criterion is being applied. >> that's the question -- >> that's a very good question, if i may just answer. i'll come back and finish my answer, mr. chief justice. that the -- that's a very good point, justice ginsburg, and we're -- although we're here defending the question, we think yes, i don't have a position on whether the this is a viable disparate impact claim and we think she's made a good point in her concurrence because it's not clear to us what specific practice that the state would justify the finds. that could be decided on a remand from the district court. that gets to what i was trying to say to you, mr. chief justice, which is you've got to apply the test, which is how to set out -- >> with respect -- i don't think that's responsive. you say you look at which provision is having the disparate impact, but i still

don't understand which is the disparate impact. in other words, is it the provision that causes more proposals to go to more proposals to go to the housing or is it the provision that causes more approval of more. you've about got to know what you're shooting at. >> the disparity tied to the practice is just the first step in the appal sis. the second step is what's the justification justification. >> i'll ask it the last time and let you get on. you're saying you need justification, but for what? which is the bad thing to do? not promote low income housing --? you say what's causing the bat effect, but what's causing the bad effect? >> it may be neither because the government may say in the first case, well this is our justification and that may be a just fi indication that holds up. the government may say in the second case, well that's our

justification and that may be a justification that hold up. >> do you think that a private developer would ever be found guilty of disparate impact because he owns a piece of property in an affluent neighborhood? >> no, certainly not. >> he's permitted to develop hiss property. >> of course. >> the disparate impact would be if he fails to sell or make available to people of all races, let's say, the units in that property, correct? >> there's got to be a specific practice. >> practice, all right. a specific practice that has a business -- >> it would be unjustified. >> exactly. >> i thought the question was though -- i mean it's not a developer. it's the department of housing and community affairs and i thought the challenge was where they were supporting development, not the developer. >> this may not be a good disparate impact claim, mr. chief justice, but the cases that are in the heartland are

really pretty straightforward. >> but are you saying that in each case that the chief justice puts, there is initially a disparate impact at step one, that is to say, community a wants the development to be in the suburbs. the next statement, the community wants it to be in the core neighborhood. it's your position, it seems to me, or the position of the respondents, that in either case, step one has been satisfied. >> that may be right justice kennedy, but i think the point -- >> that seems very odd to me. >> but i think even if they are difficult cases there are cases in the heartland that have been adjudicated for 35, 40 years cases such as there's a zoning restriction that has a disparate impact that cannot be justified on a substantial basis. there's an only oklahoma pansy restriction. >> can i ask a question -- i'm sorry -- about chevron? should we be concerned here about the use of chevron to

manipulate decisions of this court? the fair housing act was enacted in 1968. for 40 years plus, there were no hud regulations. then we granted certificate in the gallagher case and it was only after that and within, i think, days after that that the hud regulations were issued and then the gallagher case sketettled. and the mount holly case settled. so should we be troubled by this chronology? >> i understand the import of your question, your honor. i guess i would say a couple of things in response. the first is that hud in formal adjudications reviewed by the secretary has found disparate impact liability available under these provisions in the fair housinging at since 1992 i believe and those would be entitle todashev ron deference and i do think respectfully

that's a point that we made in our brief in the first case. and the second, i don't mean to be flip about it because i understand your honor's point of the question but i do think it overestimates the efficiency of the government to think that the proposed rule making on an issue like this -- >> that was persuasive. >> very persuasive. >> and so i think actually this has been the position of hud for a very long time and you would get chevron deaf frens. i think that's pretty clear wholy apart but we do have it and i think it gets chevron deference. >> and if i could turn to the question of avoidance constitutional avoidance that has come up i don't think this is a suitable case for constitutional avoidance, and let me try to explain why. whatever one might think in the title seven context about the

consequences of finding disparate impact liability, this is a very different context. and the title seven context the issue has been raced that the only way to avoid disparate impact liability is to engage in race based remedies. not race based thinking about what neutral criterion to adopt but race based remedies. and here in the heartland cases under the fair housing act you aren't going to have that kind of an issue. the remedy is going to be the substitution of one race neutral rule for another race neutral rule. for example if a landlord cannot justify an occupancy restriction that's particularly tight, the remedy there is going to be either no occupancy restriction or a loser occupancy restriction, and the consequence in those case rs same thing with zoning, the consequence in those cases is no one gets classified by race, no one gets a burden

imposed upon them because of race, and no one gets a benefit because of race. >> who you select depends on what effect that will have on racial use of the facility. >> i this i the consequence -- no i think -- >> you select it on the basis of what effect it will have on race. >> but that -- that kind of consideration, so long as the rule that comes later is a race neutral rule seems to me is exactly the kind of thing that the plurality opinion of this court said in the contracting context that governments could do. they couldn't afford a preference to priority contractors but they could do things as the court suggested. it could be newer smaller businesses more eligible. >> to underscore that, i think everybody's getting confused with this. disparate impact does not go to who they take unless they set up a practice. >> that's correct.

