tv Key Capitol Hill Hearings CSPAN January 31, 2015 5:00am-7:01am EST
one gene. one night in 2012, bill tried the new medicine for the first time. just a few hours later he woke up knowing something was different. finally he realized what it was. he had never been able to breathe out of his nose before. think about that. bill is now 27. when he was born 27 was the median age of survival for a cystic fybrosis patient. today bill is in his third year of medical school. for the first time in my life bill said -- [ applause ] >> for the first time in his life, he says i truly believe i will live long enough to be a grandfather. one day, bill will be able to tell his grandchildren about how he used the miracle of his own
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radio and cspan.org. >> the supreme court recently heard a case regarding the length of time the police can conduct a traffic stop. once an officer issues a ticket or warning for a traffic infraction, drivers should be allowed to leave. the justice department argue police should be able to extend the traffic stop for a reasonable amount of time. this is an hour. >> with your argument next this morning in case 139972 rodriguez versus the united states. mr. o'connor. mr. chief justice, it may please the court the big issue that starts in this case that whether after completing the task related to a traffic stop whether an officer without individualized suspicion can hold the driver for a dog sniff specific question in this case
is whether officer strubel was entitled to piggy back an already completed traffic offense with probable cause onto that traffic offense for an investigation of mr. rodriguez involving nothing more than a hunch. that is the question of the case. >> but that remains -- that wasn't reached by the court of appeals. the district court as you pointed out rejected the argument that there was probable cause saying it's nothing more than a hunch but that was not reviewed by the court of appeals so that could still be open. >> the decision of the court of appeals your honor absolutely. that was a dimimus ruling. they did not reach the question as to whether there was
reasonable suspicion and left it just based on their ruling of whether in fact this was a diminus action. >> counsel, do you concede that this would be all right if the dog sniff took place during the traffic stop. in other words let's say there were two policemen there already, one says i'm going to write you a ticket and while that's taking place the other policeman walks around with the dog. no problem with that. >> there would be no problem mr. chief justice if in fact all of that was done before the traffic ticket was written. if in fact the dog was taken around the car prior to the completion of the traffic stop and the ticket then of course, it would be -- >> all right. mr. o'connor, it's frequent that a policeman when he stops somebody for broken tail light or whatever will conduct some
other inquiries. you know where are you going? ask a lot of questions. he will check whether the person is -- is driving a stolen car. whether the person is properly licensed. all of that has nothing to do with a broken tail light and yet that's permitted right? >> would it be permitted if he did it after he wrote the ticket? >> at that point in time, no. >> is that right? >> he can only do that before he writes the ticket? >> if -- >> what if he's not giving a ticket. he's just going to give him a warning? he says to them, you shouldn't have done that and you went a little bit over the line. be careful next time. by the way let me see your drivers license. that would be bad? >> yes, your honor.
>> that twould be because that would be part of the stop. all of those questions would be -- once the stop is finished then he should be allowed to go no matter what the question was. >> is it your argument that as soon as all of the steps that must be taken in connection with the traffic stop are completed, then the stop must end or is it that nothing more can be done after the ticket is issued? in other words is it the length of time or is it the formal act of giving the ticket or the warning that cuts things off? >> it is the formal act once the traffic stop is done which would be the reason which would be the purpose for the stop once that is done that is the -- >> when that is done is not
clear. two questions in justice scalia's hypothetical the officer said i'm not going to give you a ticket but i just want to ask you a few questions, it seems to me that under your argument those questions are im imimim imimim impermissible impermissible, he says i have finished writing the ticket, i am going to giver you this ticket but i'm first going to go back and see if my radio check has come in to verify your license plates. is that permitted? >> if this is the end of the traffic stop. it is not. >> but first of all -- >> these are hypotheticals that
have a wrong preassumption,sumptionpresumption. those include checking for warrants checking for tickets on the car checking identity, asking questions about that and generally with with identity, it also has to do with where are you going and where are you coming from correct. >> yes, your honor. >> all right. justice sotomayor. my question for you and it can't be the formal act of writing the ticket, it has to be the formal -- it has to be the acts related to the mission when you finish those, that's when the stop ends. >> yes your honor. that is exactly right. >> yeah but you've tied it to just writing and handing over the ticket or not even doing that. you're staying just writing the ticket which is crazy. >> if in fact that's the
impression that i gave. that is wrong. it is not the formal handing of the ticket. it is when the stop is complete. once the justification for the stop and the purpose is complete, the ticket is done whether it is a warning, whether it is handed to them at some point in time, the ticket is done. that's the investigation. >> justice sotomayor's question assumes and you apparently embrace the assumption that checking on whether you have a proper license, checking whether the car is stolen, all of those things are embraced within the mission when the only basis for the stop is you have a broken tail light. how is it that have anything to do with a broken tail light. >> those are things your honor that have been accepted as part of the process. >> i see. well, maybe dog sniffing should be too right? >> dog sniffing is accepted so
