Much already has been written (
e.g.,
here,
here and even
on dKos) about SCOTUS's Fourth Amendment decision this week in
Rodriguez v. United States. Rodriguez held that a
traffic stop is unconstitutional where it is delayed for investigation by a drug-sniffing dog, at least where there is no reasonable suspicion of a crime.
However, the very end of Justice Ginsburg's majority opinion deserves its own mention for two reasons: first, it leaves open the possibility that this search could still be upheld on remand to the Eighth Circuit; and second, for the poke in the eye Justice Ginsburg gave to her conservative colleagues.
Procedurally, the case got to SCOTUS after the U.S. District Court for Nebraska adopted the magistrate's recommendation for denial of Rodriguez's motion to suppress evidence. (The denial of a motion to suppress is how most Fourth Amendment cases reach SCOTUS.) The District Court found that the facts known to the arresting officer did not constitute a reasonable suspicion of a crime.
When the Eighth Circuit Court of Appeals affirmed the District Court's denial of the motion, it did not address the reasonable suspicion issue. Thus, when SCOTUS picked up the case, that issue was not perfected for appeal. Despite this fact, Justices Thomas and Alito, in their respective dissents, were more than willing to affirm the Eighth Circuit on the reasonable suspicion issue. (The case now goes back to the Eighth Circuit for review of the reasonable suspicion issue--one that could uphold the traffic stop and send Rodriguez to prison.)
It is Justice Ginsburg's genius in citing to the other justices' dissenting opinions that makes it noteworthy, at least to those of us who get a charge out of such things. I have added the emphasis:
The Magistrate Judge found that detention for the dog sniff in this case was not independently supported by individualized suspicion, see App. 100, and the District Court adopted the Magistrate Judge’s findings, see id., at 112–113. The Court of Appeals, however, did not review that determination. But see post, at 1, 10–12 (THOMAS, J., dissenting) (resolving the issue, nevermind that the Court of Appeals left it unaddressed); post, at 1–2 (ALITO, J., dissenting) (upbraiding the Court for addressing the sole issue decided by the Court of Appeals and characterizing the Court’s answer as “unnecessary” because the Court, instead, should have decided an issue the Court of Appeals did not decide). The question whether reasonable suspicion of criminal activity justified detaining Rodriguez beyond completion of the traffic infraction investigation, therefore, remains open for Eighth Circuit consideration on remand.
http://www.supremecourt.gov/...
9:13 AM PT: Thanks to Demi Moaned for pointing out the obscurity of my point.
The skewering comes somewhat subtly in the way Justice Ginsburg cites to their dissents. Citations are supposed to be dry references to a source. She takes it one step farther and actually weaves an argument into each citation.
First she makes the point that the 8th Circuit never decided the issue. Then she introduces a citation with "But see," which is supposed to lead into a dry citation of the opposite point. She then cites the dissents supposedly for the point that the 8th Circuit DID decide the issue, but does so in a way that mocks them for it.