Rodriguez v. United States, an equilibrium adjustment

Yesterday, in a 6-3 opinion authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court determined that the Fourth Amendment is offended when police, without reasonable suspicion, extend a traffic stop to conduct a drug-dog sniff. Rodriguez v. United States, USSC No. 13-9972, 2015 WL 1780927 (April 21, 2015), reversing United States v. Rodriguez, 741 F.3d 905 (8th Cir. 2014).

Rodriguez could be an attempt at what Professor Orin Kerr has dubbed, elsewhere, in other contexts, a Fourth Amendment equilibrium adjustment.

To flesh out the conjecture, Rodriguez was decided after Reuters UK revealed the existence of the DEA's Special Operations Division/parallel construction program, a domestic intelligence-sharing program that secretly provides state and local police with possibly inadmissible (and possibly illegally obtained) intelligence of cash or drugs. While many suspected parallel constructions were occurring, the proof was lacking.

Until Rodriguez, police were free to find a traffic violation (or allege a violation that could not be easily disproven), extend the stop to run a drug-dog search that wasn't treated as a search for purposes of the Fourth Amendment (United States v. Place, 462 U.S. 696 (1983)), register a positive drug-dog sniff alert of dubious probative value, and then use that alert to 'discover' (and seize) cash or drugs that police already knew existed (via DEA intelligence), without having to reveal (or expose to judicial scrutiny) the true provenance of the possibly inadmissible evidence. Courts, however, were not privy to the fact that they were being used to sanction seizures prefaced on general and extrajudicial dragnets, thinking, instead, that the seizures were the products of articulable and reasonable suspicions developed within the stop.

Following Rodriguez, creating a parallel discovery of the cash or drugs that police already know of, via drug-dogs, requires executing the drug-dog search within the time it takes to conduct the mission of the traffic stop or finding articulable reasons to extend and expand the traffic stop for a drug-dog non-search search. This will often prove difficult. Where articulable reasons are absent, police will be confronted with foregoing seizure, commissively defrauding the court, or exposing the true provenance of the evidence to judicial supervision. Rodriguez, thus, is an incremental step towards restoring the background from which the court decided cases like Place; Illinois v. Caballes, 543 U.S. 405 (2005); and possibly even Florida v. Harris, 568 U.S. ___ (2013).

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