Traffic Stops and the Fourth Amendment

Mark Joseph Stern is optimistic about the implications of last week’s ruling in Rodriguez v. U.S.:

The real wild card here is Chief Justice John Roberts, who seemed so unperturbed by traffic stops during oral arguments in Rodriguez that he joked about them. Roberts also penned the shrugging, myopic opinion in Heien, noting that the case presented “little difficulty.” What changed between December and April? It could be, of course, that Roberts simply views this as a distinct case with different facts that lead to a less police-friendly outcome. It could be that in the last few months, Roberts got pulled over—apparently for the first time in his life—and finally grasps how fraught such encounters often are.

There’s another possibility: Perhaps the savvy, media-aware Roberts has finally learned the lessons of Ferguson and is trading in his logical abstractions for some much-needed legal realism. The Justice Department’s investigation into Ferguson revealed a system of law enforcement that used police power to target minorities and trap them in a cycle of debt and incarceration. From 2012 to 2014, blacks made up 67 percent of Ferguson’s population but accounted for 85 percent of traffic stops. Even worse, blacks were twice as likely as whites to be searched during the stop—though whites were 26 percent more likely to have contraband.

Anybody who hears of these abuses—and it’s hard to imagine Roberts did not—should be able to see why the Rodriguez decision is so obviously correct. The officer held Rodriguez for eight minutes after issuing his warning, despite the fact that, in his words, “I got all the reason[s] for the stop out of the way.” He had no reason to believe Rodriguez was carrying drugs; his decision to hold him was a mere exercise in arbitrary power. Curbing cops’ ability to detain drivers on absolutely no reasonable suspicion won’t solve all the problems Ferguson exposed. But, as Roberts may have realized, it might dissuade officers inclined to use their authority to intimidate citizens out of exercising their constitutional rights.

I hope that the decision indicates that Roberts is changing his mind, and the Court was correct that the drug search in this case violated the Fourth Amendment. And yet, it’s a very narrow decision, and I’m not sure that it will prove very consequential. Both dissents raise disturbingly persuasive points:

• Ginsburg’s opinion left the question of whether the search was justified by individualized suspicion open.  This is potentially problematic, because Thomas’s dissent makes a good case that under the existing precedents “reasonable suspicion” is all that’s required to hold someone in a traffic stop for investigative purposes, and the failure to make eye contract and presence of high amount of air freshener is sufficient to meet this standard.  To be clear, I agree with Stern that it’s absurd to think that these thin reeds should count as individualized suspicion sufficient to justify a search for drugs incident to a stop for a minor traffic violation.  But it’s entirely possible that the evidence will be held to be admissible against Rodriguez by 8CA, which reveals a serious problem with the applicable doctrine.
• Alito’s dissent also makes a good case that this decision can be easily evaded by the police simply by changing the sequence of their actions.  As long as the police bring in the dogs before issuing the ticket/warning, they can in most cases conduct a drug search without probable cause during a traffic stop and get the evidence admitted: “The Court refuses to address the real Fourth Amendment question: whether the stop was unreasonably prolonged. Instead, the Court latches onto the fact that Officer Struble delivered the warning prior to the dog sniff and proclaims that the authority to detain based on a traffic stop ends when a citation or warning is handed over to the driver. The Court thus holds that the Fourth Amendment was violated, not because of the length of the stop, but simply be-cause of the sequence in which Officer Struble chose to perform his tasks….The rule that the Court adopts will do little good going forward. It is unlikely to have any appreciable effect on the length of future traffic stops. Most officers will learn the prescribed sequence of events even if they cannot fathom the reason for that requirement.”  I wish I could say I disagreed with Alito’s predictive analysis, but he’s probably right.

Of course, I take the opposite lesson from Alito’s assessment of the consequences than Alito will.  4th Amendment law in this area (as I’m sure Stern would agree) needs to be substantially revised.  Illinois v. Caballes should be overruled, and routine traffic violations should not be permitted to serve as a pretext for drug searches.  Officers conducting a traffic stop are justified in searches necessary for their security, and that’s it.  Drug searches that go beyond this narrow scope — including searches by sniffing dogs — of cars stopped for minor traffic violations should require probable cause, not “reasonable suspicion.”  The Court, by effectively permitting traffic stops that are a pretext for drug searches, has opened the door to arbitrary and abusive police behavior that is inherently subversive of the rights protected by the Fourth Amendment.