Rodriguez v. U.S.
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Antonin Scalia, Sonia Sotomayor
Interviewee(s): Shannon P. O'Connor

John G. Roberts, Jr.: We'll hear argument next this morning in Case 139972, Rodriguez v. The United States.

Mr. O'Connor.

Shannon P. O'Connor: Mr. Chief Justice, and may it please the Court:

The big issue that starts in this case is whether, after completing the task related to a traffic stop, whether an officer without individualized suspicion can hold the driver for a dog sniff.

The specific question in this case is whether Officer Struble was entitled to piggyback an already completed traffic offense with probable cause on to that piggyback -- on to that traffic offense for an investigation of Mr. Rodriguez involving nothing more than a hunch.

That is the question of the case.

Ruth Bader Ginsburg: But that remains -- that wasn't reached by the court of appeals.

The district -- the district court, as you pointed out, rejected the argument that there was probable cause saying if nothing more than a hunch.

But that was not reviewed by the court of appeals.

So that would still be open.

Shannon P. O'Connor: The -- the decision of the court of appeals, Your Honor, absolutely, that was a de minimis ruling.

They did not reach the question as to whether there was reasonable suspicion, and left it just based on their ruling of -- of whether, in fact, this was a de minimis action.

John G. Roberts, Jr.: Counsel, do you concede that this would be all right if the dog sniff took place during the traffic stop?

In other words, let's say, there were, you know, two -- two policemen there already.

One says, I'm going to go write you a ticket and while that's taking place, the other policeman walks around with the dog.

No problem with that?

Shannon P. O'Connor: There'd be no problem, Mr. Chief Justice, if -- if, in fact, all of that was done before the traffic ticket was written.

If, in fact, the dog was written taken around the car prior to the completion of the traffic stop and the ticket, then, of course, it would be--

Sonia Sotomayor: All right.

Antonin Scalia: Mr. O'Connor -- Mr. O'Connor, it's frequent that a policeman, when he stops somebody for a broken taillight or whatever, will conduct some other inquiries, you know, where are you going?

Ask a lot of questions.

He will -- he will check whether the person is -- is driving a stolen car, whether -- whether the person is properly licensed.

All of that has nothing to do with the broken taillight and yet, that's permitted, right?

Shannon P. O'Connor: --Yes.

Yeah.

Antonin Scalia: Would it be permitted if he did it after he wrote the ticket?

Shannon P. O'Connor: It -- at that point in time, no, he -- he would not--

Antonin Scalia: Is that right?

He -- he can only do that before he writes the ticket.

Shannon P. O'Connor: --If assuming that--

Antonin Scalia: What if he's not giving a ticket, he's just going to give him a warning?

Shannon P. O'Connor: --When--

Antonin Scalia: And he says to the man, you shouldn't have done and you went a little bit over the line.

Be careful next time.

By the way, let me -- let me see your driver's license.

That would be bad.

Shannon P. O'Connor: --Yes, Your Honor, that would -- that would.

It would be because that would be part of the stop.

Antonin Scalia: So--

Shannon P. O'Connor: All -- all of those questions would be -- once the stop is finished, then he should be allowed to go no matter what the question was.

Samuel A. Alito, Jr.: Is it -- is it your argument that -- that as soon as all of the steps that must be taken in connection with the traffic stop are completed, then the the stop must end?

Or is it that nothing more can be done after the ticket is issued?

In other words, is it the length of time or is it the formal act of giving the ticket or the warning that -- that cuts things off?

Shannon P. O'Connor: Your Honor, it is the formal act.

Once the act of the traffic stop is done, which would be the reason, which would be the purpose for the stop, once that is done, that is the--

Anthony M. Kennedy: Yes.

But the -- the “ that ” is done is -- is not clear.

Two questions.

In Justice Scalia's hypothetical, the officer said, I'm not going to give you a ticket, but I just want to ask you a few questions.

It seems to me that under your argument, those questions are impermissible because he's made his decision, he's not going to give a ticket.

On the other hand, as Justice Alito indicated, suppose that he said, now, I finished your ticket, but before I give it to you, I'm going to go back to the police car and check to see if there are warrants, is that all right?

Shannon P. O'Connor: --If it is the completion of the--

Anthony M. Kennedy: He says, I've finished writing the ticket, I've folded my notebook, I'm going to give you this ticket.

But I'm first going to go back and see if my radio check has come in to verify your license plates.

Is that permitted?

Shannon P. O'Connor: --If it is the end of the traffic stop, it is not.

Sonia Sotomayor: But first of all--

Antonin Scalia: --But that's what he was asking.

Sonia Sotomayor: --these are hypotheticals that have a wrong presumption, okay?

There are certain tasks involved in giving a traffic ticket, correct?

Shannon P. O'Connor: Yes, Your Honor.

Yes.

Sonia Sotomayor: And those include checking for warrants, checking for tickets on the car, checking identity, asking questions about that, and generally with identity it also has to do with where are you going and where are you coming from.

Correct?

Shannon P. O'Connor: Yes, Your Honor.

Samuel A. Alito, Jr.: And conducting a dog sniff.

That also, right?

Sonia Sotomayor: I'm sorry?