long as it is done before what before completion of the mission. >> which includes not just the broken tail light but also inquiring into your license, inquiring into prior arrests. that's all part of the mission. >> yes, your honor. >> why won't you make the dog sniff part of the mission and that will solve the problem? part of the mission when you stop somebody is not just the broken tail light but, you know, whether the car is stolen. whether you have drugs in the car so let's bring in a car and do the car sniff. you're willing to expand the mission to do everything up to but not beyond the dog sniff. why do you do that? >> you expand the mission your honor for everything that comes within the task that are part of the traffic stop. the dog sniff -- >> it's a broken tail light. that's the only thing that comes within the traffic stop. all the rest is added on and you let them add it on. why don't you let them add on
the dog sniff. >> you do so long as it occurs before the ticket is delivered, is that right. >> you do if it's done before the traffic stop is done. the ticket would not be -- >> do you see the problem is how do you define the traffic stop. you've already indicated that the traffic stop can include some of the questions. you're really i think much better off if you stick with the former rule. once you hand the ticket that's the end of it. then you have a formal rule. you're not arguing that. that leads us open to the question why can't we include the dog sniff. >> well -- >> it's a policy question. so answer it as a policy question. don't tie it to the stop or not. tie it to something else. >> as a policy question, if you could end it with the handing of the ticket, that would be acceptable. if we tie -- if we tie the traffic ticket as the end of the justification for the stop.
>> it's okay to have a dog sniff so long as it's before the ticket is issued then every police officers other than those who are uninformed or incompetent will deliver the handing over of the ticket until the dog sniff is completed so what does that accomplish? it's great for your client but what does it do for the law? >> your honor, i think what it does first if you have officers that wait -- if that's the question your honor, if they wait to put the ticket -- >> if we adopt a formal rule. that's one of the options once you hand over the ticket, that's it. you can't do anything more. the person has to be allowed to go, all right. is that your argument or not. >> that is your argument. then what does that accomplish? >> it accomplishes is the enforcement of the fourth amendment. once the stop is done, once the
purpose is done, the justification is done. the -- >> the question is is this very -- just the easiest thing to get around by simply saying the sequence in which i will do this. i won't think of issuing the ticket until i've had the dog sniff. so that's the problem. what are you accomplishing say we make the handing over of the ticket the end of the legitimate stop well then the police can just say i'm going to defer that a few minutes until the dog sthif sniff occurs. it just means that you're not going to accomplish any protection for individuals if that's your position that if it's just a question of when you
do it so if you do it during the stop, before the ticket is issued, it's okay. if you do it two minutes after it, it's not okay. >> your honor, it is okay when the traffic stop is done. when the mission is complete. >> you can't possibly mean that. >> you can't possibly mean that. the stopping officer says yeah, i'm done. i got my ticket here. it's all written out. however before i give it to you i want to have a dog sniff. i'm going to call in to headquarters, they are going to send down a dog. it's going to take maybe 45 minutes. you just sit there because the traffic stop is not terminated till i give you your ticket. you're going to allow that. >> well, again, the formal handing of the ticket is not the end. in your example -- in your example he hasn't turned over the ticket yet. he says i'm not going to give
you the ticket until the dog comes. that's going to take 45 minutes. that's okay. >> no, the traffic stop is done. whether he hands the ticket to him at that point in time. >> he has not handed the ticket over. he has kept the ticket. and the reason that he has kept the ticket is for the dog to come. >> but that is past the -- that is mastpast the traffic stop. >> you're not applying a formal test. i thought you were saying it's a formal test. when you deliver the ticket is the termination point but that's not right. >> so what is the test? >> the formal test -- >> how long a normal stop would take? >> the formal test -- no, your honor. that would not be the case at all. the formal test is when the mission has been accomplished. if you pull someone over for the traffic offense. and in if fact you do all of the tasks that are necessary to complete it. when it is completed, it is
done. >> what if the officer says, i need to think about this for a while. >> the officer says i need to think about this for a while. i'm going to go back. i am going to ponder how long it took you. i am going to think about other tickets that i have given in the past. the dogs are going to be here in eight to ten minutes. i need that to think about it. is that okay because he has not written the ticket. he waits till he has thought about it for a while to write the ticket. >> no, your honor. that's not okay at all. what has to happen is the officer must be diligent. he must be diligent going towards the investigation of the traffic stop. again, i think we're putting -- if i am the one of the misleadingly of the this, i apologyize apologize. handing of the ticket is not the end-all. handing of the ticket is the task that's done. i got pulled over for a driving offense, then it is over.
