courts interpreting state constitutions might have imposed such restriction, perhaps (NJ, probably?); but if anything, that implies Terry *doesn't* impose that restriction. The Supreme Court has never so closely scrutinized what was said during a Terry stop, as far as I know, and it has allowed stops in the 20 minute range: I'm assuming such stops tend to have a lot of questions outside the scope of the stop. It might even be a good strategy for questioning to be outside the purpose of the stop during a Terry stop: Asking unrelated questions on the way to asking the real questions might establish some kind of connection first. I don't know. Either way, I am a bit skeptical that Terry actually has that topical constraint you say it does. But I'll go back and read the cases you mentioned.

Posted by: Orin Kerr | Aug 25, 2015 1:10:15 AM

Orin, I don't think there is any U.S. Supreme Court case expressly saying that a topical constraint exists in Terry stop-and-frisks. But for the reasons I've explained I find that conclusion follows from the legal guidance that does exist. And as I referred to in a previous post, numerous state courts do too, and have sometimes imposed remarkably detailed "hard" topical constraints (though they often if not always couch this as emanating from a state law requirement).

This is a difficult topic in which there is a tremendous tension between doctrine, reality, and the limits of judicial review. One alternative is to apply a reasonableness regime to a Terry or traffic stop encounter once the encounter is itself justified. This would allow flexibility as to topic and/or duration. Maybe unrelated questioning, or an unrelated dog sniff, would be allowed if it was deemed de minimis (such as because it did not prolong, or at least measurably prolong, the stop, as in Caballes/Rodriguez). I have my doubts about how hard a look courts would generally apply to, for example, Officer McFadden asking Terry about an unrelated bank robbery that had recently happened, especially if it only added a few seconds to the encounter. But at the end of the day the Fourth Amendment demands a governmental justification for a search or seizure intrusion, and the logic of Terry suggests courts should be imposing some kind of limits consistent with this requirement.

Posted by: Fabio Arcila, Jr. | Aug 24, 2015 5:00:39 PM

Thanks, Fabio. Yes, my thoughts are different. I read that passage from Terry as just explaining the cause McFadden had to have to frisk Terry. I don't recall any Terry cases specifically saying that questioning outside the topic of the cause of the stop or frisk is not permitted. What authority has said, expressly, that questioning unrelated to the cause of the stop or frisk is not permitted?

Posted by: Orin Kerr | Aug 21, 2015 10:33:23 PM

Orin: Terry imposing a topical constraint seems an important factor to distinguish Terry stops from consent searches in which there is no topical constraint. Moreover, the Berkemer/Hiibel passages you mention concern whether the target has to answer. That is a separate issue from whether any topical constraint is imposed on the police who are asking the questions. Moreover, the White concurring language from Terry that led to the Berkemer/Hiibel passages was clearly overbroad and itself confounded the difference between consent-based stops and inquiries/searches (which are totally voluntary), and Terry stops and inquiries/searches (which are involuntary). Hiibel proved the overbreadth of White's concurring Terry opinion. White had posited that in a Terry stop supported by reasonable suspicion there was no obligation for the target to answer, and the failure to answer could not be held against the target. Hiibel shows that was untrue, as arrest can result from failure to provide identity, when asked, so long as the stop-and-identify statute is constitutional. (This is not the only noteworthy part of White's concurring opinion in Terry, which also posited that frisks could occur absent any questioning, which is inconsistent with the Terry majority opinion though I think reflective of the actual state of the law in lower courts.)

Resonant with Rodriguez's emphasis upon the "mission" at issue (which you have blogged about), and Rodriguez's emphasis that it circumscribes what can happen in a Terry stop-and-frisk, Terry stated (at 20-21) that "In order to assess the reasonableness of Officer McFadden's conduct as a general proposition, it is necessary 'first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,' . . . . And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." This must impose a topical constraint on Terry stops, with legitimate topics assessed by the mission at issue. Questions on topics outside that mission are not justified by the governmental interest that authorized the stop in the first place, and thus they are unjustified and have to be separately legitimized.

As I explain in my post, where this leaves us is that Rodriguez creates a distinction between classic Terry stop-and-frisk stops on one hand, and traffic stops on the other. The "hard" topical constraint endures in Terry stops, but it is now conditional in traffic stops (per Rodriguez, as I explain in my post). It may be that the Supreme Court will seek to impose uniformity by revisiting Terry and removing the topical constraint, but I doubt that will happen because in the traditional Terry context it is quite possible to maintain a distinction between involuntary Terry stops and consent based stops. But there is no effective way in traffic stops to engage in a consent based stop. So that distinction is what has led the Court to create this traffic stop distinction in Rodriguez.

If you have different thoughts I'd enjoy hearing them....

Posted by: Fabio Arcila, Jr. | Aug 21, 2015 7:57:42 PM

Errata: should be "what makes you think Terry imposes...." Sorry about that.

Posted by: Orin Kerr | Aug 19, 2015 8:08:48 PM

Fabio, maybe I should rephrase: What makes you Terry imposes a topic constraint on questioning? Your earlier post cited language in Berkemer for that, but Hiibel discusses that language from Berkemer and appears to say it has a different meaning for it than you appear to be giving it. So my question is, given Hiibel's treatment of the language from Berkemer, why do you think there is a topic constraint on questioning during Terry stops?

Posted by: Orin Kerr | Aug 19, 2015 7:50:28 PM

Orin, I don't see how Hiibel changes Terry. Hiibel approved of some stop-and-identify statutes. Stop-and-identify is part of the "stop" part of Terry stop-and-frisks, as Hiibel itself recognized ("Our decisions make clear that questions concerning a suspect's identity are a routine and accepted part of many Terry stops.") ("The principles of Terry permit a State to require a suspect to disclose his name in the course of a Terry stop."). So I don't see a tension between Hiibel and Terry unless one wants to read Hiibel very, very broadly...and I'm inclined to say more broadly than it can support.

Posted by: Fabio Arcila, Jr. | Aug 19, 2015 6:38:14 PM

Jimbino, what authority would you cite for that?

The jurisdictions I am familiar with appear to have the rule that you say is a "canard." See, e.g., Robledo v. State, 175 S.W.3d 508, 510 (Tex. Ct. App. 2005) ("Authority holds that as part of a traffic stop, an officer may 1) require the detainee to identify himself and produce a valid driver's license and proof of insurance[.]") (citing cases); D.C. Mun. Regs. Tit. 31, § 800.3: ("A traffic stop may include, but is not limited to, stops to verify compliance with license requirements; insurance and proof of insurance requirements. . .").

Meanwhile, a Westlaw search in the ALLCASES database for "proof of financial responsibility" in the same paragraph as "traffic stop" yields zero hits.

Posted by: Orin Kerr | Aug 19, 2015 4:19:15 PM

Reports keep repeating the canard that "proof of insurance" is required at a police stop. Wrong. What is required is "proof of financial responsibility," which can be satisfied without insurance.

Posted by: Jimbino | Aug 19, 2015 1:27:47 PM

Post-Hiibel, is it clear that the Terry line of cases impose a topic constraint on questioning?

Posted by: Orin Kerr | Aug 19, 2015 10:37:39 AM

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