>> that has that -- >> in the heartland cases with respect to the fair housinging at, the kinds of remedies that are going to be imposed are like the kinds of remedies that the court said -- or the plurality said, excuse me, justice fein and justice kennedy, they're like the kinds of race neutral situations that your parents -- >> what you're saying is suppose that the plaintiffs in this case on that side wins. they're trying to win. the defense on the other -- it's not true that that means all section 8 housing is now going to be an even large amount but in rich neighborhoods. first they can defend on the ground that we don't have that practice to put it in poor english, second they could say yes, we do but don't you see that isn't going to hurt minorities because it puts those minorities in housing where many of them are unfortunately in poor neighborhoods and it doesn't have the great effect.

they can say, anyway, it's justified for a whole bunch of reasons. so the answer is case by case they have a specific set of forms that give answers. hud can come in and decide and there is no need to throw the whole baby out -- i don't know if it's the baby or bath water, whatever you're thoughing out, but you don't have to throw out the whole big thing in order to prevent. >> so -- i'm sorry. >> if i can understand, because, again, i don't know what you're shooting for. two different communities okay? they have these tax credits, whatever, to give out. one place they give it to the housing in the afluntsd neighborhood, the other they given it to the housing in the low income neighborhood. they're both sued. the one they say, o, no this is good because we're promoisturing it. the impact is not a problem. the other says, no this is good because we're revitalizing low

income neighborhoods. they both win? >> they might both win. if there are instances in which there's a concern that recognition impact liability could result in not just race-based thinking about neutral means but race-based remedies, it seems the answer is what the court gives, answer on an applied basis. but that isn't the justification for denying hud on the authority that hud has under the regulations -- under the statute as amejded in 1988 when congress specifically gave hud the authority to do sonld a did so against the backdrop of supposed the skpemexemptions. after nine courts of appeals found that it did impose it. the question here is whether under chevron the statutory text read fairly taking all the

provision of the statute together unambiguously forecloses hud for finding impact liability here and we assume -- we submit the answer too that question must be no. it does not unambiguously forbid hud from reaching the conclusion it reached. therefore the answer presented in this case is whether the fair housing act recognizes disparate impact housing liability is yes. >> could i just ask? i don't know a lot thb area, and i take it one of things you're warning us against is seeing the entire area through this quite unusual case and you've referred a few times to sort of the heartland cases but without really getting out what the heartland cases are. so for me, what -- >> sure. may i answer, mr. chief justice? >> sure. >> thank you. they're the kinds of cases that have been litigated. you've seen in the court of appeals opinions for 35 years. restrictions say a town adopts a restriction saying it can't

convert housing from ownership to rental unless you're renting to a blood relative. it has the effect of excluding minorities. the town adopts an occupancy restripgs for apartment buildings that's so tight that you're not going to be able to -- families with kids aren't going to be able to live there. that disproportionately affects it. those kinds of things. zoning restrictions. housing program restrictions. those are the kinds of rules of the heartland cases. >> thank you. general keller you have for minute reus remaining. >> to answer your question, boilkt would open up liability for disparate impact. here the department could face impact liability if it was going to take tax credits and send them to lower areas or affluent neighborhoods. >> you keep saying that but that's not what happened here. the remedy was not to tell you to move your development from one area to another.

the remedy did preclude developments next to land fills but it also included other tinkering with the qualifications. but you're still going to need people who want to do it. >> but in the remedy in this case -- >> -- the development they wanted to do. >> kept it retained jurisdiction for five years. >> that has to go with your attacks on the remedy. that doesn't have anything to do with what disparate impact as an approach set out by hud. >> each is going to have to examine -- snowno. >> what they have to do is what everyone should do. before they set up any policies i think about what is the most race neutral policy. that's a very different thing.

that i think everyone is on gated to do. it's only if the other side proves that a qualification has a race effect that's not necessary can they win. >> here the department engaged race neutral policies. justice sew lito, to your point about smith and the adae factors other than age there are three things that distinguish that from this case. first, there's a textual distance. it refers to actions otherwise prohibited and corporate smikts interpreted that as recognizing that disparate liability could lie under that ada. in fair housing we don't have that. this is truly a safe harbor. second, smith already noted that the ada already used adverse effect. and third no constitutional avoidance could have applied there. the reason we're here is the

texas didn't did not use race-based decision-making. take a hypothetical from gruder. if the university of michigan said the incoming class must have 30% of its incoming classa certain race and we used to do that but if those aren't available, race-based means must be used that would be suspect at the very least. all we need to do is show a doubt. ricci said that there was one. >> what in the remedy ordered here was race-based? what remedy said you have to take in ten,10%, 20%, 15%. >> it's whether the disparity is going to close and whether the department is going to remain not in compliance with the fair housing act is still race based. thank you mr. chief justice. >> thank you, counsel. the case is submitted. >> with live coverage of the u.s. house on c-span and the

