Court Says It's Not The Length Of The Constitutional Violation, It's The Violation Itself

from the shutting-down-one-Supreme-Court-decision-workaround dept

It appears some members of law enforcement are coming up with creative interpretations of the Supreme Court’s Rodriguez decision. The decision said that officers could not extend traffic stops for unrelated purposes. When the objective of the traffic stop is complete, the detainment ends and the driver is free to go, no matter how much an officer might want to seek consent for a vehicle search or run a dog around the outside of it.

What the court never said is that officers could violate citizens’ Fourth Amendment rights as long as they were quick about it. But that seems to be the conclusion some are drawing. A Kentucky Appeals Court decision [PDF] drives the Supreme Court’s point home. The key word in the Supreme Court’s phrase “unnecessarily prolong” isn’t “prolong,” but “unnecessarily.” (via

Damion Lane ran a stop sign and was pulled over by officers. As they approached the car, he appeared to be fumbling with something. Officers ordered him out of the car, cuffed and searched him (for officer safety, according to the officers). While this was happening, an officer ran a K-9 unit around Lane’s vehicle. The dog alerted on the car but nothing was found. The officer searching Lane did come across some cocaine in Lane’s pants pocket.

Lane moved to suppress evidence as being the result of an unconstitutional search. The state argued that the officers did have reasonable suspicion based on the totality of the circumstances, citing the “fumbling” movement in the car and Lane’s attempt to reach into his pocket while in the process of being cuffed. Also the usual stuff: dark outside, “high crime neighborhood.”

The state responded to the challenge of the evidence by pointing out the stop had not been “unreasonably prolonged.” This is true. The drug sniff occurred during Lane’s cuffing and conversation with the other officer. But that’s not what’s important.

A dog sniff does not have “the same close connection to roadway safety as the ordinary inquiries,” thus it “is not fairly characterized as part of the officer’s traffic mission.” Id. Because a dog sniff is not part of the ordinary inquiries, its inclusion in the traffic stop procedures cannot extend the time period for the stop, or, if it does, the dog sniff must have a causal relationship to the stop. As the Kentucky Supreme Court phrased the inquiry, “The ‘key question’ is not whether the duration of Appellant’s roadside detention was unreasonable; rather, it is whether the sniff search was related to the purpose for which Appellant was stopped[.]

There’s no free pass for violating rights so fast the arrestee barely knows they’ve been violated. And even though it would appear there was no “prolongment” of the stop, the use of the drug dog did actually make the stop longer.

Officer Merrick could have been attending to the “ordinary inquiries” – i.e., running Lane’s license and registration – or he could have been writing the traffic violation ticket during the time that he was having K9 Bowie sniff the vehicle.

The attempt to salvage claims of reasonable suspicion are dismantled by the court as well, which finds that taking a Han Solo-esque approach to crime-fighting tends to generate suspicion that is hardly “reasonable,” much less articulable.

Here, any suspicion about drug activity from Lane fumbling in the car as the officers were approaching the vehicle was simply a hunch or unparticularized suspicion, not a reasonable inference drawn from the facts in light of the officer’s experience. None of the factors individually constituted a reasonable articulable suspicion of criminal activity: not the high-crime area nor Lane’s nervous fumbling nor the officer’s hunch. And none of the factors combined constituted a reasonable articulable suspicion of criminal activity. Lane was not being evasive in his nervous fumbling. He did not get out of his car and flee, and he did not attempt to drive off.

And no points are awarded for moving the goalposts once the evidence was challenged.

In fact, Lane’s first pat-down was a safety pat-down for weapons. The officers testified that they were concerned about their safety due to Lane’s fidgeting and looking back when the officers were approaching. That reasonable articulable suspicion of officer safety is justified given the facts. However, the Commonwealth now attempts to ex post facto convert the original hunch that Lane might pose a safety threat into a new hunch that Lane might have possessed drugs.

The court goes on to point out that if it accepts the government’s reasoning, anyone in any area deemed to be the “wrong place” (or at the “wrong time,” i.e. “dark”) could be subjected to searches by law enforcement — an invitation this court isn’t interested in handing out.

It’s good to see courts recognizing it’s not the length of the unconstitutional activity, it’s the activity itself that’s a problem.

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Comments on “Court Says It's Not The Length Of The Constitutional Violation, It's The Violation Itself”

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Anonymous Coward says:

Still Not Good Enough!

The 4th makes it clear. No search or seizure without a warrant. Reasonable suspicion does not past muster. What you consider reasonable another does not, that is why the 4th written in kindergarten language says exactly this.

“It requires governmental searches and seizures to be conducted only upon issuance of a warrant, judicially sanctioned by probable cause, supported by oath or affirmation, describing the place to be searched and the persons or things to be seized.”

Not even going to jail is sufficient to defeat this clause. If he were arrested and held (not placed in jail) the police still require a warrant issued by a judge based on probable cause and particularly describing the place, person, and things to be searched and/or seized!

Anonymous Coward says:

Re: Still Not Good Enough!

The 4th makes it clear. No search or seizure without a warrant. Reasonable suspicion does not past muster. What you consider reasonable another does not

You’re reading a summary. Your link has the actual text, which says "secure in their persons [etc.] against unreasonable searches and seizures". And it provides limitations on warrants but doesn’t say a warrant is required for a "reasonable" search.

Anonymous Coward says:

Re: Re: Still Not Good Enough!

You just failed english.


I present, the 4th in its full glory.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In layman’s terms, the ONLY reasonable search is a search conducted with a WARRANT!

Please tell how much more simple does this need to be for you to get that? Do you need a dictionary and an English professor to work it out? In fact why don’t you just go and read up on what all the signers of the document had to say about it? They all say… what I just said!

You got no Warrant but probable cause? Yea, still no search for you officer! The probably cause is your justification to SECURE a warrant not to conduct a search!

Damn Clear, only a pithy turd cannot figure it out!

The Wanderer (profile) says:

Re: Re: Re: Still Not Good Enough!

Where does that say that the only reasonable search is a search conducted with a warrant?

I don’t see any such statement in the text of the Fourth Amendment, as you quoted it.

The text as given does seem to assume that only a search conducted under a warrant will be considered reasonable (because without that assumption, sticking these two clauses together wouldn’t seem to make much sense), but it doesn’t seem to say it explicitly.

On such omissions of explicit statement are layers of intrusive precedent built.

Norahc (profile) says:

Officer safety

If police officers are going to use the officer safety exception to pat down somebody for weapons, then they should not be entitled to the fruits of a search. Patting down a person on the exterior of their clothing to discover possible weapons is NOT the same as emptying out their pockets and searching through it. And if the police are going to claim that the feel of a plastic baggie in a pocket could be a weapon, then the courts should call bullshit and remind law enforcement they shouldn’t and aren’t going to be entitled to the fruits of a poisonous tree.

James C. Walker (profile) says:

Unconstitutional issues with traffic stops

Yet we have the Michigan versus Sitz case where the Supreme Court wrongfully decided it was OK to make traffic stops with absolutely no evidence that any particular driver has done anything wrong. Such roadblocks that stop an overwhelmingly large percentage of totally innocent drivers are completely wrong. Yes, they find a tiny percentage of drivers with issues, but in the particular case it was 2 arrests versus 124 innocent drivers sent on their way. The founding fathers would be appalled at how this ruling violates the Fourth Amendment principles.

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