The Ferguson Effect

Chief Justice Roberts rules against police abuse at the Supreme Court. Maybe he finally gets it.

Los Angeles, California
A man is handcuffed in south Los Angeles on April 25, 2012. (This photograph is not intended to depict police abuse.)

Photo by Lucy Nicholson/Reuters

Dennys Rodriguez knew his rights—and he planned to use them. Just after midnight in March of 2012, a police officer pulled Rodriguez over for briefly veering onto the shoulder of the highway, and wrote Rodriguez a warning. The stop should have ended there. Instead, the officer asked Rodriguez for permission to walk his dog around Rodriguez’s Mercury Mountaineer. Rodriguez declined. The officer called for backup and, eight minutes later, did it anyway. On its second pass, the dog alerted the officer to the presence of drugs. He searched the car and found a bag of methamphetamine.

On Tuesday, the Supreme Court overturned Rodriguez’s conviction, because the officer had violated his Fourth Amendment rights by prolonging the traffic stop without reasonable suspicion.* (In Fourth Amendment terms, the eight-minute period during which the officer detained Rodriguez—after writing his warning—was an “unreasonable seizure.”) From a purely constitutional perspective, Justice Ruth Bader Ginsburg’s majority opinion is so obviously correct that it’s a little disturbing to see only six justices endorse it. But it’s still encouraging to watch this court grapple with the realities of police overreach and, occasionally, put the kibosh on law enforcement’s worst excesses.

Rodriguez v. United States is this term’s second big criminal-law decision, after the deeply misguided Heien v. North Carolina. In Heien, the court considered a traffic stop conducted by a cop who misunderstood state law. Although the driver he stopped actually did nothing wrong, eight justices decided the stop was still “reasonable” within the meaning of the Fourth Amendment. In other words, ignorance of the law is no excuse for breaking the law—unless you’re a police officer. Justice Sonia Sotomayor wrote a perceptive, finger-wagging dissent, wondering how law-abiding citizens could now avoid “these invasive, frightening, and humiliating encounters.” (Unspoken by any justice was the fact that officers can easily feign misunderstanding of the law as a pretext for a stop.)

Heien raised the question—especially pertinent in light of the Ferguson debacle—of whether the justices really get the volatile, nerve-wracking nature of police encounters, the dramatic power imbalance that allows cops to trample on citizens’ rights. In Rodriguez, the court provides the answer: Sort of. The ruling doesn’t entirely erase the mistake of Heien—officers can still pull you over for, quite literally, no good reason—but once they do, they can’t detain you without reasonable suspicion that you’ve done something worse than violate a traffic law.

It’s no surprise that Justices Elena Kagan, Ginsburg, and Sotomayor found in favor of Rodriguez; the three justices have long been extremely sensitive to the coercive pressure police can exert over nervous citizens. (In a dissent from a terrible decision last term, the trio disputed Justice Samuel Alito’s characterization of a woman freely permitting the police to search her home, noting that the officers threatened to take the woman’s children away from her if she didn’t allow the search.) And while Justice Stephen Breyer has a mottled record in Fourth Amendment cases, he, too, seems to grasp that a traffic stop longer than a few minutes could seriously interfere with drivers’ “liberty.” Justice Antonin Scalia’s majority vote here is slightly less predictable, but still unsurprising: Scalia is obsessed with privacy protections for property, and has consistently opposed unjustified searches and seizures of automobiles.

The real wild card here is Chief Justice John Roberts, who seemed so unperturbed by traffic stops during oral arguments in Rodriguez that he joked about them. Roberts also penned the shrugging, myopic opinion in Heien, noting that the case presented “little difficulty.” What changed between December and April? It could be, of course, that Roberts simply views this as a distinct case with different facts that lead to a less police-friendly outcome. It could be that in the last few months, Roberts got pulled over—apparently for the first time in his life—and finally grasps how fraught such encounters often are.

There’s another possibility: Perhaps the savvy, media-aware Roberts has finally learned the lessons of Ferguson and is trading in his logical abstractions for some much-needed legal realism. The Justice Department’s investigation into Ferguson revealed a system of law enforcement that used police power to target minorities and trap them in a cycle of debt and incarceration. From 2012 to 2014, blacks made up 67 percent of Ferguson’s population but accounted for 85 percent of traffic stops. Even worse, blacks were twice as likely as whites to be searched during the stop—though whites were 26 percent more likely to have contraband.

Anybody who hears of these abuses—and it’s hard to imagine Roberts did not—should be able to see why the Rodriguez decision is so obviously correct. The officer held Rodriguez for eight minutes after issuing his warning, despite the fact that, in his words, “I got all the reason[s] for the stop out of the way.” He had no reason to believe Rodriguez was carrying drugs; his decision to hold him was a mere exercise in arbitrary power. Curbing cops’ ability to detain drivers on absolutely no reasonable suspicion won’t solve all the problems Ferguson exposed. But, as Roberts may have realized, it might dissuade officers inclined to use their authority to intimidate citizens out of exercising their constitutional rights.

Whatever epiphany struck Roberts between Heien and Rodriguez seems to have missed Justices Anthony Kennedy, Clarence Thomas, and Alito. Thomas, in particular, appears to be woefully out of touch with reality, yowling about the court’s requirement that officers end a traffic stop “when tasks tied to the traffic infraction” are over. Thomas calls this bright-line rule trivial, seemingly suggesting that once a cop has pulled you over, he gets to detain you for as long as he wants. The majority, Thomas writes, “strictly limit[s] the scope of an officer’s activities during a traffic stop.” To him, that’s a bad thing.

But perhaps the nastiest moment in Thomas’ dissent arrives toward the end, when the justice attempts to prove that the officer had probable cause to search Rodriguez’s car even without the dog’s alert. Thomas cites the fact that Rodriguez had an air freshener, explaining that this gave the officer cause to believe Rodriguez was hiding drugs. This evidence was rejected by the trial court as nothing more than a “hunch,” but Thomas decides to spontaneously reverse that decision. Accepting a trial court’s findings of fact is a hallmark of judicial restraint and a fundamental rule of Supreme Court decision-making. But Thomas clearly has no interest in rules or restraint here—he just wants to keep Rodriguez in jail.

Rodriguez paints a picture of a very divided court, erasing the unanimity on Fourth Amendment issues that last term’s cellphone-search case hinted at. On one side, we have a bloc of justices who think the Fourth Amendment prohibits police from drawing out traffic stops until they can prove a driver broke some law. On the other side, we have a bloc of justices who don’t really care about police intimidation on the roadside. And we have Scalia, who probably doesn’t give a damn about Ferguson but still doesn’t want a cop meddling with his SUV for no reason. In Rodriguez, the saner of these factions won out. That motley assortment of justices can’t always be relied on to protect the Fourth Amendment. But on Tuesday, they handed down a vital victory for those who’ve had enough of being frightened and humiliated by police officers eager to abuse their immense power.

*Correction, April 22, 2015: This article originally misstated that the Supreme Court found Dennys Rodriguez’s drugs to be inadmissible. The court overturned Rodriguez’s conviction, but remanded the issue of inadmissibility to the appeals court. (Return.)