John G. Roberts, Jr.: Justice Sotomayor.

Sonia Sotomayor: I didn't hear that.

My question for you -- and it can't be the formal act of writing the ticket.

It has to be the formal -- it has to be the acts related to the mission.

When you finish those, that's when the stop ends.

Shannon P. O'Connor: Yes, Your Honor, that is exactly right.

Sonia Sotomayor: Yes, but you've tied it to just writing it handing over the ticket, but or you're not even doing that, you're -- you're saying just writing the ticket, which is crazy.

Shannon P. O'Connor: If, in fact, that's -- that's the impression that I gave, that that is wrong.

It's not -- the formal handing of the ticket is when the stop is complete.

Once the justification for the stop and the purpose is complete, the ticket is done, whether it is a warning, whether it is handed to them, at some point in time the ticket is done and that's the investigation of the stop.

Antonin Scalia: Justice Sotomayor's question assumes, and you apparently embrace the assumption, that checking on whether you have a private -- a proper license, checking whether the car is stolen, all of these things are embraced within the mission when the only basis for the stop is you have a broken taillight.

How does that have anything to do with the broken taillight?

Shannon P. O'Connor: Those are things, Your Honor, that have been accepted as part of--

Antonin Scalia: I see.

Shannon P. O'Connor: --the process.

Antonin Scalia: Well, then maybe dog sniffing should be too, right?

Dog sniffing is accepted, so long as it's done before what?

Before completion of--

Shannon P. O'Connor: Before the completion of the mission.

Antonin Scalia: --Which includes not just a broken taillight, but also inquiring into your license, inquiring into prior arrests?

That's all part of the mission?

Shannon P. O'Connor: Yes, Your Honor, it is.

Antonin Scalia: Why don't you make the dog sniff part of the mission and that will solve the problem?

Shannon P. O'Connor: Well--

Antonin Scalia: Part of the mission where you stop somebody is not just the broken taillight, but, you know, whether the car is stolen, whether you have drugs on the car, so let's bring in a dog and do the car sniff.

I mean, you're willing to expand the mission to everything up to but not beyond the dog sniff.

Why do you do that?

Shannon P. O'Connor: --You expand the mission, Your Honor, for everything that comes within the tasks that are part of the traffic stop.

The dog sniff--

Antonin Scalia: It's a broken taillight.

That's the only thing that comes within the traffic stop.

All the rest is added on.

And you let them add it on.

Why do you let them add on the dog sniff?

You do so long as it occurs before the ticket is delivered; is that right?

Shannon P. O'Connor: --You do if it's done before the -- the traffic stop is done.

Ticket would not be a formal part of--

Anthony M. Kennedy: But you see the problem is how do you define the traffic stop, and you've already indicated the traffic stop can include some of the questioning.

You're really, I think, much better off if you stick with the formal rule.

Once you hand the ticket, that's the end of it.

Then you have a formal rule.

You're not arguing that, and that leaves us open to the question of why can't we include the dog sniff.

Shannon P. O'Connor: --Well, the dog sniff--

Sonia Sotomayor: It's a policy question.

So answer -- answer it as a policy question.

Don't tie it to the stop or not.

Tie it to something else.

Shannon P. O'Connor: --As a policy question, if you could end it with the handing of the ticket, that would be acceptable.

If we tie -- if we tie the traffic ticket as the end of the -- end of the justification for the stop, then we--

Samuel A. Alito, Jr.: If we hold that it's okay to have a dog sniff so long as it's before the ticket is issued, then every police officer other than those who are uninformed or incompetent will delay the handing over of the ticket until the dog sniff is completed.

So what has that -- what does that accomplish?

Shannon P. O'Connor: --Well--

Samuel A. Alito, Jr.: I mean, it's great for your client, but what does it do for the law?

Shannon P. O'Connor: --Your Honor, I think what it does first, if you have officers that -- that wait, if that's the -- if that's the question, Your Honor, if they wait for the pocket, put the ticket in the pocket for the dog--

Samuel A. Alito, Jr.: If we adopt a formal rule, that's one of -- one of the options, a formal rule, once you hand over the ticket, that's it, you can't do anything more.

The person has to be allowed to go.

All right?

Is that your argument or not?

Shannon P. O'Connor: --Yes.

Yes, it is.

Samuel A. Alito, Jr.: That is your argument.

Shannon P. O'Connor: Yes.

Samuel A. Alito, Jr.: Then what does it accomplish?

Shannon P. O'Connor: What it accomplishes is the -- is the enforcement of the Fourth Amendment.

Once the stop is done, once the purpose is done, the justification is done, the person should be free to go.

Ruth Bader Ginsburg: But the question is, is this -- is this very -- the easiest thing to get around by simply saying, would the sequence in which I will do this, I won't think of issuing the ticket until I've had the dog sniff?

So that's the problem.

And what are you accomplishing?

Say, we make we make the handing over the ticket the end of the legitimate stop.

Antonin Scalia: Yes.

Ruth Bader Ginsburg: Well, then the police can just say, I'm going to defer that a few minutes until the dog sniff occurs.

It just seems that you're not going to accomplish any protection for individuals if that's your position, that -- that it was just a question of when you do it.

