Has the Supreme Court given law enforcement more leeway that the Constitution permits? Justice Sonia Sotomayor seems to think so. At oral argument in Rodriguez v. United States, a case involving the use of drug-sniffing dogs during traffic stops, Justice Sotomayor vigorously resisted the government's arguments and expressed a broad concern about the Court's deference to law enforcement in Fourth Amendment cases. Those who share her belief that neither the Fourth Amendment nor any other part of the Constitution ought to be reduced to "a useless piece of paper" should insist that the Court consistently hold those who enforce the law fully accountable to it.


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-snuffing 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." But in Rodriguez's case, the "mission" was completed-- the officer had let Rodriguez off with a warning. The question is whether an officer may detain someone and force them to wait for a canine sniff without reasonable suspicion or other lawful justification.


At oral argument, Justice Department lawyer Ginger Anders contended that there was no constitutionally significant distinction between trotting out a drug-sniffing dog during a stop and making someone wait for the dog after a completed stop, so long as the whole affair "falls within the amount of time it usually takes to do a routine traffic stop." On this reasoning, the fact that the initial mission (writing Rodriguez up for crossing the white line) was complete would not preclude the officer from embarking on another mission, with the aid of a drug-sniffing dog. Anders added, "[F]rom the officer's perspective, I think there's an interest in officers having some leeway to sequence the stop."


Several of the Justices appeared troubled by this reasoning. "The dog sniff is something else altogether," Chief Justice Roberts stated, and Justice Breyer agreed, saying, "Once [the traffic stop is] over, it's over, done, finished." Justice Kagan, for her part, suggested that Anders' arguments lacked any limiting principle: "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."


But Justice Sotomayor's forceful response stood out. Not only did she point out that signing off on dog sniffs that are extraneous to the mission of a given stop would create "an entitlement to search for drugs by using dogs, whenever anybody's stopped," but, responding to Anders' plea for leeway, she made a more profound point: "We can't keep bending the Fourth Amendment to the resources of law enforcement." Sotomayor may have been an alluding to Heien v. North Carolina, a 2014 case in which the Court (over Justice Sotomayor's strong dissent) held that a traffic stop based on a police officer's mistaken view of the law did not violate the Fourth Amendment because that mistake was "reasonable."


The Fourth Amendment is not the only context in which the Supreme Court has bent the Constitution to meet law enforcement needs. In Harlow v. Fitzgerald (1982), the Court invented the doctrine of "qualified immunity," which protects government officials from liability for constitutional injuries unless their conduct violates clearly established statutory or constitutional rights. You will not find this doctrine in constitutional text or history or any federal statute -- the Court simply made it up 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 Court has also enabled the expansion of civil asset forfeiture, which allows law enforcement to take property from citizens, regardless of whether the property owner is guilty or innocent--and without even charging the owner with a crime. The Court's lax treatment of a practice that is rooted in medieval superstition and which today serves primarily to pad law enforcement budgets has left law-abiding citizens vulnerable to policing for profit.


Americans expect and deserve a level playing field every time they seek justice in our courts. Our nation was founded on the principle that public officials possess only delegated (and therefore limited) powers, and they must be held accountable for the responsible exercise of those powers. Implementing that principle requires judicial engagement -- a genuine, fact-driven effort to determine the constitutionality of government action, without unwarranted deference to officials' supposed good faith and good judgment. Justice Sotomayor's fellow justices should heed her warning.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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