STATE v. DOMINGUEZ (2023)

Petition for discretionary review refused.

DISSENTING OPINION

The defendant's vehicle was stopped because its registration had expired. After the stop, the defendant indicated that he could not confirm his insurance information. Two minutes after dispatch confirmed the insurance information, another officer began having a drug dog sniff around the vehicle. The dog sniff revealed the presence of illegal drugs. The trial court concluded that the defendant's detention was prolonged longer than allowed by the Fourth Amendment. In upholding the trial court's decision, the court of appeals relied on Rodriguez v. United States ¹ for the proposition that a traffic stop becomes unlawful if it is prolonged beyond the time reasonably required to investigate and issue a ticket for the traffic violation.

The State contends that Rodriguez does not apply to this case for two basic reasons.² First, the officer had the authority to arrest the defendant for the traffic offense, not merely the authority to detain him, so the time required to complete a mere detention does not apply. Second, the expired registration meant that the defendant's vehicle was in continuous violation of the traffic code, allowing the vehicle, at least, to be held beyond what would be allowed for a mere detention. If the State's first argument is right, there was no Fourth Amendment violation. If the second argument is right, there was no causal connection between any violation of the defendant's Fourth Amendment rights and the information obtained from the dog sniff of the vehicle. Both of the State's contentions pose important, unsettled questions of constitutional law.

A. Arrest

For a few traffic offenses in Texas, such as speeding, an officer must issue a notice to appear, and cannot make an arrest, if the motorist is willing to sign a citation.³ For all other traffic offenses, an officer may make an arrest, without a warrant, if the offense was committed in the officer's presence.⁴ The defendant's registration offense is one of these latter offenses, for which arrest was possible.⁵ The holding in Rodriguez straightforwardly applies to citation-only traffic offenses. But does it apply to traffic offenses for which a person can be arrested?

In Rodriguez, the Supreme Court cited Illinois v. Caballes ⁶ for the proposition that “seizure justified only by a police-observed traffic violation ․ becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.”⁷ On its face, the language used in Rodriguez suggests that it does not matter whether or not the traffic offense is one for which an arrest is authorized. But if one looks at the cited passage in Caballes, the issue seems far less clear. In Caballes, the Supreme Court said, “A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”⁸ If the traffic offense in question is one for which an arrest is authorized, then at least arguably, it is not “justified solely” by the interest in issuing a ticket and, therefore, it is not covered by the rule in Caballes that Rodriguez cited and applied.

In Berkemer v. McCarty, the Supreme Court suggested that rules that apply to detentions might not apply to traffic stops that are based on probable cause (the standard that would justify an arrest):

No more is implied by this analogy than that most traffic stops resemble, in duration and atmosphere, the kind of brief detention authorized in Terry. We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.9

And the Supreme Court has held that the Fourth Amendment permits a warrantless arrest for a minor traffic offense, even one that is punishable only by a fine.¹⁰ And even after Rodriguez, the Seventh Circuit has drawn a distinction between stops based on reasonable suspicion and those based on probable cause, saying that the latter “are not subject to the scope and duration restrictions of Terry v. Ohio.”¹¹

Here, the offense in question—expired registration—was one for which arrest was authorized, and the officer had probable cause to believe the offense had been committed. Consequently, he had a sufficient basis to arrest the defendant on the traffic offense. Had he arrested the defendant as soon as the traffic offense was confirmed, the officer could have arranged to have the vehicle driven away or impounded and there would have been plenty of time to conduct the dog sniff in the meantime. Under those circumstances, there would have been no Fourth Amendment violation.

But the officer here did not arrest the defendant immediately upon confirming the traffic violation. Instead, he deferred the decision about arrest until after the dog sniff was completed. Is that difference constitutionally significant? Does the dog sniff become invalid because, instead of arresting the defendant right away, the officer chose to wait a brief time for the outcome of the dog sniff? The court of appeals essentially said “yes” to these questions, and if we allow that “yes” to stand, the result may be more arrests for traffic offenses than there otherwise would have been. Arresting on a traffic offense will become the safer option for a police officer who suspects a defendant of carrying drugs. Some people will likely end up arrested when they would have been released on a citation after a dog sniff turned up negative. If Supreme Court caselaw compels this result, then we must enforce it, but we should grant review to decide whether it does.

B. Continuing Offense

Operating a motor vehicle on a public highway with an expired registration is an offense.¹² So if a motorist is allowed to drive away from a traffic stop with an expired registration, the motorist will be continuing to commit the offense. Faced with such a situation, can an officer order that the vehicle be towed to the driver's home or elsewhere to avoid further violations of the law? If so, the officer would seem to have the authority to detain the vehicle even past the time required to release the driver after issuing a traffic ticket.

The traffic code includes civil remedies for violating the registration scheme that might or might not have a bearing on the issue.¹³ Perhaps a necessity defense would work to prevent further citations if the motorist merely drives the vehicle home after the initial citation.¹⁴ How either of these would affect any authority of the officer is unclear. What an officer can or should do with a vehicle when the vehicle itself is out of compliance with traffic laws is an important, unsettled question of law.

C. Conclusion

Because important, unsettled questions of law are presented by the State's petition, I would grant it. Because the Court does not, I respectfully dissent.

FOOTNOTES

1.   575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

2.   The State has three grounds, but the second and third grounds relate to the second basic reason for holding the fruits of the search to be admissible.

3.   Tex. Transp. Code § 543.004.

4.   Id. § 543.001 (“Any peace officer may arrest without warrant a person found committing a violation of this subtitle.”). See also id. § 543.004(c) (“The offenses specified by Subsection (a) are the only offenses for which issuance of a written notice to appear is mandatory.”).

5.   See id. §§ 502.472, 502.473 (registration offense); supra at n.4.

6.   543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).

7.   575 U.S. at 350-51, 135 S.Ct. 1609 (internal quotation marks and brackets omitted, ellipsis added).

8.   543 U.S. at 407, 125 S.Ct. 834 (emphasis added).

9.   468 U.S. 420, 439 n.29, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

10.   Atwater v. City of Lago Vista, 532 U.S. 318, 323, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001).

11.   United States v. Bentley, 795 F.3d 630, 633 (7th Cir. 2015).

12.   Tex. Transp. Code §§ 502.472 (“A person commits an offense if the person operates a motor vehicle that has not been registered or registered for a class other than that to which the vehicle belongs as required by law.”), 502.473(a) (“A person commits an offense if the person operates on a public highway during a registration period a motor vehicle that does not properly display the registration insignia issued by the department that establishes that the license plates have been validated for the period.”).

13.   See id. § 502.045.

14.   See Tex. Penal Code § 9.22.