So if you do it during the stop, before the ticket issued, it's okay and if you do it two minutes after, it's not okay.

Shannon P. O'Connor: Your Honor, it is -- it is okay when the traffic stop is done.

When the mission is complete--

Antonin Scalia: You can't possibly mean that.

Shannon P. O'Connor: --Oh, yes, sir, I do.

Antonin Scalia: The stopping officer says, I'm done, I got my ticket here.

It's all written out.

However, before I give it to you, I want to have a dog sniff, I'm going to call in to headquarters.

They're going to send out a dog.

It's going to take maybe 45 minutes.

You just sit there because the traffic stop is not -- is not terminated until I give you your ticket.

You're going to allow that?

Shannon P. O'Connor: Well, again, if I -- if -- the formal -- the formal handing of the ticket is not the end, in your example, Your Honor?

Antonin Scalia: In my example, he hasn't turned over the ticket yet.

He says, I'm -- I'm not going to give you the ticket until the dog comes and that's going to take 45 minutes, and that's okay.

Shannon P. O'Connor: No, the traffic stop is done.

Whether he hands the ticket to him at that point in time, if the only reason--

Antonin Scalia: He has not handed the ticket over.

He's -- he's kept the ticket.

Shannon P. O'Connor: --And the reason that he has kept the ticket is for the dog to come.

Antonin Scalia: Yeah.

Shannon P. O'Connor: And -- but that is past the -- that is past the traffic stop.

The traffic stop done--

Antonin Scalia: So you're not -- you're not applying a formal test.

I thought you were saying it's a formal test when you deliver the ticket is the termination point, but it -- that's not right.

Shannon P. O'Connor: --No, that's -- no.

Antonin Scalia: All right.

Shannon P. O'Connor: The formal test--

Antonin Scalia: So what is the test?

Shannon P. O'Connor: --The formal test--

Antonin Scalia: How long a normal traffic stop would take?

Shannon P. O'Connor: --The formal test no, your Honor, that would not be the case at all.

The formal test is when the mission has been accomplished.

If you pull someone over for the traffic offense, and if, in fact, you do all of the tasks that are necessary to complete it, when it is completed, it is done.

John G. Roberts, Jr.: What if the officer says, I need to think about this for a while?

Shannon P. O'Connor: Who?

John G. Roberts, Jr.: What if the officer says -- says, I need to think about this for a while?

Shannon P. O'Connor: Well, whose--

John G. Roberts, Jr.: The officer says, I need to think about this for a while.

I'm going to go back and I'm going to ponder how long it took you.

I'm going to think about other tickets I've given in the past, and, you know, the dogs are going to be here in 8 minutes.

I think I need about 10 minutes to think about it.

Is that -- is that okay, since he has not -- he hasn't written a ticket?

He waits, you know, until he's thought about it for a while to write the ticket.

Shannon P. O'Connor: --No, your Honor, that's -- that's not okay at all.

If -- what has to happen is the officer must be diligent.

He must be diligent going towards the investigation of the traffic stop.

And, again, I think we're putting -- and if I'm the one that started the miss -- misleading of this, I apologize.

Handing of the ticket is not the end-all.

Handing of the ticket is when the tasks are done.

I got pulled over for a driving offense, then it -- it -- then it is over.

In your example, Mr. Chief Justice, if he's pondering, then he's not being diligent.

If he's pondering, you're not being diligent, then that's when--

Antonin Scalia: Gee, we ponder all the time, and we think we're being diligent.

[Laughter]

Pondering is not diligent.

Shannon P. O'Connor: --Unless the pondering is to avoid the diligence, and that would be the question.

The question, then, is if -- if, in fact, the officer is pocketing the ticket, he said, I'm going to wait until the dog comes, you are then extending the time of the stop; and it violates the rule that you have in the laws.

Sonia Sotomayor: You know, it really looks--

John G. Roberts, Jr.: You may have answered this already, but I'm not sure.

Can he ask for the registration?

Usually, people have told me, when you're stopped, the officer says, License and registration.

[Laughter]

Is that okay?

Shannon P. O'Connor: I've had -- I've had friends that say -- say the same thing, Mr. Chief Justice.

Of course that's okay.

John G. Roberts, Jr.: What about the registration is pertinent to the traffic stop?

Shannon P. O'Connor: Well, what's pertinent about it is, part of the traffic stop is the vehicle itself as well.

Not only do you have the driver, but you're looking at the driver, the driver's history, the car.

All of those things are part and parcel to the--

John G. Roberts, Jr.: If you saw -- if you saw--

Shannon P. O'Connor: --task towards the offense.

John G. Roberts, Jr.: --If you saw the car swerve, what does that have to do with the car?

The car was just doing what the driver did.

And I don't see why you need the registration of the car.

Shannon P. O'Connor: What you can do -- no, Your Honor, I think -- Mr. Chief Justice, I think you do.

I think that is part of investigating the -- the -- traffic offense.

Those are things that have been accepted -- and “ accepted ” might -- might -- might not be the right word -- adopted as things that you can do in a traffic stop.

Now, there are certainly times when you go beyond the traffic stop.

And you have the Johnson case.

If, in fact, you go beyond the -- the -- the traffic stop even measurably beyond it, then you have violated the -- the -- the driver's rights, and it is unconstitutional.

