This title was adopted from a line by Justice Sotomayor during the recent Supreme Court oral arguments in Rodriguez v. United States. Over time there has been an encroachment on our Fourth Amendment right against unreasonable searches, as Justice Sotomayor also said, “. . . we can’t keep bending the Fourth Amendment to the resources of law enforcement.” It is time for the courts to push back and protect our constitutional rights. Fortunately, two recent cases, one at the Supreme Court and another at the circuit level, have given great opportunities to do just this.
At the Supreme Court level, Rodriguez involved a defendant who was pulled over for a traffic offense, was given a ticket, and a whole eight minutes after the ticket a drug dog was brought in and alerted. The circuit court ruled that the dog sniff was only a de minimis intrusion into Rodriguez’s personal liberty and Rodriguez appealed.
While the circuit court believed eight minutes was simply a minor inconvenience, eight minutes of being wrongfully detained is eight minutes too long. For those that would like to experience just how long eight minutes truly is, I encourage you to watch this video. (Warning this video is extremely boring and should not be watched while operating heavy machinery)
During oral arguments the justices were rightly concerned that a dog sniff may become as common practice as officers asking for “license and registration.” Although they do not appear ready to take Florida v. Jardines further and declare a dog sniff of a car on a public highway a search, Justice Kagan did say that detainment after a traffic ticket is a search. Whether they declare this dog sniff a search or not, a majority of justices should be able to agree that detaining an individual an additional eight minutes after a traffic ticket is an unreasonable search.
The Fourth Circuit recently decided US v. Hill, where a defendant on supervised release was arrested on drug charges after a dog sniff was performed. There were two key conditions of his supervised release, that he had to notify officials of any move and his parole officer could make unannounced visits and confiscate contraband in clear view. Police suspected that he had moved so they got an arrest warrant. After arriving at the defendant’s new residence, they first did a walk through, they then called in a dog to do a sniff (the dog alerted multiple times), and they finally sought and received a search warrant.
The government claimed the defendant had a diminished expectation of privacy so only reasonable suspicion was necessary to search. The court shot down this theory, ruling the officers needed a search warrant to perform the walk though and dog sniff; thus, they were unlawful searches in violation of the Fourth Amendment. The lesson for law enforcement is clear: get a search warrant and then perform the search, do not search and then get a warrant to search.
The founders realized there was always a threat that government power and authority would be abused. This is why they demanded the Fourth Amendment, to make sure individuals were secure in their persons, houses, and eventually, cars.