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book tv and "american history tv" on the road traveling to u.s. cities to learn about their history and literary life. this weekend we've partnered with time warner cable for a visit to greensboro, north carolina. >> and after months and months of cleaning the house, charles halpern, who had been given that task, was making one more walk-through, and in the attic he looked over and he saw an envelope with kind of a green seal on it and walked over and noticed the date was an 1832 document. he removed a single nail from a panel in an upstairs attic room and discovered a trunk and books and portraits stuck up under the eaves and this was a treasure your of dolly madison's things. we've had this story displayed to the public, displaying different items from time to time but trying to include her

birth to her death in 1849. some of the items that we currently have on display, a carved ivory calling card case that has a card enclosed with dolly's signature as well as that of her niece anna, some small cut glass perfume bottles and a pair of silk slippers that have tiny little ribbons that tie across the arch of her foot. and the two dresses are the reproductions of a silk -- peach silk gown that she wore earliest in life and a red velvet gown that has intrigued that both that it lasted and was part of this collection and there's also a legend that now accompanies this dress. >> watch all of our events from greens beau, saturday at noon eastern on c-span2's book tv and sunday afternoon at 2:00 on

"american history tv" on c-span3. the supreme court heard oral argument in rodriguez versus the united states, a case that is supreme court versus united states, a case testing how long a traffic stop can be extended to allow police time to conduct a dog sniff for dogs. the court will decide this case before the end of the term in june. the oral argument is about an hour. >> with your argument next this morning in case 139972 rodriguez versus the united states. mr. o'connor. >> mr. chief justice, may it please the court, the big issue that starts in this case that whether after completing the task related to a traffic stop whether an officer without individualized suspicion can hold the driver for a dog sniff. specific question in this case is whether officer strubel was entitled to piggy back an

already completed traffic offense with probable cause onto that traffic offense for an investigation of mr. rodriguez involving nothing more than a hunch. that is the question of the case. >> but that remains -- that wasn't reached by the court of appeals. the district court as you pointed out rejected the argument that there was probable cause saying it's nothing more than a hunch but that was not reviewed by the court of appeals so that could still be open. >> the decision of the court of appeals, your honor, absolutely. that was a diminimus ruling.

they did not reach the question as to whether there was e minimus ruling. they did not reach the question as to whether there was minimus ruling. they did not reach the question as to whether there was reasonable suspicion and left it just based on their ruling of whether in fact this was a diminus action. >> counsel, do you concede that this would be all right if the dog sniff took place during the eus action. >> counsel, do you concede that this would be all right if the dog sniff took place during the mus action. >> counsel, do you concede that this would be all right if the dog sniff took place during the ius action. >> counsel, do you concede that this would be all right if the dog sniff took place during the nus action. >> counsel, do you concede that this would be all right if the dog sniff took place during the ius action. >> counsel, do you concede that this would be all right if the dog sniff took place during the us action. >> counsel, do you concede that this would be all right if the dog sniff took place during the us action. >> counsel, do you concede that this would be all right if the action. >> counsel, do you concede that this would be all right if the dog sniff took place during the mus action. >> counsel, do you concede that this would be all right if the around the car prior to the completion of the traffic stop and the ticket then, of course, it would be -- >> all right. mr. o'connor, it's frequent that

a policeman when he stops somebody for broken taillight or whatever, will conduct some other inquiries. you know, where are you going? ask a lot of questions. he will check whether the person is -- is driving a stolen car. whether the person is properly all of that has nothing to do with a broken taillight and yet that's permitted, right? >> it would be permitted if he did it after he wrote the ticket? >> at that point in time, no. >> that is right. he can only do that before he writes the ticket. >> if -- >> what if he's not giving a ticket. he's just going to give him a warning? he says to them, you shouldn't have done that and you went a little bit over the line. be careful next time. by the way, let me see your driver's license. that would be bad. >> yes, your honor. that would be -- >> it would be.

>> it would be because that would be part of the stop. all of those questions would be be -- once the stop is finished, then he should be allowed to go no matter what the question was. >> is it your argument that as soon as all of the steps that must be taken in connection with the traffic stop are completed, then the stop must end or is it that nothing more can be done after the ticket is issued? in other words, is it the length of time or is it the formal act of giving the ticket or the warning that cuts things off? >> it is the formal act once the act of the traffic stop is done -- which would be the reason. which would be the purpose for the stop. once that is done that is the -- >> when that is done is not clear.

two questions, in justice scalia's hypothetical, the officer said i'm not going to give you a ticket, but i just want to ask you a few questions. it seems to me that under your argument those questions are permissible, he says he's not giving a ticket. but as justice alito indicates, he says, now i've finished your ticket but before i give it to you, i'm going to go back to the car and see if there are any warrants. i've finished writing the ticket. i've folded my notebook. but i'm going to first go back and see if my radio check has come in to verify your license plates. is that permitted? >> if this is the end of the traffic stop, it is not. >> but first of all -- >> these are hypotheticals that have a wrong presumption. okay?