The question in that case occurred during the traffic stop.

Ruth Bader Ginsburg: Mr. O'Connor, is this particular traffic violation, was that an arrestable offense?

Shannon P. O'Connor: No.

Under Nebraska law, no, Your Honor, it was not.

Ruth Bader Ginsburg: It was not.

Shannon P. O'Connor: It's a traffic infraction.

Ruth Bader Ginsburg: Because if it was an arrestable offense, they could arrest the driver and then impound the car and do an inventory search.

Shannon P. O'Connor: If it was an arrestable offense, yes, Your Honor, I think that's correct.

Ruth Bader Ginsburg: But you say it's not an arrestable offense.

Shannon P. O'Connor: It is not.

And regardless, I mean, he was -- see, here's the -- here's the -- what we do know about this case: Not only do we know the mission is done because of the tasks that were completed, you have the officer that says, I've done the tasks, everything that needs to be done with this offense or with this -- with this traffic stop is finished.

It's finished.

There's no question about that.

Then there's no more justification.

In order for the driver to be continued to be detained, there must be new justification or consent, which you did not get in this case; but you must let the driver go because you are acting in, you are finished with the traffic stop, you are finished with the reason that he was detained in the first place, the purpose: Going across the fog line.

Sonia Sotomayor: --Can I just ask you a simple question?

Yes, we've permitted a dog search; but in the cases that we have, Caballes and others, it was done simultaneous with the traffic stop.

Correct?

Shannon P. O'Connor: Correct.

Sonia Sotomayor: You said in your brief: A dog sniff is not a police entitlement to which the Fourth Amendment limits must bend.

Is there a line that we should draw at how long citizens should be kept by the side of the road?

Shannon P. O'Connor: I think that the--

Sonia Sotomayor: All right.

So announce what that line is.

That's what I think everybody's been asking you.

Shannon P. O'Connor: --The line is when -- I can -- I can start off with -- with, perhaps, the Johnson case again.

When the stop is basically -- when the stop is done--

Sonia Sotomayor: Why don't you just do a simple test?

Shannon P. O'Connor: --I can give you--

Sonia Sotomayor: If you're going to do a -- if you're going to do a stop, you can't reasonably extend or pass the time it takes to deal with a ticket, correct?

Shannon P. O'Connor: --I think that--

Sonia Sotomayor: That would be the simple rule.

Shannon P. O'Connor: --I think that the simple rule, if I -- if I may propose one, is the same one that Professor LaFave has -- has proposed about a traffic stop or a simple stop.

Basically what you do is the officer sees the infraction; the officer pulls the person over; the officer tells the person what the infraction is; he does the license; he does the registration, runs the car.

Then when it's done, he gives him the ticket, the warning ticket.

That is the end of the traffic stop.

There's no other reason to hold the person after that point in time.

Anthony M. Kennedy: You say he “ runs the car ”.

He puts the license plate into the radio and waits for the report from the station as to whether or not the license is okay?

Shannon P. O'Connor: Yes, Your Honor.

Samuel A. Alito, Jr.: Why is that part of the mission and the dog sniff is not?

That's the question.

If you're not going to have a formal rule, you have to explain why -- somebody's pulled over for a broken taillight, why the -- adding any time to the stop in order to do a records check is part of the mission but the dog sniff is not.

I mean, I could understand the rule, you pull somebody over for a broken taillight, maybe you get the registration to make sure you write out the ticket to the right person.

Then you give him the ticket, and that's it.

No -- no time for the records check.

What does the records check have to do with pulling somebody over for a broken taillight?

I can understand that, but is that your argument?

Shannon P. O'Connor: Well, if that is -- that is part of what the courts have accepted as part of the stop.

You are looking at the vehicle itself.

Now, the dog, Your Honor, is different.

The dog is different because the dog is not a task related -- what the courts have accepted as related to a traffic stop.

It is a collateral offense -- or a collateral event where you have the dog sniff and do nothing more than look for drugs, any nothing more than that.

Samuel A. Alito, Jr.: I mean, your answer is -- I don't want to interrupt.

Your answer is that the courts have accepted that you can go -- you can prolong this a little bit to do a records check.

But then you have to explain why the dog sniff is different.

Shannon P. O'Connor: You're not prolonging it, Your Honor, to do a records check.

That is part of the stop.

As long as the person, the officer, is diligently working towards the mission--

Ruth Bader Ginsburg: Why -- why is it part?

As the question he has suggested, it's unrelated to the traffic stop.

You're looking to see if this person has a record, committed other crimes, for example.

What has that got to do with whatever the traffic--

Shannon P. O'Connor: --No.

Ruth Bader Ginsburg: --infraction is?

Not stopping at a stop sign, what has checking to see if the defendant has a criminal record got to do with that?

Shannon P. O'Connor: That is something that the -- that the courts are looking at as to whether that is something that you should be able to do.

The courts have generally accepted that.

What I can come back, and in this particular case is not something that happened in this case, because it is clearcut.

Now, that issue is extremely important, but is something that I don't think can be done today.

John G. Roberts, Jr.: He can -- I mean, one reason I think they do the records check, the officer needs to know who he's dealing with.

