Friday, February 20, 2015

When Sequencing May Matter

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Rodriguez v. United States, which raises the question whether police may, absent reasonable suspicion, extend an already-completed traffic stop to allow for a dog sniff for narcotics.  In my column, I focus on two questions that interested the Justices during oral argument: what difference the order of police activities during a traffic stop should make, and which questions and activities by police are and are not legitimate incidents of a traffic-related stop.  The sequencing question basically asks whether it matters that police in this case conducted the entirety of the traffic-stop-related activity (including issuing the written warning) before conducting the extra step of having a dog sniff for narcotics rather than having instead interrupted the traffic-related inquiries and activities for a dog sniff and then continued on with the traffic-related matters.  Several Justices and the government attorney expressed the view that such sequencing should not matter at all to the Fourth Amendment, and I am generally inclined to agree with this position.

In this post, however, I want to explore one potential argument for saying that sequencing may matter sometimes.  The argument is not a strictly legal argument, but if the Fourth Amendment inquiry takes into account the individual's subjective experience during a police encounter, then it may bear on the "reasonable seizure" question.

In 2003, Redelmeier et al. published a field study in which patients receiving a colonoscopy were randomly assigned to one of two groups.  In one group, the colonoscopy would take as long as a colonoscopy typically takes, with all associated unpleasantness, and would end as soon as the procedure was complete.  In the other group, the tip of the colonoscope would be left inside the patient's rectum for a short period of time after the procedure itself was complete.  This study was conducted back in a time when patients were generally fully conscious during such procedures and therefore fully experienced the accompanying pain and discomfort. Both groups of patients, then, experienced the very unpleasant colonoscopy itself, but one group also experienced an also uncomfortable--but less uncomfortable--ending to the procedure, in addition to the procedure itself.

Following their procedures, patients were asked to characterize the painfulness of the colonoscopy as well as of the final moments (in the group that had the additional part added).  The results showed that the patients whose colonoscopies were longer (because they were given the add-on) rated the add-on portion of the colonoscopy as unpleasant but not as unpleasant as the procedure itself.  In addition, and most interestingly, the patients having the longer procedure (because of the add-on) rated their entire experience as less unpleasant than did the patients whose colonoscopies were shorter (because they did not receive the add-on).  The patients with the longer experience also had a higher rate of return for a repeat colonoscopy.

Even though the two groups of patients both experienced the more intense discomfort of the procedure itself, the ones with the less negative memories and overall assessments of what happened were those who were subjected to additional (though less uncomfortable) discomfort at the end of the procedure.  The study tends to support the notion that memory is not a full catalogue of an individual's entire experience but instead selectively records the peaks (the intense pain) as well as the endings in what occurred.  With a less painful (though still unpleasant) ending, the patients having longer colonoscopies apparently had their memory of intense pain somewhat mitigated or diluted by the ending.  By contrast, the patients with the short but only more painful experience had nothing to mitigate the memory and therefore left with a more negative recollection.  Given the add-on patients' greater willingness to return for colonoscopies in the future, the logical (though perhaps counter-intuitive) proposal that might come out of this study would be to extend colonoscopies unnecessarily to give patients something less unpleasant to remember.

Why do I bring up this colonoscopy/memory study in connection with the Rodriguez case?  I do so because the question of sequencing--when police decide to conduct a dog sniff--might matter to a suspect's overall experience of the traffic stop, even if it does not alter the total time that the police encounter takes (that is, the traffic-related inquiries plus the dog sniff).  If we assume that the suspect stopped for a minor traffic violation experiences the extended detention for a dog sniff as an alarming and thus very unpleasant development, then it may be that having this occur at the end of the encounter, after the written warning (or ticket) has already been issued, will make it especially memorable in a bad way, like a very painful ending to a colonoscopy.  And if the suspect, as we might imagine, experiences the traffic-related inquiries as less unpleasant interventions, then having the dog sniff in the middle of the stop and ending with more traffic-related inquiries could perhaps soften the blow.  If this is true, then perhaps it would make sense for the Supreme Court to classify an extra detention for a dog sniff differently, depending on whether it takes place during or after the traffic-related portion of the stop.

Ultimately, I do not think it would be legitimate (not to mention remotely likely) for the Supreme Court to consider the way in which subjective memory works as a factor in resolving the sequencing question (if it in fact resolves this question at all in this case).  But because a significant part of our experience of the world happens in the remembering of prior experiences, rather than simply in the experiencing in the moment, it seems relevant and noteworthy to consider the possibility that despite contrary appearances, the sequencing of intrusions by police may matter a great deal to how suspects (and people who are stopped more generally) come to feel about what happened to them on the highway, after police have signaled them to pull over.  Even if it makes no difference to the Fourth Amendment, moreover, it may be something that police departments consider in setting policy for their officers in the conduct of stops.