there are certain tasks involved in giving a traffic ticket, correct? >> yes, your honor. >> those include checking for warrants, checking for tickets on the car, checking identity, asking questions about that and generally with identity, it also has to do with where are you going and where are you coming from, correct? >> yes, your honor. >> all right. justice sotomayor. >> i didn't hear that. my question for you and it can't be the formal act of writing the ticket. it has to be the formal -- it has to be the acts related to the mission. whether you finish those, that's when the stop ends. >> yes, your honor. that is exactly right. >> yeah but you've tied it to just writing and handing over the ticket -- or you've not even doing that. you're saying just writing the ticket. which is crazy. >> if, in fact, that's the

impression that i gave, that is wrong. it is not the formal handing of the ticket is when the stop is complete. once the justification for the stop and the purpose is complete, the ticket is done. whether it is a warning, whether it is handed to them at some point in time, the ticket is done. that's the investigation. >> justice sotomayor's question assumes, and you apparently embrace the assumption, that checking on whether you have a proper license, checking whether the car is stolen, all of those things are embraced within the mission when the only basis for the stop is you have a broken taillight. how does that have anything to do with a broken taillight? >> those are things your honor that have been accepted as part of the process. >> i see. well, maybe dog sniffing should be too, right? >> dog sniffing is accepted so long as it is done before, what,

before completion of the mission. >> which includes not just the broken taillight but also inquiring into your license, inquiring into prior arrests. that's all part of the mission. >> yes, your honor. >> why won't you make the dog sniff part of the mission and that will solve the problem? part of the mission when you stop somebody is not just the broken taillight but, you know, whether the car is stolen. whether you have drugs in the car. so let's bring in the dog and do the car-sniff. you're willing to expand the mission to do everything up to but not beyond the dog sniff. why do you do that? >> you expand the mission, your honor, for everything that comes within the tasks that are part of the traffic stop. the dog sniff -- >> it's a broken taillight. that's the only thing that comes within the traffic stop. all the rest is added on and you let them add it on. why don't you let them add on the dog sniff?

you do, so long as it occurs before the ticket is delivered. is that right? >> you do if it's done before the traffic stop is done. the ticket would not be -- >> do you see the problem is how do you define the traffic stop? you've already indicated that the traffic stop can include some of the questions. you're really, i think, much better off if you stick with the formal rule. once you hand the ticket that's the end of it. then you have a formal rule. you're not arguing that. that leads us open to the question why can't we include the dog sniff? >> well, the dog sniff -- >> it's a policy question. so answer it as a policy question. don't tie it to the stop or not. tie it to something else. >> as a policy question, if you could end it with the handing of the ticket, that would be acceptable. if we tie -- if we tie the traffic ticket as the end of the justification for the stop.

>> we loeld that it's okay to have a dog sniff so long as it is before the ticket is issued. then every police officer, other than those who are uninformed or incompetent will delay the handing over of the ticket until the dog sniff is completed. so what does that accomplish? it's great for your client but what does it do for the law? >> your honor, i think what it does first if you have officers that wait -- if that's the question your honor, if they wait for the pocket -- put the ticket in the pocket -- >> if we adopt a formal rule. that's one of the options. a formal rule. once you hand over the ticket, that's it. you can't do anything more. the person has to be allowed to go. all right? is that your argument or not? >> yes. >> that is your argument. >> yes. >> what does that accomplish? >> what it accomplishes is the enforcement of the fourth amendment. once the stop is done, once the purpose is done, the

justification is done. the -- >> the question is, is this very -- just the easiest thing to get around by simply saying the sequence in which i will do this. i won't think of issuing the ticket until i've had the dog sniff. so that's the problem. what are you accomplishing, say we make the handing over of the ticket the end of the legitimate stop. well then the police can just say, i'm going to defer that a few minutes until the dog sniff occurs. a it just seems that you're not going to accomplish any protection for individuals if that's your position, that if it's just a question of when you do it so if you do it during

the stop, before the ticket is issued, it's okay. if you do it two minutes after it, it's not okay. >> your honor, it is okay when the traffic stop is done. when the mission is complete. >> you can't possibly mean that. >> you can't possibly mean that. the stopping officer says yeah, i'm done. i got my ticket here. it's all written out. however, before i give it to you, i want to have a dog sniff. i'm going to call in to headquarters, they are going to send down a dog. it's going to take maybe 45 minutes. you just sit there because the traffic stop is not terminated till i give you your ticket. you going to allow that? >> well, again, the formal handing of the ticket is not the end. in your example -- in your >> in your example he hasn't turned over the ticket yet. he says i'm not going to give you the ticket until the dog comes. that's going to take 45 minutes.

that's okay? >> no, the traffic stop is done. whether he hands the ticket to him at that point in time. >> he has not handed the ticket over. he has kept the ticket. >> and the reason that he has kept the ticket is for the dog to come. >> yeah. >> but that is past the -- that is past the traffic stop. >> you're not applying a formal test. i thought you were saying it's a formal test. when you deliver the ticket is the termination point but that's not right. >> no. >> so what is the test? >> the formal test -- >> how long a normal traffic stop would take? >> the formal test -- no, your honor. that would not be the case at all. the formal test is when the mission has been accomplished. if you pull someone over for the traffic offense. and in fact you do all of the tasks that are necessary to complete it. when it is completed, it is done. >> what if the officer says, i need to think about this for a

while. >> the officer says i need to think about this for a while. i'm going to go back. i am going to ponder how long it took you. i am going to think about other tickets that i have given in the past. the dogs are going to be here in eight to ten minutes. i think i need about ten minutes to think about it. stla okay since he has not written it yet? he waits till he has thought about it for a while to write the ticket. >> no, your honor. that's not okay at all. what has to happen is the officer must be diligent. he must be diligent going towards the investigation of the traffic stop. again, i think we're putting -- if i am the one that started the misleading of this, i apologize. handing of the ticket is not the end-all. handing of the ticket is when the tasks are done. i got pulled over for a driving offense, then it is over. in your example, mr. chief