I think one of the higher incidences of when officers are shot or wounded is when they make a traffic stop.

So if you run the registration, you see it's a stolen car, you need to know that before you go back and deal with the driver and other occupants.

What if the police officer determines that he's -- he's concerned about that, either as a general matter or as a specific matter.

He takes the license and registration, but he's not going to go back to the car until he has backup.

Okay?

So he calls ahead and said, I would -- you know, I would like backup.

And the person says, you know, it's going to take 25 minutes, and he says, fine.

Is that a legitimate reason?

The traffic stop isn't over, because he's -- he doesn't want to go back because he's alone and he doesn't know who these guys are.

Shannon P. O'Connor: That is a legitimate reason.

John G. Roberts, Jr.: So he can call back.

Now -- now, okay, what if the backup is a canine unit?

The canine unit gets there, you've told us it hasn't been prolonged, and as the officer goes up to give him the warning the dog walks around the car.

Is that all right?

Shannon P. O'Connor: I think that that is all right.

And the reason that it's all right is because you have the diligence of the officer.

Officer safety is certainly a reason to ask for backup.

Once the backup is there, the officer then completes the traffic offense, everything is done, and before that, the dog has run around, I don't think that there is a problem with that, because the delay was for a legitimate reason, not putting the ticket in -- in your pocket.

If there are no further questions, I will request the remaining for rebuttal.

John G. Roberts, Jr.: Thank you.

Thank you, counsel.

Ms. Anders.

Sonia Sotomayor: How long is reasonable?

You keep saying in your in your papers you have to look at the totality of the circumstances, but I don't know what that means.

I think that keeping me most of the time, and Chief, I've been stopped -- keeping me past--

Sonia Sotomayor: --Keeping me past giving me the ticket is annoying as heck whether it's 5 minutes, 10 minutes, 45.

But how do you define de minimis?

What are the circumstances that would make any difference be -- in holding somebody 5 minutes or 45?

It all has to do with your needs, not the passenger's needs.

Sonia Sotomayor: To accomplish what?

Break into -- go into their home and search their home?

Is that okay?

Antonin Scalia: What's the heartland of routine traffic stops?

You have a minute criteria?

What is it, half an hour?

Antonin Scalia: What is it?

I want to know what it is so I can complain when it's longer.

[Laughter]

Antonin Scalia: How many minutes when there are three people in the car?

Antonin Scalia: I mean, you've got to pick a minute.

Don't you have to pick a minute sooner or later to decide these cases?

Antonin Scalia: And pick a minute.

Antonin Scalia: What more do you need?

There are three people in the car and he's stopped for a broken taillight.

Stephen G. Breyer: The problem -- I have a great idea.

Why don't we say, taking your test, that the stop, you can you can do it, you know, whatever is normal there, but it cannot be prolonged more than the time reasonably required to complete the mission, which happens to be giving a temporary -- a traffic ticket.

Or we could say it cannot last longer than is necessary to effectuate the purpose of the stop.

What an original idea I had.

It happens to be language from two cases that we've already said.

And are you saying anything different?

I don't think so.

If so, what?

And if not -- since this is a case where apparently the lower courts have said it did last longer than was reasonably necessary because the policeman said, that's why I -- I mean, in effect said, according to the judge -- Hey, I called the dog after the stop was over, or something like that -- we cite those two cases, say those are the tests.

Affirm -- or reverse, I guess; QED.

Goodbye, we say, to all the litigants, and hope that you are happy.

Now, when -- when -- when I hear you say that it sound -- what you've said sounds -- sounds that's what you think we should do.

Stephen G. Breyer: But I suspect you don't, but I want to know why.

Stephen G. Breyer: It is the time necessary to effectuate the purpose of the stop or it is the time that is reasonably required to complete the mission.

We can't do better than that.

How can we?

We are not traffic policemen, and our experience on stops comes from, unfortunately, being the stoppee rather than the stopper.

Stephen G. Breyer: Yeah.

Stephen G. Breyer: Of course, if it's in the middle of it, you call the dog and so forth, but you can't prolong it beyond the time reasonably necessary.

Now, I've said that several times.

I think you may agree with that.

Stephen G. Breyer: And then if you do agree with it, here, it was prolonged more than reasonably necessary -- at least that's what they found -- end of case.

Now--

Stephen G. Breyer: --Yeah, that's right--

Stephen G. Breyer: --There are a lot of problems--

Stephen G. Breyer: --There are a lot of problems with any rule based on reasonableness, and, of course, there will be difficult problems.

But here we've said twice that once the stop is over, i.e., goes beyond the time reasonably necessary to complete the mission, you cannot call in the dogs; and before, you can.

Now, of course there will be anomalies in that respect.

Of course there can be bad-faith exercises.

Of course there can be confusion as to which is which.

But that's inevitable in the situation and we can't do anything about it.

Now, what can you suggest that would just help us and show we could do something about it?

Stephen G. Breyer: Well, it may be--

Stephen G. Breyer: --but I'm asking you what -- what is it that we could say better than the language of the two cases?

I mean, I'm not -- I'm not denying there is a problem with what you just said; there is.

You might do it -- decide to do this beforehand and do all kinds of excuses.