in your example mr. chief justice, good he's pondering, then he's not being diligent. if he's pondering, and not being diligent. >> gee we ponder all the time and we think we're being diligent. >> pondering is not diligent. >> unless the pondering is to avoid the diligence. that would be the question. the question is therefore if in fact the officer is pondering the ticket he says i'm going to wait until the dog comes you are then extending the time of the stop and it violates the rule that you have -- >> you know -- >> i'm not sure. can he ask for the registration usually when you'restoned edstopped he asked for the license and
registration. >> well, what's pertinent about it is it is part of the traffic stop not only do you have the driver but you're looking at the driver, the driver's history the car. all of those things are part and partial to the task towards the offense. >> if you saw the car swerve what does that have to do with the car. the car was just doing with what the driver did. i don't see why you need the registration of the car. >> what you can do -- mr. chief justice, i think you do. i think that is part of the investigating the traffic offense. those are things that have been accepted and accepted might not be the right word. adopted as things that you can do in a traffic stop. now, there are certainly times when you go beyond the traffic stop and you have the johnson case, if in fact, you go beyond
the traffic stop, even measurably beyond it then you have violated the driver's rights and it is unconstitutional. the question in that case occurred during the traffic stop. >> mr. o'connor, is this particular traffic violation, was that an arrestable offense? >> no. under nebraska law, no it was not. it's a traffic infraction. >> because it was an arrestable offense, they could arrest the driver and then impound the car and do an inventory search. >> if it was an arrestable offense, yes, your honor. i think that's correct. >> but you're saying it's not an arrestable offense. >> it is not and regardless, i mean he was -- see here is what we do know about this case. not only do we know the mission is done because of the tasks
that were completed. you have the officer that says, i have done the task, everything that needs to be done with this offense -- with this traffic stop is finished. it's finished. there's no question about that. then there's no more justification. in order for the driver to continue to be detained there must be new justification or consent which you did not get in this case but you must let the driver go because you are at the end, you are finished with the traffic stop. you are finished with the reason that he was detained in the first place. the purpose going across the fog lines. >> can i ask you a simple question. yes, we've permitted a dog search but in the cases that we have, sobalace and others, it
was done siemmultaneous with the traffic stop, correct. >> correct. >> you said in your brief, a dog sniff is not a police entitlement to which the fourth amendment limits have been. is there a line that we should draw at how long citizens should be kept by the side of the road? >> i think that the -- all right. >> so announce what that line is. that's what i think everybody is has been asking you. >> the line is -- i can start off with perhaps the johnson case again. when the stop is basically -- when the stop is done. >> why don't you just do a simple test. if you're going to do a stop, you can't reasonably extend or pass the time it takes to deal with the ticket correct? that would be the simple rule? >> i think that the simple rule if i may propose one is the same one that professor lafave has
per proposed. the officer sees the infraction. the officer pulls the person over. the officer tells the person what the infraction is. he does the license, registration, runs the car. when that is done, he gives them the ticket, the warning ticket. that is end of the traffic stop. there's no other reason to hold the person after that point in time. >> you say he runs the car, he puts the license plate into the radio and waits from the report from the station as to whether or not the license is okay. >> yes, your honor. >> why is that part of the mission and the dog sniff is not. that's the question. if you're not going to have a formal rule, you have to explain why somebody is pulled over for a broken tail light, why adding any time to the stop in order to do a records check is part of the mission but the dog sniff is
not. i could understand the rule. you pull somebody over for a broken tail light. may be you get the registration and maybe sure you write out the ticket to the right person and then you give them the ticket and that's it. no time for the records check. what does the records check have to do with pulling somebody over for a broken tail light. i can understand that. but is that your argument? >> well if that is -- that is part of what the courts have accepted as part of the stop. you are looking at the vehicle itself. now the dog, your honor, is different. the dog is different because the dog is not a task related. what the courts have accepted as related to a traffic stop. it is a collateral offense -- or collateral event where you have the dog sniff and do nothing more than look for drugs. >> your answer is -- i don't want to interrupt, your answer is the courts have accepted you can proprolong this a little bit to do a records check but then you have to explain why the dog sniff is different.