justice, if he's pondering, then he's not being diligent. if he's pondering, and not being diligent -- >> gee, we ponder all the time and we think we're being diligent. pondering is not diligent. >> unless the pondering is to avoid the diligence. that would be the question. the question then is therefore if in fact the officer is pondering the ticket, says i'm going to wait until the dog comes, you are then extending the time of the stop and it violates the rule that you have -- >> i'm not sure. can he ask for the registration usually when you're stopped he people have told me the officer says license and registration. is that okay? >> i have friends that say the same thing, mr. chief justice. of course that's okay. >> well, what about the registration is pertinent to the traffic stop? >> well what's pertinent about

it is part of the traffic stop is the vehicle itself as well. not only do you have the driver which you're looking at the driver, the driver's history, the car. all of those things are part and parcel to the task towards the offense. >> if you saw the car swerve, what does that have to do with the car? the car was just doing with what the driver did. i don't see why you need the registration of the car. >> what you can do -- no i think, mr. chief justice, i think you do. i think that is part of the investigating the traffic offense. those are things that have been accepted -- and "accepted" might not be the right word. "adopted" as things that you can do in a traffic stop. now, there are certainly times when you go beyond the traffic stop and you have the johnson case. if in fact you go beyond the traffic stop, even

measurably beyond it, then you have violated the driver's rights and it is unconstitutional. the question in that case occurred during the traffic stop. >> mr. o'connor, is this particular traffic violation, was that an arrestable offense? >> no. under nebraska law, no, your honor, it was not. it's a traffic infraction. >> because if it was an arrestable offense, they could arrest the driver and then impound the car and do an inventory search. >> if it was an arrestable offense, yes, your honor. i think that's correct. >> but you're saying it's not an arrestable offense. >> it is not. and regardless, he was -- see, here's what we do know about this case. not only do we know the mission is done because of the tasks

that were completed, you have the officer that says, i've done the task. everything that needs to be done with this offense -- or with this traffic stop is finished. it's finished. there's no question about that. then there's no more justification. in order for the driver to continue to be detained, there must be new justification or consent which you did not get in this case but you must let the driver go because you are at the end. you are finished with the traffic stop. you are finished with the reason that he was detained in the first place. the purpose going across the fog lines. >> can i just ask you a simple question? yes, we've permitted a dog search but in the cases that we have, sobalace and others, it was done simultaneous with the traffic stop, correct? >> correct.

>> you said in your brief, a dog sniff is not a police entitlement to which the fourth amendments limits must bend. is there a line that we should draw at how long citizens should be kept by the side of the road? >> i think that the -- all right. >> so announce what that line is. that's what i think everybody is asking you. >> the line is -- i can start off with perhaps the johnson case again. when the stop is basically -- when the stop is done. >> why don't you just do a simple test. if you're going to do a stop, you can't reasonably extend or pass the time it takes to deal with the ticket, correct? that would be the simple rule? >> i think that the simple rule if i may propose one is the same one that professor lafave has proposed.

about a traffic stop. or a simple stop. basically what you do, the officer sees the infraction. the officer pulls the person over. the officer tells the person what the infraction is. he does the license, at the does the registration, runs the car. when that is done, he gives him the ticket, the warning ticket. that is end of the traffic stop. there's no other reason to hold the person after that point in time. >> you say he runs the car, he puts the license plate into the radio and waits for the report from the station as to whether or not the license is okay? >> yes, your honor. >> why is that part of the mission and the dog sniff is not? that's the question. if you're not going to have a formal rule, you have to explain why somebody is pulled over for a broken taillight, why adding any time to the stop in order to do a records check is part of the mission but the dog sniff is not. i could understand the rule. you pull somebody over for a

broken taillight. maybe you get the registration and maybe sure you write out the ticket to the right person and then you give them the ticket and that's it. no time for the records check. what does the records check have to do with pulling somebody over for a broken taillight. i can understand that. but is that your argument? >> well, if that is -- that is part of what the courts have accepted as part of the stop. you are looking at the vehicle itself. now the dog, your honor, is different. the dog is different because the dog is not a task related. what the courts have accepted as related to a traffic stop. it is a collateral offense -- or collateral event where you have the dog sniff and do nothing more than look for drugs. >> your answer is -- i don't want to interrupt, your answer is the courts have accepted you can prolong this a little bit to do a records check but then you have to explain why the dog sniff is different. >> you're not prolonging it, your honor, to do a records

check. that is part of the stop. as long as the officer is diligently working towards the mission. >> way is it part? if as the questioning has suggested, it is unrelated to the traffic stop. you're looking to see if this person has a record of committing other crimes, for example. what does that got to do with whatever the traffic stop infraction, not stopping at a stop sign? what has checking to see if the defendant has a criminal record got to do with that. >> that is something that the courts are looking at as to whether that is something that you should be able to do that. the courts have generally accepted that. what i can come back in this particular case is not something that happened in this case because it is clear-cut. now, that issue is extremely

important but it is something that i don't think can be done today. >> he can -- i mean one reason, i think they do the records check the officer needs to know who he's dealing with. i think one of the higher incidences of when officers are shot, wounded is when they make a traffic stop. if you run the registration, you see it's a stolen car, you need to know that before you go back and deal with the driver and other occupants. what if the police officer determines that he's concerned about that either as a general matter or as a specific matter he takes the license and registration but he's not going to go back to the car until he has back-up. okay? so he calls ahead and says i would like back-up. and the person says it is going to take 25 minutes. he says fine. is that a legitimate reason? the traffic stop is not over. because he doesn't want to go back because he is alone and he doesn't know who these guys are. >> that's a legitimate reason. >> okay.

