The U.S. Supreme Court heard arguments this week in a case involving the question of how long after a routine traffic stop can the police extend the stop in order to allow a drug sniffing dog to be brought onto the scene.
In this case, a driver was stopped after swerving late at night. He claimed he swerved to avoid a pothole, but that violation of failing to maintain his lane was what made the stop permissible under the Fourth Amendment. After the officer gave the man a warning, a dog was walked around the car and "alerted" to the presence of drugs. The driver was arrested for possession of methamphetamine.
The constitutional problem is a routine traffic stop would not entail a drug-sniffing dog, so once the traffic ticket was written, there was no longer any constitutional justification for the police holding the driver to conduct the dog sniff.
The Court's questioning suggests that they are struggling with what standard could be applied. The open-ended "totality of the circumstances," which could allow wildly different "reasonable" time limits, troubled some on the court, but attempting to create a specific duration for a traffic stop was equally problematical.
Whether an earlier case that allowed dog-sniffs during a traffic stops would permit the delay seen in this case, Justice Kagan suggested, "That's just not right." The problem in this case was the lack of reasonable suspicion after the traffic stop for further searches.
The danger with the totality argument is that the facts of particular stops can be such that allowing this standard could virtually swallow the reasonable suspicion and probable cause requirements.
Justice Breyer, however, suggested that the Court could use the existing standard that a stop, "cannot last longer than is necessary to effectuate the purpose of the stop."
Such a standard may lead to much litigation, as it leaves much open to interpretation.
Scotusblog.com, "Argument analysis: What exactly is a "routine" traffic stop, and should a suspicionless dog sniff be part of it?," Rory Little, January 22, 2015