A little over a year ago, this young attorney published a blog article that discussed how ole Floyd the Drug Sniffing Dog got smacked on the nose by Justice Ginsburg for violating some innocent drug dealer’s constitutional rights, in Rodriguez v. United States. Now that a year has gone by, I thought it would be interesting to reconnect with Floyd and see how courts in Ohio have applied his case to more recent decisions.
Prior to diving into other cases, let me give you a real quick background on Rodriguez v. United States.
A K-9 officer observed Rodriguez’s car drift over the shoulder line and then jerk back over to the roadway. Seeing an obvious moving violation, the officer stopped Rodriguez and proceeded with his traffic stop. Rodriguez explained that he jerked his vehicle to avoid a pothole.
The officer asks for Rodriguez’s license, registration, proof of insurance, and requests for Rodriguez to accompany him to his police cruiser. Being a seasoned alleged drug trafficker, Rodriguez declines the officer’s request and remains in his vehicle. Good news for Rodriguez is his record check comes back clean. But being diligent officer and staying true to his traffic mission, the officer asks for Rodriguez’s passenger’s information to run a records check. The passenger complies and the officer begins a record check back at his cruiser. And you won’t believe this….the passenger’s record comes back clean!
The officer then walks back to Rodriguez’s vehicle, and issues Rodriguez a warning for the moving violation. But knowing that something was not right and feeling his police sense tingle, the officer asked Rodriguez if his drug dog Floyd could walk around his car. Rodriguez declined this invitation and was subsequently ordered out of the vehicle. Floyd sniffed out a large bag of methamphetamine and the officer arrested Rodriguez for possession of illegal drugs.
Writing for the Court, Justice Ginsburg stated that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete the traffic stop mission.” In other words, a police officer cannot prolong a traffic stop just to perform a dog-sniffing drug search.
Justice Ginsburg states that an officer’s mission includes “ordinary inquiries incident to the traffic stop.” These inquires “involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. A dog sniff, however, “is a measure aimed at detecting evidence of ordinary wrong doing.” The Court eventually concludes with “the critical question then is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff prolongs the stop.”
To me, the above emphasized holding of Justice Ginsberg is the key to the Rodriguez opinion, and that is where I took my research to with other courts. Specifically, are courts sticking true to the holding in Rodriguez, or finding ways around it? I found that for the most part courts are applying Rodriguez as it is written, meaning looking at the overall time it takes for the stop and sniff to occur. Below, however, are some examples of courts making up their own rules (Gasp!!).
To begin, State v. Stevens, 2016-Ohio-5017, is an interesting case because the officer initiating the stop was also the K-9 officer which begs the question, can the officer conducting the stop ever deploy his dog without “impermissibly prolonging” a routine stop as is prohibited in Rodriguez?
The court explained that “Ohio courts have held that Rodriguez has no bearing when the canine sniff is conducted during the time period necessary to effectuate the original purpose of the traffic stop and prior to the completion of a written citation.” Citing State v. Reece, 1st Dist. 2015-Ohio-3638, State v. Davis, 9th Dist. 2015-Ohio-4218, State v. Mote, 3rd Dist. 2015-Ohio-3715
With that the court had to determine if the stop was impermissibly prolonged because the officer deployed the dog while he was supposed to be “completing the mission” of the traffic stop/investigation
The facts showed that the officer deployed the dog while investigating and before issuing a citation or warning, all within 8 minutes of the initial stop so the court found that the stop had not been prolonged and that the officer there was diligent in his actions
And addressing when the officer conducting the stop is also the K-9 handler the court stated:
“Further, if a canine handler can never deploy his canine without it being considered an impermissible ‘prolonging’ of the stop, then it is unclear when a canine handler can ever be the officer to initiate a stop and also utilize his canine, absent reasonable suspicion to do so.”
Based on State v. Stevens, it looks like you better not get stopped by a K-9 officer because according to the court, deploying the K-9 is a part of the K-9 officer’s mission!
In State v. Gurley, 2015-Ohio-5361, the court looked at the total time it took to conduct the stop and sniff. There, the officer made the stop and the K-9 unit was nearby. Upon the K-9 arriving, the drug dog alerted to the drugs and completed the sniff 5 minutes into the initial stop. The K-9 officer testified that it usually takes him 10-12 minutes to conduct a stop and issue a citation. Based on these facts, the court held that there was no Rodriguez violation.
However, compare Gurley with State v. Green, 2016-Ohio-4810. In Green, the court looked at overall time it took to conduct stop and sniff. The facts showed that officer made the stop and called for the K-9 unit. While waiting for the K-9 unit to arrive, the officer then issued a warning which took 1-2 minutes. The K-9 unit, however, didn’t arrive for another 10 minutes and then took several minutes to search and alert
The court held that the sniff wasn’t complete until 11-12 min after the warning was issued and the stop was therefore prolonged by 8-9 minutes since it only took the officer 1-2 min to write the warning. Thus, the court found Rodriguez violation and said evidence from sniff should be suppressed
So in Gurley, the officer testified his stops take between 10 to 12 minutes to complete. In Green, the total time was between 11 to 13 minutes! Two different appellate court districts with two very different opinions on what prolonging a stop means!
Lastly, as I have stated over and over again, DO NOT CONSENT TO A POLICE SEARCH. Another perfect example why is from State v. Davis, 2016-Ohio-3539.
In Davis, the officer gave a warning to the driver and told the driver/passengers they were “good to go.” But the officer then began to engage the driver and passengers in further conversation. During this conversation, the officer asked them if he could search the car and the driver and passengers consented! WHY! WHY! WHY!
The court held no Rodriguez violation there because the sniff was only done after the driver voluntarily consented. The court went on to explain that said driver should have known they were free to leave at any time because officer said you’re “good to go” so stop was over and they were able to leave. But instead they stayed of their own accord and voluntarily consented to the sniff. D’OH!!
As you can read, courts are still kind of mixed on how to apply Rodriguez. With that, please always remember to never consent to a police search or a search with a dog. The clock is running and if the clock goes to long…you may have a legal way out of your troubles!