A big win for personal liberty and the Bill of Rights EVAN BERNICK.
Any news that the Fourth Amendment is still being actively enforced by the courts is good news. At oral argument in Rodriguez v. United States, a case involving drug-sniffing dogs, Justice Sotomayor urged that if the arguments made by the Justice Department’s lawyer were accepted, the Fourth Amendment would become “a useless piece of paper.”
On Monday, in an engaged opinion written by Justice Ginsburg, the Supreme Court rejected those arguments and breathed some life into an essential check on government power.
The facts of the case: On March 27, 2012, Nebraska police officer Morgan Struble stopped Dennys Rodriguez for swerving once towards the shoulder of the road. After questioning Rodriguez and issuing him a written warning, Struble asked permission to walk his drug-sniffing dog around the outside of Rodriguez’s vehicle.
When Rodriguez refused, Struble made him exit the vehicle and wait for backup to arrive. Roughly eight minutes later, a second officer showed up, and Struble led his dog around the car. The dog gave an “alert” for illegal drugs, and a subsequent search turned up a bag of methamphetamine.
The Supreme Court held in Illinois v. Caballes (2005) that the use of drug-sniffing dogs during routine traffic stops does not violate the Fourth Amendment if the stop is not “prolonged beyond the time reasonably required to complete that mission.” In this case, however, the “mission” was already complete because Officer Struble had finished all of the inquiries and paperwork associated with the traffic stop itself.
The question for the Court was thus whether police can begin another mission — that is, an investigation not associated with the violation that occasioned the stop — without reasonable suspicion that the driver (or a passenger) has committed some separate offense.
At oral argument, the Justice Department’s lawyer, Ginger Anders, contended that the fact that the initial mission (writing Rodriguez up for crossing the white line) was complete should not preclude the officer from embarking on another mission. She added, “From the officer’s perspective, I think there’s an interest in officers having some leeway to sequence the stop.”
Such unwarranted “leeway” was not forthcoming.
In her opinion for the Court, Justice Ginsburg drew a principled distinction between “highway and officer safety” interests implicated by routine traffic stops and interests in “detect(ing) crime in general or drug trafficking in particular.” She determined that the dog sniff was not related to the former interests and, therefore, was not within the scope of the initial traffic stop.
Ginsburg summarized the government’s arguments thus: “(B)y completing all traffic-related tasks expeditiously, an officer can earn bonus time to pursue an unrelated criminal investigation.” But pursuit of the unrelated investigation, as Ginsburg explained, would be unreasonable if it were not supported by individualized suspicion because it would extend the seizure beyond the amount of “time reasonably required to complete (the stop’s) mission.”
The Fourth Amendment has not weathered the past half-century well. The Court’s embrace of balancing tests tied to “reasonable expectations” of privacy that “society” is “prepared to recognize as legitimate” has resulted in an an expanding zone of government intrusion.
Although the Fourth Amendment was designed to act as a bar against searches and seizures absent individualized suspicion, it has been construed to permit precisely such searches and seizures in the context of so-called “administrative inspections,” a broad category which encompasses inspections of buildings and workplaces, “administrative searches” of people and their possessions, and searches of businesses in “closely regulated” industries.
The Fourth Amendment’s decline has been abetted as well by the Court’s reflexive deference to law enforcement and its willingness to create doctrines out of whole cloth to ensure that police officers enjoy far more leeway than doctors, pilots, and others who routinely make life-or-death decisions under stressful conditions. The judicially-created doctrine of qualified immunity has effectively insulated police from liability for Fourth Amendment violations and ensured that victims bear the burden of their own injuries.
Monday’s decision, with its insistence upon individualized suspicion, is a welcome return to first principles. Public officials are our servants, not our masters, and they must be held accountable for the responsible exercise of the limited authority delegated to them. Any intrusion upon a person’s liberty without a rational, evidence-based justification is one that that the Constitution does not tolerate.
Justice Sotomayor’s criticism of the government at oral argument brought to mind the words of James Madison, who argued in Federalist 48 that mere “demarcation on parchment” of constitutional limits would be insufficient to secure liberty. InRodriguez, the Court adhered to its duty to give effect to those barriers.
Evan is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, a libertarian public interest law firm.