You know, people every day of the week make up reasons, they go about -- but if you want a better rule than the one laid down in the two cases, what?

Stephen G. Breyer: No, I don't think you have to do that.

I mean, you know, you get into arguments about it; was it reasonably necessary or not?

It's the cannot be prolonged beyond the time what is reasonably necessary.

It is difficult sometimes--

Stephen G. Breyer: --to decide what is reasonably necessary.

Elena Kagan: Can I just--

Elena Kagan: --Could I just get a little clarification on your argument?

If I understand what you've been saying, you are accepting the idea, aren't you, that the dog sniff is something that's extraneous to the mission of the stop; is that correct?

Elena Kagan: It's not an ordinary incident.

Elena Kagan: Wait, I'm not getting there yet.

I just want to understand -- because that's not what the questions are focused on, like, what is a stop?

What's the mission of the stop?

What's entailed in a normal stop?

And you're not contesting that a dog sniff is not something that's entailed in a normal stop even though there might be occasions where you can do a dog sniff attendant to a stop.

Stephen G. Breyer: What about--

Antonin Scalia: Suppose you have a police department that -- it's in a small state, they have -- every -- every police cruiser has a -- has a canine, and they make it just -- just as common to, you know, to check on the -- the license plate, call in to see if a person has any -- any prior convictions.

So, also, they always take the dog around the car.

Antonin Scalia: It's a routine part of -- of a traffic stop.

Antonin Scalia: Including the time for the dog sniff.

Antonin Scalia: Ah.

Antonin Scalia: Why not?

Antonin Scalia: That -- that's what a routine traffic stop is for that jurisdiction.

Stephen G. Breyer: --Okay.

But that's where -- I thought that position that I've tried to -- let me state it more clearly, I think.

It is unlawful to have the dog sniff where the dog sniff unreasonably prolongs the stop, is that -- does -- is that okay if I write -- with the government -- if I write those words in an opinion?

Stephen G. Breyer: Ah.

Well, how -- if the ticket-writing is over and there is nothing else to do and the policeman says, hey, this is over, at that point has it not unreasonably prolonged the stop if the sniff takes place afterwards?

Stephen G. Breyer: Because?

Antonin Scalia: Because that takes only two minutes and that's not unreasonable, right?

Antonin Scalia: Big deal.

The dog walks around the car for two minutes.

That's--

John G. Roberts, Jr.: It's only a violation of the Fourth Amendment for two minutes, right?

[Laughter]

I mean, the reason I don't understand -- I don't understand when you're talking about prolonging the stop, are you talking about here's the amount of time that you are -- needed for the traffic stop and you're allowed to prolong it sometime after that?

Or is it that the -- the sniff is part of the time for the stop so you're not prolonging it at all?

You're including it, you're wrapping it up in the stop.

Antonin Scalia: --It can prolong it a little bit.

Ruth Bader Ginsburg: And what else -- what else besides -- we have the extraneous dog sniff.

It doesn't relate to the traffic violation.

What else?

Could -- could the police say, I've taken the time I've needed to look into this traffic violation, but we're in a high crime neighborhood, so I'd like to keep this driver a bit longer so I can just interrogate him about what other things he might have been doing.

And it's not going to take -- it's only going to take eight minutes.

But traffic stop, you've taken care of that.

And now instead of having the dog come, the police officer says, I have a few questions I want to ask you.

Ruth Bader Ginsburg: So you say that--

Stephen G. Breyer: Well, wait.

Now, what about this?

See, I see your problem is, you said, well, it can't prolong the stop, the traffic stop more than reasonably -- you know, it has to be -- take the time reasonably required to complete the mission.

That's what it says, complete the mission.

So we have the intermission prolongation, which has to be reasonable, and we have complete the mission.

So complete the mission.

Once the mission's completed, it's over.

That's language from the opinion, too.

Complete, complete.

Good-bye.

Over.

At that point it becomes a violation of the Fourth Amendment.

Sonia Sotomayor: Well, I have a -- I have a real fundamental question, because this line drawing is only here because we've now created a Fourth Amendment entitlement to search for drugs by using dogs, whenever anybody's stopped.

Because that's what you're proposing.

And is that really what the Fourth Amendment should permit?

Sonia Sotomayor: Well, in some circumstances.

So why don't -- why don't we keep it cabin to Caballes, which is when it's being done simultaneous with writing the ticket.

If it's not, then it's unlawful.

Sonia Sotomayor: It's not arbitrary.

The Fourth Amendment is arbitrary by its nature.

It says you can't search unless you have probable cause to search.

Elena Kagan: Ms. Anders -- I'm sorry.

Please.

Elena Kagan: You know, I -- I think I read Caballes differently than you.

Here's what I think agrees with you on and here's what I think Caballes doesn't.

Caballes definitely agrees with you on that a dog sniff is not part of the traffic stop.

So I think that you and Caballes are definitely in the same place there.

And Caballes definitely says that even though a dog sniff is not part of the mission of the traffic stop, we're going to allow a dog sniff if the dog sniff doesn't extend the traffic stop.

It's like, you know, there are two officers or there's some other reason why you're not being detained a moment longer because of the dog sniff and Caballes basically says, sure, no harm, no foul on that one, right?

