CA10: Five seconds is de minimus under Rodriguez

In a short per curiam, the Tenth Circuit upholds a dog sniff under Rodriguez without explanation. The concurrence, however, tells us that the stop was extended five seconds past the “Rodriguez moment” as still reasonable. United States v. Hayes, 2023 U.S. App. LEXIS 6354 (10th Cir. Mar. 17, 2023).

“The inevitable discovery exception is not a windfall device. It is not intended to put police in a better position but only ‘in the same, not a worse, position [than] they would have been in if no police error or misconduct had occurred.’ Nix, 467 U.S. at 443. In assessing the government’s burden, we are mindful ‘inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification.’ Id. at 444 n.5.” Defendant doesn’t overcome the district court’s findings that it was all inevitable. As to the inventory of defendant’s backpack, the officers testified they take property to safekeep it and not necessarily use it as evidence. Finally, circuit precedent doesn’t require written policies be put into evidence. United States v. O’Neil, 2023 U.S. App. LEXIS 6355 (10th Cir. Mar. 17, 2023).*

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