>> you're not prolonging it your honor to do a records check. that is part of the stop. as long as the officer is diligently working towards the mission. >> why is it part if that's the question he has suggested, it's unrelated to the traffic stop. you're looking to see if he this person has a record of committing other crimes for example. what does that got to do with whatever the traffic stop infraction not stopping at a stop sign. what has checking to see if the defendant has a criminal record got to do with that. >> that is something that the courts are looking at as to whether that is something that you should be able to do that. the courts have generally accepted that. what i can come back in this particular case is not something that happened in this case because it is clear-cut. now, that issue is extremely
important but it is something that i don't think can be done today. >> he can -- i mean one reason i think they do the records check the officer needs to know who he's dealing with. i think one of the higher incidents of when officers are shot and wounded is when they make a traffic stop. if you run the registration you see it's a stolen car, you need to know that before you go back and deal with the driver and other occupants. what if the officer determines that he's concerned about that either as a general matter or as a specific matter, he takes the license and registration but he's not going to go back to the car until he has back up. so he calls ahead and says i would like back up and the person says it's going to take 25 minutes and that's fine. is that a legitimate reason. the traffic stop is not over. he doesn't want to go back. he's alope andne and doesn't know who
these guys are. >> that's a legitimate reason. >> okay. so what if the back up is a canine unit. >> the canine unit gets there. you have told us it hasn't been prolongs and has the officer goes up to give the warning, the dog walks around the car. is that all right. >> i think that's all right because the reason you have diligence of the officer. officer safety is certainly a reason to ask for back up. once the officer is there, the officer completes the traffic offense. everything is done and before that the dog has run around, i don't think that there is a problem with that because the delay was for a legitimate reason for not putting the ticket in your pocket. if there are no further questions, i will request the remaining for rebuttal. >> thank you. thank you counsel.
ms. anders. >> mr. chief justice and may it please the court. in order to avoid the arbitrary results that the bright line rule would impose on traffic stops, a dog sniff conducts during a traffic stop should be subject to a reasonableness analysis analysis. >> how long is reasonable. you keep saying in your papers you have to look at the totality of the circumstances. but i don't know what that means. i think that keeping me most of the time and chief, i have been stopped, keeping me past -- >> so have i -- >> keeping me past giving me the ticket is annoying as heck whether it's five minutes, ten minutes, 45. but how do you define that. what are the circumstances that would make any difference in holding somebody five minutes or 45? it all has to do with your needs, not the passengers needs. >> well, if i could explain what
the reasonableness approach is. first of all it's not a approach that focus on the amount of isolation. it's a question about the objective reasonableness of the stop. >> to accomplish what. >> to go into their hoeme and search their home. is that okay. >> the reasonable ledge of the stop is the -- a stop is reasonable even if it includes a dog sniff if its duration is within the amount of time the range of a reasonable routine traffic stop that's don't involve dog sniffs so we're talking bay length of time that's tethered to the stop. >> so in addition to routine traffic stops, the officer has to be reasonably diligent which means he has to be focused overall. >> what's the heartland of routine traffic stops. you have a minimum criteria. half hour. >> i think within the universe of routine traffic stops. the courts have applied a
routine analysis to routine traffic stops for 30 years. >> what is it. i want to know what it is so i can complain when it is longer. >> it depends upon the circumstances for instance a stop may take longer if there are more people in the car so that a officer has to check the criminal histories of more people in the car. he has to be more worried about officer safety. >> how many minutes when there are three people in the car? >> you got to pick a minute. don't you have to pick a minute sooner or later to decide these cases? >> no, i think in every case the court has to look to the totality of the circumstances. >> and pick a minute. >> so it's not possible to pick a minute in the abstract. >> what more do you need. there's three people in the car stopped for a broken tail light. >> as we said in our brief when that situation occurs courts have upheld a stop up to 35 minutes. >> the problem -- i have a great idea. why don't we say taking your
test that the stop you can do whatever is normal there, but it cannot be prolonged more than the time reasonably required to complete the mission which happens to be giving a temporary traffic ticket or we could say it cannot last longer than is necessary to ae affectuate the purpose of the stop. are you saying anything different? >> i don't think so. if so, what? if not, since this is a case where apparently the lower courts have said it did last longer than was reasonably necessary because the policeman said that's why in affect said according to the judge, i called the dog after the stop was over for something like that. we cite those two cases. say those are the tests. affirm or reverse i guess.