But then you're saying Caballes gives you this extra leeway to detain people even though it is longer than an ordinary traffic stop would take, and I think that's just not right.

I mean, I think that reasonableness language in Caballes is all about -- it's an extra limitation the Court says.

It says, like, don't think just because this officer was really slow and it took a really long time to do the traffic stop, and he was able because of that to get another officer in and do a dog sniff and it was all with -- it's like an additional limitation that, no, you have to be diligent and you have to be reasonable in the way you conduct the traffic stop.

And if you're not, the dog sniff can't come in even though it was conducted during the time the traffic stop occurred.

But it -- that's -- that's an additional constraint.

It's not some kind of extra leeway for the police officers to do things outside the bounds of the traffic stop itself.

Elena Kagan: It is not a search, but the -- but the theory of Caballes and of all of our questions is that you can't -- and of all of our cases -- is that you really can't detain somebody if you don't have some kind of objective reasonable basis for doing so.

And that any detention -- and, you know, it might be ten minutes or it might be five minutes or it might be two minutes -- without that kind of basis is a Fourth Amendment violation.

John G. Roberts, Jr.: You say -- you've said several times the phrase “ incremental ”.

My -- I sense that it being less than, right?

I mean, if the actual traffic stop is 5 minutes, then you wouldn't say a 15-minute dog sniff is incremental.

So doesn't the dog sniff have to be less than the traffic stop?

John G. Roberts, Jr.: Is that almost always the case, that the dog sniff is going to take longer than the traffic stop?

I mean, I would assume so.

The officer says license and registration, goes back, checks, comes back and gives you the ticket.

The dog sniff is something else altogether.

Assuming the dog is there, they've got to get -- you know, walk around the car.

If you're -- if it really has to be incremental, I'm not sure -- it's hardly ever going to be reasonable.

John G. Roberts, Jr.: If the dog happens to be there, I guess.

Stephen G. Breyer: Well, I see that.

What about -- another aspect is I was seeing it the way Justice Kagan described it.

And one virtue of that, now, but you may not think it does work, is administrative.

What do you tell the police department?

Say, well, when you're in traffic stops can you use dogs to sniff?

Yeah, you can.

But remember, once it's over, the traffic stop, it's over, done, finished.

And by the way, if it isn't over yet, you still well may get into trouble if you've unreasonably prolonged the stop just to get the sniff.

Now, that seems pretty easy to explain.

It's fairly brightline.

And as soon as you get into this other -- you know, just leaving it totally open, there's no check, really, on the -- on the or not too much of one.

What -- you -- now, I'm putting that to you to get your response.

Stephen G. Breyer: No, I was saying two parts.

Part one, traffic stoppers, you can use a dog sniff when you stop, but not once the stop is over, period, unless you have cause or something.

And during the stop, that's part two, you can't prolong it but for a reason.

You have to do it all within a reasonable time, okay?

You can't unreasonably prolong it to get your dog in.

See?

You tell them those two things.

Once you've told them the two things, they've got it in their heads.

When this is over, goodbye dog.

Stephen G. Breyer: When it's not over, they better be careful not to unreasonably prolong it.

Now, they'll understand that, and it will be both protecting what the Fourth Amendment protects and also, I think, giving them enough leeway to conduct a traffic stop.

Sonia Sotomayor: But the way Justice Breyer has said this -- what he's saying is you can't unreasonably prolong.

You can't hold a person any -- any measurable time that would allow to get the dog.

And, yes, it has to do with the resources of the police department, but we can't keep bending the Fourth Amendment to the resources of law enforcement.

Particularly when this stop is not -- is not incidental to the purpose of the stop.

It's purely to help the police get more criminals, yes.

But then the Fourth Amendment becomes a useless piece of paper.

Antonin Scalia: I didn't understand--

Stephen G. Breyer: I think if I take what I said and take your answer, I have to say your answer is right.

It's just a bad effect of my rule.

And -- and the virtue of the, you know, the two-part rule is what we said was the virtue of it.

And it's like in many cases; there just isn't much more to say.

You have to say, am I willing to run this -- they might purposely change the sequence.

They might, that's true.

Somebody might.

And I don't know what to do about that.

The answer is I couldn't do anything about it.

Sonia Sotomayor: Well, he said--

Elena Kagan: Suppose, Ms. Anders, that -- it's a hypothetical -- police pulls somebody over and starts the process and then the police officer says, you know, I'd like a cigarette break now?

A cigarette probably takes about as long as the dog sniff took in this -- and just, you know, smokes a cigarette and he goes back to work.

All right?

Would you say that that was unconstitutional prolongation of the stop.

Elena Kagan: Okay.

Elena Kagan: So it would become unreasonable because there he was, he wasn't doing anything related to the mission of the stop.

That's true if he gave the ticket and then said, I want you to stay while I take a cigarette break, or it's true if he did it before he gave the ticket, either way.

I guess what I'm saying to you is I kind of think it's the same thing, is that once you've acknowledge that the dog sniff is something that's extraneous to the stop itself -- it's obviously more helpful to the police than a cigarette break -- but it's extraneous to the stop itself -- then the same rules apply as if the police officer had just taken a moratorium on the stop in the middle in order to conduct his own business.

