By Tracey Maclin. Full text here.
Anthony Amsterdam’s article, Perspectives On The Fourth Amendment, is one of the best, if not the best, law review articles written on the Fourth Amendment. My Article connects two perspectives from Amsterdam’s article—the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar arbitrary and ruleless searches and seizures—to an aspect of modern American society that affects millions of people: traffic stops by the police. This past Term, the Supreme Court decided Rodriguez v. United States. At issue was whether the Fourth Amendment “tolerates a dog sniff conducted after the completion of a traffic stop.” The Court, in a 6–3 ruling, held that “a police stop exceeding the time needed to handle the matter for which the stop was made” violates the Fourth Amendment. While certainly a temporary victory for Mr. Rodriguez, I submit that Rodriguez is a vexing decision on several fronts. As I will explain, Rodriguez is a significant ruling because it rejects the argument that police can prolong a traffic stop to pursue a drug investigation. At the same time, however, Rodriguez blesses two troublesome investigative techniques that have been utilized in the country’s seemingly never-ending “War on Drugs” and that are, in my view, inconsistent with Fourth Amendment freedoms and contrary to Professor Amsterdam’s insights on the amendment.
Professor Amsterdam’s article teaches that controlling the discretionary power of officers while they are effectuating searches and seizures is essential to protecting Fourth Amendment freedoms. Police seize millions of Americans every year during traffic stops. Traffic stops are rife with the potential for arbitrary and discriminatory police power. “Once an officer stops a motorist for a traffic offense, the officer has the discretion to transform that traffic stop into an investigation of other serious crimes without the check of reasonable suspicion or probable cause.” If the Justices want to protect the Fourth Amendment rights of millions of American motorists, they should recognize that police interrogation of motorists about subjects unrelated to the reason for the traffic stop provides police with unchecked discretion to pursue a criminal investigation and is beyond the scope of an ordinary traffic stop.