good-bye, we say to all the litigants and hope you're happy. when i hear you say that it sounds like that's what you think we should do but i suspect you don't but i want to know why. >> well, we think the amount of time reasonably required to complete a traffic stop is the duration it takes looking to other similar stops, it's the duration. >> it is the time necessary to affect uate the purpose of the stop or it is the time that is reasonably required to complete the mission. >> right and stop and fall within that reasonable time frame. >> okay. so that's the end of this. of course if it's in the middle of it and you call the dog but you can't prolong it beyond the time reasonably necessary. now, i have said that several
times. i think you may agree with that. >> if you do agree with it here it was prolonged more than reasonably necessary at least that's what they found. end of case. >> i think looking to whether the dog sniff occurs before or after the traffic ticket is given, well give significance to the officers sequencing decision when he gives the ticket. as i understand petitioners position it is in the midst of a traffic stop let's say it lasts ten minutes, the officer spends one minute on a traffic stop that is okay even though it has incrementally increased the length of a time but then you have the same stop where the officer gives the ticket first and adds -- >> there are a lot of problems with any rule based on reasonableness and of course, there will be difficult problems. but here we've said twice that once the stop is over, ie, goes beyond the time reasonably necessary to complete the mission, you cannot call in the
dogs. and before you can. now, of course there will be anomalies in that respect. of course there can be bad faith exercises. of course there can be confusion as to which is which but that's inevitable in the situation and we can't do anything about it. now, what can you suggest that would just help us and show we could do something about it? >> well, i think it's a pretty serious anomaly. >> well, it may be but i'm asking you what is is it that we could say better then the language of the two cases? i'm not denying there is a problem with what you just said. there is. you might decide to do it beforehand and do all kinds of the excuses. you know people everyday of the week make up reasons but if you want a better rule than the one laid down in the two cases, what? >> well, i think there are two ways to understand the language in the cases you're referring
to. one as i think you're suggesting that the time reasonably required to complete the traffic violation means that time and nothing else. so that any delay attributable to a dog sniff, as opposed -- >> no i don't think you have to do that. you get into arguments about it. was it reasonably necessary it's cannot be prolonged beyond the time reasonably necessary. it is difficult sometimes to decide what is reasonably necessary. >> once we accept that a stop can be incrementally prolonged for purposes of a dog sniff if that dog sniff occurs during the stop, so that the officer is doing nothing but that dog sniff. he's adding one minute to a ten minute dog sniff then the question would be whether that 11 minute total stop is reasonable. that's the exact time intrusion that would occur if the officer decided to do all of the traffic related tasks first. that took ten minutes and then
he it a dog sniff immediately waf ward afterwards. >> can i get a little clarification on your argument. if i understand what you've opinion saybeen saying, you are accepting the idea. that the dog sniff is something that's extraanneous to the mission of the stop. >> we're not suggesting that's an ordinary incident. >> but since the court said that a dog sniff is permissible to performing stops sometimes we think that the analysis as to when it is permissible. >> right i'm not getting there yet i just want to understand because some of the questions have focused on what is a stop? what's the mission of a stop? what's entailed in the normal mission of the stop? and you're not contesting they dog sniff is not something that's entailed in a normal stop even though there might be occasions when you can do a dog sniff attendant to a stop. >> i think that's right but as other members of the court have suggested, once there's probable cause to stop someone.