Elena Kagan: But then 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.

And I never thought that that was the rule.

I always thought is that once the objective basis -- you know, for the stop, dissipated, that was it.

Ruth Bader Ginsburg: --You told me the officer could do that.

At least that's what I understood your answer to be.

Elena Kagan: But what your -- where your rule is going to lead to, Ms. Anders, is something along the lines of, like, everybody will decide 30 minutes or 40 minutes, I think you say at one point in your brief, is reasonable for a traffic stop.

And if you see a taillight violation, that's 40 minutes of free time for the police officers to investigate any crimes that they want, because they can do it all in the range of what you've decided is kind of the reasonable traffic stop.

John G. Roberts, Jr.: Thank you, Ms. Anders.

Mr. O'Connor, you have six minutes left.

Shannon P. O'Connor: Thank you.

Justice Breyer was much better than I said it.

I think the point was well made.

Stephen G. Breyer: Well, then, what do you think about her response?

Because I thought it was -- I mean, she has an interesting point -- I mean, an important point.

She said, you know, the trouble with what I said which of course you think is okay -- she said it's -- it's -- here's what's really going to happen, is that the police will -- will think: Gee, I just better be sure those dogs get here in time, and so what they'll do is tend to prolong the stops, and they'll want to be sure the dogs get there.

And so if you really added all this up and thought about it, even experimentally, the class of stopped drivers where there are hunches is going to end up waiting longer and being in custody, in a sense, longer than if we follow her approach.

And her approach is just to say: Hey, apply reasonableness across the board; a few extra minutes isn't that big a deal.

I took her answer to be something like that and I thought it was, and it's a point.

It's a -- it's a point.

So what do you think?

Shannon P. O'Connor: Well, we hope that if you look at officers' diligence there are things that will help enforce that.

One is the community.

Will the community start to accept 40-minute stops?

Will the law enforcement officer himself expect that, I'm going to stop being a police officer for 2, 3, 4 minutes when there's other things going on?

I think that's very, very, very significant.

Reasonableness -- reasonableness stops when you have the stop end.

At that point in time, reasonableness has nothing more to do with it because the person should be released until there is another reason, another purpose for the stop, a reasonable articulable suspicion, or you have consent.

Otherwise, it is done.

Here's the problem with the reasonableness.

There was the -- the statement that was made that it's not reasonable, doesn't give the officers enough time.

We're not talking about the Fourth Amendment and the officers and open season on the officers and what the officers can do.

We're talking about the Fourth Amendment and the protections that it has on the driver.

You don't look at, well, it's only going to be a minute longer if you do it this way.

The Fourth Amendment shuts it off when it is done.

Samuel A. Alito, Jr.: What do you say about the questioning that took place in this case?

Where are you going?

Are you going to buy a car someplace?

All of that, was that -- is that part of the mission?

Shannon P. O'Connor: We didn't raise that, Your Honor.

Is that part of -- of the mission?

It is something that hasn't been -- that hasn't been challenged.

It has been accepted as being part of the mission.

I will tell you that's what the courts say, that it has been accepted as part of the mission.

The -- I have lots of questions before as to what is part of the mission and how far you go.

That's for the courts to -- to determine.

My response, Your Honor--

Samuel A. Alito, Jr.: Well, one of those courts is this Court and what -- that's what I don't understand about your position, is the definition of the mission.

I don't understand -- I can understand a definition that says, just what you need to do to resolve the traffic violation, period.

But if it includes other things like questioning about where are you going to buy a car and all of that or doing a records check, then I really don't see why.

I want -- I want to know what the difference is between that and having a dog -- a dog sniff.

Shannon P. O'Connor: --Well, the other -- the other things that are tasked in part of the traffic offense where there is no doubt -- and that could be questionable -- but there's no doubt that a dog sniff is not part of the offense.

That's collateral and it's nothing but an -- an investigation.

Now, the other -- the last thing that -- that I would like to do, Justice Ginsburg, is an -- answer your question as to the Eighth Circuit, and the Eighth Circuit did not make a decision as to the probable cause.

But you do have a court that did.

The trial level court did make that decision.

It made the decision that it was probable cause.

Ruth Bader Ginsburg: It was only a hunch, but that would ordinarily be reviewable by the court of appeals.

The court of appeals didn't get to it, so it's an open question for the court of appeals.

Shannon P. O'Connor: If it can go to the court of appeals, but this is -- I mean, you have the question that it was based on a hunch, but you give the discretion to the magistrate who heard the evidence.

And the magistrate had a question as to the credibility of this witness, and if you have a question as to the credibility of the witness then there is not sufficient facts to able to make a determination as to whether in fact there is probable cause.

We would ask the Court to adopt the finding that there is no probable cause.

That is something that you can do as a reviewing court, because the facts have been established.

We know that the -- that the judge had problems with the credibility of the witness.

The facts that are left is not enough to -- to establish any type of reasonable suspicion.

What we do for judicial economy is you make the decision here, now, because the Eighth Circuit would have to do the same thing.

The Eighth Circuit would have to make a decision based on the magistrate's finding of lack of -- of credibility, and that's what I would ask the Court to do today.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.