so what if the back-up is a kay canine unit? >> the canine unit gets there. you have told us it hasn't been prolonged and as the officer goes up to give the warning, the dog walks around the car. is that all right? >> i think that's all right because the reason you have diligence of the officer. officer safety is certainly a reason to ask for back-up. once the back-up is there the officer then completes the traffic offense. everything is done. and, before that, the dog has run around. i don't think that there is a problem with that. because the delay was for a legitimate reason. not putting the ticket in your pocket. if there are no further questions, i will request the remaining for rebuttal. >> thank you. thank you counsel. ms. anders.

>> mr. chief justice, and may it please the court. in order to avoid the arbitrary results that petition's bright line rule would impose on traffic stops, a dog sniff conducted during a traffic stop should be subject to a reasonableness analysis. whether this -- >> how long is reasonable? you keep saying in your papers you have to look at the totality of the circumstances. but i don't know what that means. i think that keeping me most of the time -- and chief, i've been stopped. keeping me past -- >> so have i. >> keeping me past giving me the ticket is annoying as heck whether it's five minutes, ten minutes, 45. but how do you define de minimis? what are the circumstances that would make any difference in hoilding somebody five minutes or 45? it all has to do with your needs. not the passenger' needs. >> well, if i could explain what the reasonableness approach is.

first of all it's not a approach that focus on the amount of isolation. it's a question about the objective reasonableness of the length of the stop. >> to accomplish what. go into their home and search their home? is that okay? >> the reasonable length of the stop is the amount of time that -- a stop is reasonable even if it includes a dog sniff if its duration is within the amount of time the range of reasonably -- reasonable routine traffic stops that don't involve dog sniffs. we're talking about a length of time that's still tethered to the traffic violation purpose of the stop. so in addition to not exceeding the sort of heartland of routine traffic stop durations, the officer also has to be reasonably diligent which means he has to be focused overall. >> what's the heartland of routine traffic stops? you have a minute criteria? what is it? half-an-hour. >> i think within the universe of routine traffic stops, there is a range. courts have applied a reasonableness analysis to

routine traffic stops for 30 years. >> what is it? i want to know what it is so i can complain when it is longer. >> it depends upon the circumstances presented during a stop. for instance a stop may take longer if there are more people in the car so that a officer has to check the criminal histories of more people in the car. he has to be more worried about officer safety. >> how many minutes when there are three people in the car? you got to pick a minute. don't you have to pick a minute sooner or later to decide these cases? >> no, i think in every case the court has to look to the totality of the circumstances. >> and pick a minute. >> so it's not possible to pick a minute in the abstract. because even -- >> what more do you need? there are three people in the car. he's stopped for a broken taillight. >> as we said in our brief, when that situation occurs courts have upheld stops to up to 35 minutes. something like that. >> the problem -- i have a great idea. why don't we say taking your test, that the stop, you can do

whatever is normal there, but it cannot be prolonged more than the time reasonably required to sxleet complete the mission, which lapse to be giving a temporary traffic ticket, or we could say it cannot last longer than it necessary to effectuate the purpose of the stop. what an original idea i have had. it's language from two cases we have already set. are you saying anything different? i don't think so. if so, what? if not, since this is a case where apparently the lower courts have said it did last longer than was reasonably necessary because the policeman said that's why -- i mean in effect said, according to the judge, i called the dog after the stop was over, or something like that. we cite those two cases. say those are the tests. affirm -- or reverse, i guess. qed. good-bye, we say to all the

litigants and hope you're happy. when i hear you say that, it sounds like that's what you think we should do. but i suspect you don't but i want to know why. >> well, we think the amount of time reasonably required to complete a traffic stop is the duration it takes, looking to other similar stops, it's the duration. >> it is the time necessary to effectuate the purpose of the stop or it is the time that is reasonably required to complete the mission. we can't do better than that. how can we? we're not traffic policemen and our experience on stops comes from, unfortunately, being the stoppee rather than the stopper. >> right and stop and fall within that reasonable time frame. >> okay. so that's the end of this. of course if it's in the middle of it you call the dog and so forth, but you can't prolong it beyond the time reasonably necessary. now, i have said that several times. i think you may agree with that.