>> suppose you have a police department, it's in a small state, they have every police cruiser has a canine and they make it just as common to you know to check on the license plate, call in to see if the person has any prior convictions, so also, they always take the dog around the car. it's a routine part of a traffic stop. >> i think it would be per permissible for them to do that as long as within each stop it fell within the reasonable amount of time it would take for a reasonable traffic stop. >> including the time for the dog sniff. >> i think we would not include the dog sniff. >> why not? >> well, i think -- >> that's what a routine traffic stop is for that jurisdiction. >> well, i think our point is once there's probable cause to perform a site of legitimate
investigative inquiries that if the officer can do other investigations during that time then it ought to be constitutionally reasonable to do that. that's what the courts of appeals have held. >> okay. but i thought the position that i have tried to say -- let me state it more clearly. i think, it is unlawful to have the dog sniff where the dog sniff unreasonably prolongs the stop. is that okay ifwith the government if i write those words in an opinion. >> that's right. we don't think a dog sniff doesn't reasonably prolong a stop. >> how if the ticket writing is over and there is nothing else to do and the policeman says hey, this is over. at that point, has it not unreasonabley prolonged the stop if the sniff takes place
afterwards? >> i don't think so. >> because -- it takes only two minutes. >> that's not unreasonable, right. big deal the dog walks around the car for two minutes. it's only a violation of the fourth amendment for two minutes. right? the reason i don't understand -- i don't understand when you talk about prolonging the stop. are you talking about here is the amount of time that you are needing for the traffic stop and you're allowed to prolong it sometime after that or is it that the sniff is part of the time for the stop so you're not prolonging it at allment you're including it. you're wrapping it up in the stop. >> no i think we admit that the dog sniff can prolong the traffic stop that it is not routine part of every single traffic stop. we're not trying to make that argument but i do think that just because a dog sniff prolongs a traffic stop but some incremental amount of time doesn't mean the traffic stop unreasonable unreasonable. >> it can prolong it.
>> what else besides we have the extraneous dog sniff doesn't relate to the traffic violation, what else? could the police say i have taken the time i have needed to look into this traffic violation but we're in a high crime neighborhood. so i would like to keep this driver a bit longer. so i can interrogate him about what other things he might have been doing. it's not going to take eight minutes. but traffic stops, taking care of that, and now instead of having the dog come the police officer says i have a few questions i want to ask you.
>> the court held in arizona versus johnson that questioning about an unrelated matter is not -- like a dog sniff it is not an independent fourth amendment intrusion. again, i think the only interest at stake from the individual's point of view is the interest against unreasonable delay. and since that is the case, i think that the officer can incrementally extend the stop so long as the duration of the stop -- >> what about this see, i see your problem is you said well, it can't prolong the stop, the traffic stop more than reasonably -- it has to be -- take the time reasonably required to complete the mission. so we have the intermission prolongation which has to be reasonable and we have complete the mission. so complete the mission. once the mission is completed, it's over.
that's language from the opinion, too. complete, complete. good-bye, over. at that point, it becomes a violation of the fourth amendment. >> and that will lead to arbitrary results. if i could lead a scenario where that could occur and i tell you why officers often need to end up to do a dog sniff after the ticket. the hypothetical is you imagine you have two officers conducting the stop and the first officer is complaining the tickexplaining the ticket and the second is performing the dog sniff around the dog. if the officer performing the ticket ends first and the dog sniff takes 30 seconds. i don't think there's any reason to say that that stop that lasted a total of ten minutes has gone on longer. >> i have a real fundamental question, this line is only here because we've now created a fourth amendment entitlement to
search for drugs by using dogs whenever anybody is stopped because that's what you're proposing. is that really what the fourth amendment should permit? >> i don't think it's an entitle entitlement entitlement. once the court said that it is per mis permissible in some circumstances. >> why don't we keep it there which is when it's being done simultaneously with writing the ticket. if it's not then it's unlawful. >> well because that leads to arbitrary results as i was explaining with justice byiar. >> it's not arbitrary, the fourth amendment is arbitrary but it's nature. it says you can't search unless you have probable cause to search. >> well, petitioners rule would say that the hypothetical i propose is impermissible in every circumstance that even a 30 second extension of a short
