Does the five-second rule apply to extending a traffic stop to permit a dog sniff?
Courts may be open to some truly minimal “negligibly burdensome” delay
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United States v. Hayes, 2023 WL 2542654 (10th Cir. 2023)
Everybody knows it’s okay to pick up food after it has been dropped on the floor and exposed to germs and methylethylbadstuff – as long as it’s picked up within five seconds. I read it on the Internet.
Once upon a time, Jillian Clarke, who was a student at the Chicago High School for Agricultural Sciences, noted that the five-second rule dates back to the time of Genghis Khan, who first determined how long it was safe for food to remain on a floor when dropped there. Ms. Clarke investigated the scientific validity of the five-second rule during her apprenticeship in Hans Blaschek’s University of Illinois laboratory. A British scientist and germ expert, Professor Anthony Hilton of Aston University, also said it is so. Thus, one can rely on a high school student, a British professor who probably has a cool accent and the ancient founder of the Mongol empire as the authority for the five-second rule.
But does the five-second rule apply to extending a traffic stop to permit a dog sniff?
Neoal Hayes was stopped in a wall stop by officers cooperating with Drug Enforcement Agency agents. The timing of the events is important: Watch for the five-second mark.
The first officer told Hayes to exit the car and “turn and face the car, give me your hands.” As the officer handcuffed Hayes at the rear of the vehicle, he told Hayes he was just checking for weapons. Hayes was a large man wearing long pants and a hooded winter coat.
While another officer watched Hayes’ passenger, a drug detector dog handler returned to her patrol car to retrieve her dog. When, seconds later, she and her detector dog approached the back of the vehicle, the first officer moved Hayes three steps away from the vehicle. The officer adjusted Hayes’s handcuffs at the four-minute, 33-second mark on the body camera recording. The officer told Hayes at four minutes, 36 seconds he was not under arrest. As the dog team moved counterclockwise around the vehicle and appeared at the left front corner, the first officer looked to his left, toward the handler and dog. At four minutes, 41 seconds, the dog gave a positive alert to the odor of controlled substances.
A search of the vehicle revealed 2,505 grams of methamphetamine and 10 grams of heroin inside a duffel bag found behind the driver’s seat. Inside a backpack, also located behind the driver’s seat, officers retrieved a small safe containing methamphetamine, heroin, cocaine, Xanax, marijuana, a digital scale, packaging material and a loaded handgun. Hayes entered a conditional guilty plea to one count of possession with intent to distribute controlled substances and one count of possession of a firearm in furtherance of a drug trafficking crime. Hayes was sentenced to 15 years imprisonment.
As part of his plea agreement, Hayes reserved the right to appeal the trial court’s denial of his motion to suppress evidence of the drugs and firearm. Hayes argued the officer unreasonably prolonged the traffic stop to pursue an investigation into drug trafficking unrelated to the original purpose of the stop. He claimed the “Rodriguez issue thus turns on the legal and factual significance of the five seconds between 4:36 and 4:41 on the body camera video (i.e., the time between the officer’s advisement that Hayes is being detained, and the dog alert, which occurs five seconds later).” Hayes was relying on the rule of Rodriguez v. United States (575 U.S. 348 (2015)), that a stop may “last no longer than is necessary to effectuate the initial purpose of the stop…Authority for the seizure thus ends when tasks tied to the traffic infraction are – or reasonably should have been – completed.”
The court issued a per curiam decision, meaning all three appellate judges agreed on the outcome. The short decision merely states that the judges “conclude the detaining officer did not violate Hayes’s Fourth Amendment rights in this case.” Two judges wrote individual opinions. One opined the officers had reasonable suspicion to detain Hayes and investigate drug trafficking, therefore the traffic stop length was not an issue. Another judge stated that the Hayes case “is a good example of why, in adjudicating the reasonableness of a seizure, we should avoid drawing bright lines and placing rigid time limitations on law enforcement.” This is because “reasonableness – rather than efficiency – is the touchstone of the Fourth Amendment.”
In Rodriguez, the Supreme Court considered a seven-to-eight-minute delay, contrasted with the alleged five-second delay in this case. The rule from Rodriguez remains valid: A stop for a traffic violation may take the time necessary to determine “whether to issue a traffic ticket” and check “the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Extending the stop beyond that time requires an independent reason to further detain the driver.
Now, that’s not to say the five-second rule applies to traffic detention extensions. The takeaway from United States v. Hayes? Courts may be open to some truly minimal, “negligibly burdensome” delay and may acknowledge that Rodriguez does not prohibit “all conduct that in any way slows the officer from completing the stop as fast as humanly possible” in the name of efficiency.
- Patrol Issues