>> if you do agree with it, here it was prolonged more than reasonably necessary at least that's what they found. end of case. >> i think looking to whether the dog sniff occurs before or given, well dispositive significance to the officer's sequencing decision as he gives the ticket. as i understand petitioners position it is in the midst of a traffic stop, let's say it lasts ten minutes, the officer spends one minute on a traffic stop that is okay even though it has incrementally increased the length of a stop but then you have the same stop where the officer gives the ticket first and adds -- >> there are a lot of problems with any rule based on reasonableness and of course, there will be difficult problems. but here we've said twice that once the stop is over -- i679e,

goes beyond the time reasonably necessary to complete the mission -- you can not call in the dogs. and before you can. now, of course there will be anomalies in that respect. of course there can be bad faith exercises. of course there can be confusion as to which is which but that's inevitable in the situation and we can't do anything about it. now, what can you suggest that would just help us and show we could do something about it? >> well, i think it's a pretty serious anomaly. >> well, it may be but i'm asking you what is it that we could say better than the language of the two cases? i'm not denying there is a problem with what you just said. there is. you might decide to do it beforehand and do all kinds of excuses. you know people every day of the week make up reasons but if you want a better rule than the one laid down in the two cases, what? >> well, i think there are two ways to understand the language in the cases you're referring to. one as i think you're suggesting

that the time reasonably required to complete the traffic violation means that time and nothing else. so that any delay attributable to a dog sniff, as opposed -- >> no, i don't think you have to do that. you get into arguments about it. was it reasonably necessary or not? is it's the cannot be prolonged beyond what the time that's reasonably necessary. it is difficult sometimes to decide what is reasonably necessary. >> once we accept that a stop can be incrementally prolonged for purposes of a dog sniff, if that dog sniff occurs during the stop, so that the officer is doing nothing but that dog sniff. he's adding one minute to a ten minute dog sniff then the question would be whether that 11 minute total stop is reasonable. that's the exact same intrusion that would occur if the officer decided to do all of the traffic related tasks first. that took ten minutes and then he did a dog sniff immediately afterwards. that's an 11-minute stop. it is exactly the same intrugs

and intrusion and it should be subject to reasonableness analysis. >> can i get a little clarification on your argument.reasonableness analysis. >> can i get a little clarification on your argument. if i understand what you've been saying, you are accepting the idea. that the dog sniff is something that's extraneous to the mission of the stop. is that correct? >> we're not suggesting that's an ordinary incident of the traffic stop. >> it's not an ordinary incident. >> but since the court said that a dog sniff is permissible to performing stops, sometimes we think that the analysis as to when it is permissible -- >> right i'm not getting there yet i just want to understand because some of the questions have focused on what is a stop? what's the mission of a stop? what's entailed in the normal stop? and you're not contesting that a dog sniff is not something that's entailed in a normal stop even though there might be occasions when you can do a dog sniff attendant to a stop. >> i think that's right but as other members of the court have suggested, once there's probable cause to stop someone. >> suppose you have a police department, it's in a small

state, they have every police cruiser has a canine and they make it just as common to, you know, to check on the license plate, call in to see if the person has any prior convictions, so also, they always take the dog around the car. it's a routine part of a traffic stop. >> i think it would be permissible for them to do that as long as within each stop it fell within the reasonable amount of time it would take for a routine traffic stop. >> including the time for the dog sniff. >> i think we would not include the time for dog sniff on the baseline -- >> why not? why not? >> well, i think -- >> that's what a routine traffic stop is for that jurisdiction. >> well, i think our point is once there's probable cause to perform a site of legitimate investigative inquiries that if the officer can do other

investigations during that time then it ought to be constitutionally reasonable to th can do other investigations during that time then it ought to be constitutionally reasonable to er can do other investigations during that time then it ought to be constitutionally reasonable to do that. that's what the courts of appeals have held. >> okay. but i thought the position that i have tried to say -- let me state it more clearly. i think. it is unlawful to have the dog sniff where the dog sniff unreasonably prolongs the stop. is that okay with the government if i write those words in an opinion? >> that's right. we don't think a dog sniff performed right after the ticket per se unreasonably pro longz the stop. if i could give you a hypothetical. >> ah. well, how, if the ticket writing is over, and there is nothing else to do and the policeman says, hey, this is over. at that point has it not unreasonably prolonged the stop if the sniff takes place afterwards? >> i don't think so.

>> because? >> it takes only two minutes. and that's not unreasonable. right? big deal the dog walks around the car for two minutes. it's only a violation of the fourth amendment for two minutes. right? the reason i don't understand -- i don't understand when you talk about prolonging the stop. are you talking about here is the amount of time that you are needing for the traffic stop and you're allowed to prolong it sometime after that or is it that the sniff is part of the time for the stop so you're not prolonging it at all, you're including it. you're wrapping it up in the stop. >> no, i think we admit that the dog sniff can prolong the traffic stop that it is not routine part of every single traffic stop. we're not trying to make that argument but i do think that just because a dog sniff prolongs a traffic stop by some incremental amount of time doesn't mean the traffic stop is per se unreasonable. >> it can prolong it a little bit. >> what else besides we have the

extraneous dog sniff doesn't relate to the traffic violation, what else? could the police say i have taken the time i have needed to look into this traffic violation but we're in a high crime neighborhood. so i would like to keep this driver a bit longer. so i can interrogate him about what other things he might have been doing. it's not going to take eight minutes. but traffic stops, taking care of that, and now instead of having the dog come, the police officer says i have a few questions i want to ask you. >> the court held in arizona versus johnson that questioning