traffic stop is always unreasonable even if that stop falls within the amount of time it usually takes to do routine traffic stops. >> ms. anders. >> you know, i think i read it differently than you. here is what i think they agree with you on and doesn't. they agree that a dog sniff is definitely not part of a traffic stop. they definitely say that even though a dog sniff is not part of the mission of traffic stop we're going to allow a dog sniff if it doesn't extend the traffic stop. if there are two officers and there's some other reason why you're not being detained a moment longer because of the dog sniff and cabalaes basically says sure no harm no, foul on that one but you're saying cabales gives you this extra
leeway to detain people even though it is longer than an ordinary traffic stop would take. i think that's just not right. i mean i think that reasonableness language in cabales is all about its an extra limitation the court says. it says like don't think just because this officer was really slow and it took a really long time to do the traffic stop and he was able because of that to get another officer in and do a dog sniff and it was all -- it's like an additional limitation that no, you have to be diligent and you have to be reasonable and the wayin the way you conduct the traffic stop. if you're not, the dog sniff can't come in even though it was conducted during the time the traffic stop occurred. but that's andational constraint. it's not some kind of extra leeway for the police officers to do things outside the bounds
of the traffic stop itself. >> well i think that's one way to read the language. the reason we don't think it's the right way is we know that a dog sniff is not an independent fourth amendment intrusion. it's not a search. we also know that it doesn't violate any independent scope liltation skroo limitation. it's not a search but the theory and with all of our cases is that you really can't detain somebody if you don't have some kind of objective reasonable basis for doing so. and that any detention and, you know, it might be ten minutes it might be five minutes or two minutes without that kind of basis, is a fourth amendment violation. >> but once the individual is already being detained for a traffic stop on probable cause, i think the implication is if the dog sniff takes any time than the intrusion we're talking about is the incremental delay. it's a temporal intrusion. so from the individual's perspective, her interest -- it's the same in avoiding the
dog sniff as it is in avoiding a warrant check or any avoidance. because that's the case we think delays attributable to dog sniffs should be treated like a warrant check or anything else. >> you've used several times the phrase incremental. i sense that it being less than, right? if the actual traffic stop is five minutes, then you wouldn't say a 15 minute dog sniff is incremental. so does the dog sniff have to be less than the traffic stop? >> i think that one of the things that courts should look to is the relative proportion of time of the dog sniff to the rest of the stop. the reason i think that's relevant is the officer this is the case in routine traffic stops as well, the owesfficer has to be rbleasonably diligent. i think they can take into account whether the officer is predominantly working the traffic violation. if he's able to do a dog sniff within a reasonable amount of time and not have the traffic
stop exceed the duration of a reasonable routine traffic stop then he ought to be able to do that. >> is that almost always the case that the dog sniff is going to take longer than the traffic stop? i would assume so the officer says license and registration. the dog sniff is something all together assuming the dog is there. if it really has to be incremental, i'm not sure it's hardly ever going to be reasonable. >> well, the dog sniff itself is a matter of seconds. in the cases it takes anywhere from 30 to 90 seconds to do a dog sniff so it is something that can be an inkrecremental delay. >> if the dog happens to be there, i we didsguess, well, even in a situation where the dog isn't there already. if the officer calls for the dog early enough and the dog arrives. there are situations in the cases we sited this in note 20 of our brief you have the dog arriving just as the officer is about to give the ticket. so that is a scenario that can occur. i do think there are several reasons why an officer may want
to give the ticket first and then do the dog sniff immediately and one is officer safety. how he orders and performs his tasks is infused with officer safety considerations so it can be a safer thing to ask to use the ticket the need to explain the ticket as a nonconfrontational way. >> i see. another aspect is i was seeing it the way justice kagen described it. one virtue of that but you may not think it is, is administrative. what do you tell the police department, well when you're in traffic stops, can you use dogs to sniff? >> yeah. you can. but remember, once it's over the traffic stop, it's over. done. finished. and by the way, if it isn't over yet, you still may get in to trouble if you're unreasonably prolonged the stop just to get the sniff. now that seems pretty easy to
explain. it's fairly bright line. as soon as you get into this other, just leaving it totally open, there's no check really on the -- not too much of one. now, i'm putting that to get your response. >> so as i understand it you're saying that -- this is subject to a reasonableness analysis that the officer can do a dog sniff and he can prolong the stop -- >> i was saying two parts. part one, traffic stoppers, you can use a dog sniff when you stop but not once the stop is over. unless you have cause or something. and during the stop that's part two, you can't prolong it but for a reason to have to do it all within a reasonable time okay. you can't unreasonably prolong it to get your dog in. you tell those two things. once you've told them the two things, they've got it in their
