By Elizabeth Kruska
When the Supreme Court of the United States (SCOTUS) says, “Yeah, we remember that the Fourth Amendment is a thing” (and this does not happen very often), everybody sits up and takes notice. That’s what happened here. Ivan Alcide was charged with a drug offense in 2012 based on an investigation that grew out of a traffic stop. Motions were filed and litigated and appealed. While the case wound its way through the court system, SCOTUS issued an opinion in Rodriguez v. United States that cast this whole case in a different light.
So, let’s back up just a little bit to the state of the union on dog-sniff-related search and seizure before Rodriguez. Previously, under federal law, if a vehicle was stopped for a traffic offense and further investigation into other crimes was warranted, police could engage further. They could call for a drug dog to come sniff a vehicle as long as it didn’t unreasonably extend the interaction. Of course, there’s no hard and fast guideline about how long “reasonable” is, so courts would have to interpret this on a case by case basis. SCOTUS also had said that the sniff itself wasn’t a search. The question with sniffs is whether the time it would take to extend the interaction so that a sniff could be performed unlawfully extended the seizure.
Then Rodriguez came out. The clouds parted. Rays of light streamed down. Angels sang in chorus.
Well, maybe that’s a bit much, but it was a big deal. SCOTUS held that extending a traffic stop to do a dog sniff after the original reason for the traffic stop was resolved was an unconstitutional seizure. Yowza! Mr. Rodriguez was pulled over for driving on the shoulder, which is a traffic infraction. The arresting officer wrote Mr. Rodriguez a written warning. After giving that to him, the officer asked to let a dog sniff his car. Mr. Rodriguez refused. The officer ordered him out of his car and had the dog do a sniff anyway. The dog alerted to the presence of drugs, which later turned out to be a “big bag of methamphetamine” (I’d like to know how big. Like a garbage bag?), which led to Mr. Rodriguez’s arrest, indictment and ultimate fate, search and seizure-wise, being decided by the Notorious RBG.
Let’s turn back to Mr. Alcide. As I understand the facts, a police officer (Officer) saw Mr. Alcide driving in Montpelier. Officer knew Mr. Alcide’s license was suspended. He also had some unparticularized, rumor-like information from the ATF that Mr. Alcide was some kind of big drug dealer, although he didn’t know any more than that. Officer testified he was “always looking to make drug arrests” so he decided to effect a traffic stop on Mr. Alcide.
By this point, Mr. Alcide had pulled into a driveway. Officer happened to know whose house it was. He asked Mr. Alcide what was up, and Mr. Alcide told him he was looking for a woman’s house. Now, the opinion doesn’t use names, so this could get confusing. Let’s say he was looking for Woman A. Although Officer had never arrested Woman A for drugs or found drugs on her, he believed she was a drug user. As they say, the plot thickens.
Mr. Alcide sat in his car while Officer ran his information. Officer also called the ATF who said that Mr. Alcide was “on the front line of dealing drugs” in Vermont. Officer went back to Mr. Alcide’s car and told him he would mail him a ticket. You’d think we’d be done here. You’d be wrong.
Officer then asked if he could search the car and Mr. Alcide said no. Based on the opinion, there doesn’t seem to be any information at all that Mr. Alcide is doing anything with drugs at this point. There’s no overt evidence of drugs, no observation of drugs, no nothing. Officer then goes and gets his canine, which was in the cruiser with him at the time of the stop, and has the dog sniff the car. The dog alerts, the car gets seized, a warrant is issued, drugs are found, Mr. Alcide gets arrested, and here we are.
Mr. Alcide filed a motion to suppress evidence in his case because Officer unreasonably extended the scope of the search by deploying the canine after the reason for the traffic stop was finished. That is, that Mr. Alcide drove without a license, Officer investigated that, and told him he would mail him a ticket later. That should have ended the inquiry, but by bringing out the dog, the seizure was unconstitutionally extended. The trial court agreed with Mr. Alcide and granted his motion.
The State appealed. There’s some stuff in the opinion about whether or not the appeal was timely. SCOV ultimately decides it was. There was a little bit of an issue about what kind of appeal it could be and which rule to use; it’s interesting, but it’s not clouds-parting interesting, so I ask you to trust me that SCOV says the appeal was timely.
The State argued that the extension of Mr. Alcide’s traffic stop was de minimis at best. It was only extended seven or eight minutes, and that in the grand scheme of things, that’s not terribly intrusive. Heck, you could work in an ab workout in that amount of time.
Rodriguez was decided while SCOV was considering the appeal in this case. SCOV asked the parties to provide them with arguments about what, if anything, that opinion did to their positions. The State argued that the drugs in Mr. Alcide’s car would have been found anyway. They argued that Mr. Alcide would not have been able to drive the car away from the driveway because he had a suspended license. The opinion doesn’t say this, but I suppose the argument is that the car would have to have been left where it was since Mr. Alcide couldn’t drive it. This wouldn’t have been a further seizure on his person if the situation was that he had to leave the car and walk away. The car, I suppose, could then have been sniffed after Mr. Alcide walked away. The State would then be able to use that alert to apply for a warrant, search, find the drugs and ultimately make the same arrest. The testimony at the hearing was that when the dog sniffed, it alerted to the car, but not to Mr. Alcide. That would indicate that the drugs were in the vehicle, which wouldn’t have been able to have been moved by Mr. Alcide. The State argued that there’d have to be a causal nexus between the unlawful detention and the evidence seized.
SCOV doesn’t consider this because it wasn’t argued at the trial court level. The State argued that it was plain error for the trial court not to consider the causal nexus. SCOV agrees that would be the appropriate standard of review and that appellate courts have done that in the past, although that was more in the context of reviewing sentencing hearings. That’s allowed by federal procedure rules. That situation doesn’t apply here, so SCOV decides not to review for plain error.
SCOV also drops a bomb of a footnote to point out a few pretty relevant facts. First of all, Woman A, who Mr. Alcide was looking for, actually showed up at the driveway before the canine was deployed. Woman A and Mr. Alcide worked together, and Woman A had a valid license. She was allowed to drive Mr. Alcide’s car, and in fact, had driven his car in the past. Whether she could have driven the car away in the time between the issuance of the written warning and the dog being deployed is a bit of an open question (although I think there’s some caselaw to suggest that they could have left without being told they could; whether that’s a smart thing to do is a different question).
SCOV follows Rodriguez and affirms the trial court’s grant of Mr. Alcide’s motion.