Implications of Rodriguez v. U.S. on traffic stops, Virginia law
(as originally published on Virginia Lawyers Weekly on May 27, 2015)
By Rob Poggenklass, Tony Dunn Legal Fellow
Generic traffic stopA new Fourth Amendment decision by the United States Supreme Court may significantly alter traffic stop interactions with state and local law enforcement in Virginia. The case has also abrogated two decisions by the Virginia Court of Appeals, paving the way for new suppression arguments by criminal defense attorneys.
In Rodriguez v. United States,1 the court considered whether an officer, having completed a valid traffic stop, could extend the encounter for a few more minutes to pursue a criminal investigation. The 8th U.S. Circuit Court of Appeals had held that the officer’s seven- or eight-minute delay – which allowed him to employ his canine – constituted a permissible, “de minimis intrusion on Rodriguez’s personal liberty.”2
In a 6-3 decision written by Justice Ginsburg, the Supreme Court reversed. The Court had held a decade earlier (over Justice Ginsburg’s dissent) that a dog sniff did not constitute a Fourth Amendment search.3 But while the facts of Rodriguez include a canine, the decision hinges on two other points: (1) the initial stop for a traffic infraction and (2) the officer’s extension of that stop to pursue a criminal investigation.
Some traffic stops are better characterized as Terry stops4 because they are based on reasonable suspicion that criminal activity is afoot.5 But many stops, including the one in Rodriguez, are made ostensibly because a civil traffic infraction has occurred. The 8th Circuit and the Virginia Court of Appeals have allowed officers to pursue criminal investigations during stops for traffic infractions. In Rodriguez, the Courtputs the focus back on traffic safety by explaining, “On-scene investigation into other crimes, however, detours from that mission.”6
Recent Virginia Court of Appeals case law demonstrates how that court has strayed from Fourth Amendment principles in the traffic stop context. In Coleman v. Commonwealth,7 a Chesterfield County officer stopped a car for an inoperative license plate light, a civil traffic infraction. After running a warrant check, the officer noticed that a passenger in the car had a recent felony drug arrest. This prompted the officer to pursue a drug investigation that took between 10 and 12 minutes and led to Coleman’s arrest for possession with intent to distribute marijuana.
Citing its own precedent and a case from the 8th Circuit, the Virginia Court of Appeals found that “an officer does not violate the Fourth Amendment by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention.”8 The officer’s 10- to 12-minute detour into a drug investigation cannot survive the U.S. Supreme Court’s principal holding in Rodriguez: “Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Coleman has been abrogated.
The rationale for Coleman came from a case decided a year earlier and on much closer facts. A Virginia Beach officer stopped Gloria Ellis for an inoperative brake light.9 Intending to give her a summons, the officer requested her license and registration and ran a warrant check. While waiting for the record check, the officer recalled that Ellis had a narcotics history. The officer walked to Ellis’ vehicle and asked if she would consent to a search of the vehicle. Ellis said no. He asked if he needed to get a drug dog and Ellis said go ahead and get the dog. This interaction, which occurred solely because the officer chose to pursue a criminal investigation during a civil traffic stop, took approximately one minute.10 On the walk back to his car, the officer called for a canine unit, which arrived before he could complete the traffic summons. Following a canine alert, Ellis consented to a search of her person, where drugs were found.
Though Ellis is a closer case factually than Coleman, its holding11 cannot survive Rodriguez. Brief extensions of stops for civil traffic infractions are not de minimis intrusions on a person’s liberty. They are Fourth Amendment seizures, not based on reasonable suspicion or probable cause.
The Rodriguez case should also empower drivers and passengers to assert their rights during traffic stops. Officer Struble pulled over Dennys Rodriguez because he saw Rodriguez’s car “briefly veer” onto the shoulder before returning to the road.12 When Officer Struble asked Rodriguez if he would mind if Struble’s canine performed a walk-around of Rodriguez’s vehicle, Rodriguez said no. This prompted the officer to call for backup, further delaying a stop based on a traffic infraction. From the time Struble stopped Rodriguez until a warning was issued, 19 minutes had elapsed. Rodriguez’s assertion – saying “no” to Officer Struble’s drug investigation – forced the Fourth Amendment issue and increased his chances for victory on appeal.
After Rodriguez,the battle lines for argument at suppression hearings have shifted.13 In cases that involve stops for civil traffic infractions, defendants can argue that questioning unrelated to the initial reason for the stop unnecessarily prolonged the interaction. A record check is OK.14 But every minute spent by law enforcement pursuing a criminal investigation during one of these traffic stops is a detour that implicates the Fourth Amendment.
1 Rodriguez v. United States, 2015 U.S. LEXIS 2807 (Apr. 21, 2015).
2 United States v. Rodriguez, 741 F.3d 905, 908 (8th Cir. 2014).
3 Illinois v. Caballes, 543 U.S. 405 (2005).
4 See Terry v. Ohio, 392 U.S. 1 (1968).
5 See, e.g., Folly v. Commonwealth, 2014 Va. App. LEXIS 273 (Va. Ct. App. Aug. 5, 2014) (upholding an investigatory traffic stop based on an officer’s reasonable suspicion that a driver was in possession of cocaine with the intent to distribute).
6 Rodriguez at *14.
7 2009 Va. App. LEXIS 431 (Va. Ct. App. Sept. 29, 2009).
8 Id. at *7 (quoting Ellis v. Commonwealth, 52 Va. App. 220, 227 (Va. Ct. App. 2008)).
9 Ellis v. Commonwealth, 52 Va. App. 220, 223 (Va. Ct. App. 2008).
11 See supra note 8 and accompanying text.
12 United States v. Rodriguez, 2012 U.S. Dist. LEXIS 123426, *2 (D. Neb. Aug. 30, 2012).
13 Before Rodriguez, the Virginia Court of Appeals drew its own line at the moment when an officer produces a ticket or a warning. See Commonwealth v. Crooks, 2012 Va. App. LEXIS 364 (Va. Ct. App. Nov. 15, 2012).
14 Rodriguez v. United States, 2015 U.S. LEXIS 2807, *12 (Apr. 21, 2015).