heads. when this is over, good-bye dog. >> when it's not over they better be careful not to unreasonabley prolong it. now, they will understand that and it will be both protecting what the fourth amendment protects also, i think, giving them enough leeway to conduct a traffic stop. >> well, so that makes the officer's sequencing decision entirely dispositive of whether it can occur. but from the officer's perspective, i think there's an interest in officers having some leeway to sequence the traffic stop. >> the way justice briar has said this, what he's saying is you can't unreasonably prolong it. you can't hold a person any measurable time that was in there to get the dog. and yes, it has to do with the resources the police department but we can't keep bending the fourth amendment to the resources of the law enforcement
particularly when this stop is not -- is not incidental to the purpose of the stop. it's purely to help the police get more criminals, yes but then the fourth amendment becomes a useless piece of paper. >> i think if you take what i said and take your answer i have to say your answer is right. it's just a bad affect of my rule. the virtue of the two part rule is what we said is the virtue of it. it's like many cases, there just isn't much more to say. am i willing to run this, they might purposely change the sequence. they might. that's true. somebody might. i don't know what he to do about that. the answer is i couldn't do anything about that. >> well we think there's a law enforcement interest in officers having leeway to sequence the stop the way they see fit. there's a reason the officer might want to give the ticket
contemporaneously before or after. >> suppose mr. anders with hypotheticals, the police pulls somebody over and starts the process and then the police officer says you know, i'd like a cigarette break now. cigarette probably takes about as long as the dog sniff took in this and he just, you know, smokes a cigarette and he goes back to work. all right, would you say that that was unconstitutional prolongation of the stop? >> well, an officer always has to be reasonably diligent so if the officer takes breaks for no valid reasons the stop would become unreasonable. >> okay so it would become unreasonable because there he was, he wasn't doing anything related to the mission of the stop. that's true if he gave the ticket and then said, i want you to stay while i take a cigarette break or it's true if he did it before he gave the ticket, either way. i guess what i'm saying to you
is i kind of think it's the same thing is once you've acknowledged that the dog sniff is something that's extraneous to the stop itself it's obviously more helpful to the police than a cigarette break but it's extraneous to the stop itself, then the same rules apply as if the police officer had just taken a form morm moratorium. >> we don't expect them to ignore potential evidence of criminal behavior. in fact they'd be remiss if this did. if the officer is able to do a dog sniff reason a reasonable amount of time it ought to be constitutional -- >> but then you really are saying because we have a reason to pull you over for a traffic stop that gives us some extra time to start questioning you about other law enforcement
related things and to do other law enforcement related business. and i never thought that that was the rule. i always thought is that once the objective basis for the stop dissipated, that was it. >> i think if you take unrelated questioning for instance, questioning about other criminal activity i think there's a strong law enforcement interest in officers having some leeway to pursue this within a stop. >> you told me that the officer could do that at least that's what i understood your answer to be. >> that's right. the officer can do that. i think it's important that the officer have some leeway so long as the overall time remains reasonable. if you think about questioning if the officer starts a question about where the person is going, we don't want officers to make finely tuned questions in the moment about whether the next question he asks is related to the traffic stop or not that's
why we think there needs to be some leeway for them to pursue the things that they need to observe so long as they can do that within a reasonable amount of time. we think it should be constitutional reasonable to do that. we always say the reasonable analysis allows them to collaborate. under petitioners view, even 30 seconds of a dog sniff would be unreasonable in ef casevery case. >> what your rule will lead to something along the lines, everybody will decide 30 or 40 minutes is something you said in your brief is reasonable for a traffic stop. and if you see a tail light violation, that's 40 minutes of free time for the police officers to investigate any crimes that they want because they can do it all in the range of what you've decided is kind of the reasonable traffic stop. >> i don't think that's how we envision the analysis going because the ultimate length of
time has to be within the duration of a routine traffic stop that doesn't involve a traffic sniff. that will vary based on the circumstances. so what we think courts can do is they can look at what the officer actually did and look to stops involving similar circumstances but not dog sniffs and determine whether the officer was able to do the whole thing within a reasonable amount of time. i think that's essentially what the court contemplated that with these fourth amendment inquiries that they are fact specific but the harder cases will be appealed and there will start being guidelines.