about an unrelated matter is not -- like a dog sniff, it is not an independent fourth amendment intrusion. again, i think the only interest at stake from the individual's point of view is the interest against unreasonable delay. and since that is the case, i think that the officer can incrementally extend the stop so long as the duration of the stop -- >> to me, we are. the -- what about this? i see your problem is -- you said, well it can't prolong the stop, the traffic stop more than reasonably -- it has to be, you know -- take the time reasonably required to complete the mission. that's what it says, complete the mission. so we have the intermission prolongation which has to be reasonable and we have complete the mission. so complete the mission. once the mission is completed, it's over. that's language from the opinion, too. complete, complete.

good-bye, over. at that point, it becomes a violation of the fourth amendment. >> and that will lead to arbitrary results. if i could give you a scenario where that could occur and i tell you why officers often need to end up to do a dog sniff after the ticket. the hypothetical that i propose is you imagine you have two officers conducting a stop. the first officer is explaining the ticket and what's happening with the ticket to the person -- to the driver while he's doing that, the second officer is performing the dog sniff around the car. if the officer who is explaining the ticket ends first and the dog sniff takes another 30 seconds, i don't think there is any reason to say that stop that maybe lasted a total of ten minutes has gone on for longer than reasonably required. >> well, i have real fundamental question. this line "during" is only here because we've no you created a fourth amendment entitlement to search for drugs by using dogs

whenever anybody is stopped. because that's what you're proposing. is that really what the fourth amendment should permit? >> i don't think it's an entitlement. once the court said that it is permissible in some circumstances to perform a dog sniff during a traffic stop -- >> why don't we keep it there which is when it's being done simultaneously with writing the ticket. if it's not, then it's unlawful. >> well, because that leads to arbitrary results as i was explaining with justice breyer. it is not arbitrary. the foushtrth amendment is arbitrary by its nature. it says, you can't search unless you have probable cause to search. >> well, petitioners rule would say that the hypothetical i propose is impermissible in every circumstance that even a 30 second extension of a short traffic stop is always unreasonable even if that stop falls within the amount of time

it usually takes to do routine traffic stops. >> ms. anders? i'm sorry. please. >> and the officer is reasonably diligent with respect to the traffic mission. >> you know, i think i read it differently than you. here is what i think the case agrees with you on and here is what it doesn't. it definitely agrees with you on that a dog sniff is not part of the traffic stop. so i think that you and the case are definitely in the same place there. and the case definitely says that even though a dog sniff is not part of the mission of the traffic stop, we're going to allow a dog sniff if the dog sniff doesn't extend the traffic stop. it's like there are two officers or there's some other reason, why you're not being detained a moment longer because of the dog sniff and that case basically says sure thono harm no foul on that one. then you say cabales gives you that extra leeway to detain

people even though it is longer than an ordinary traffic stop would take. i think that's just not right. i mean i think that reasonableness language in cabales is it is all about an extra limitation that the court says. it says like don't think just because this officer was really slow and it took a really long time to do the traffic stop and he was able because of that to get another officer in and do a dog sniff and it was all -- it's like an additional limitation that no, you have to be diligent and you have to be reasonable in the way you conduct the traffic stop. if you're not, the dog sniff can't come in even though it was conducted during the time the traffic stop occurred. but that's additional constraint. it's not some kind of extra leeway for the police officers to do things outside the bounds of the traffic stop itself. >> well, i think that's one way

to read the language. the reason we don't think it's the right way is we know that a dog sniff is not an independent fourth amendment intrusion. it's not a search. we also know that it doesn't violate any independent scope limitation. >> it's not a search but the theory of cabales and with all of our questions is that you case -- and with all of our cases is that you really can't detain somebody if you don't have some kind of objective, reasonable basis for doing so. and that any detention and, you know, it might be ten minutes, it might be five minutes or two minutes without that kind of basis, is a fourth amendment violation. >> but once the individual is already being detained for a traffic stop on probable cause, i think the implication is if the dog sniff takes any time than the intrusion we're talking about is the incremental delay.n the intrusion we're talking about is the incremental delay.en the intrusion we're talking about is the incremental delay. it's a temporal intrusion. so from the individual's

perspective, her interest -- it's the same in avoiding the dog sniff as it is in avoiding a warrant check or any other incident of a stop. because that's the case, we think delays attributable to dog sniffs should be treated like a delay attributable to a warrant collection or anything else. >> you've used several times the phrase incremental. in my -- i sense that it being less than. right? if the actual traffic stop is five minutes, then you wouldn't say a 15-minute dog sniff is incremental. so does the dog sniff have to be less than the traffic stop? >> i think that one of the things that courts should look to is the relative proportion of time of the dog sniff to the rest of the stop. the reason i think that's relevant is the officer, this is the case in routine traffic stops as well, the officer has to be reasonably diligent. i think they can take into account whether the officer is predominantly working the traffic violation. if he's able to do a dog sniff within a reasonable amount of time and not have the traffic stop exceed the duration of a reasonable routine traffic stop then he ought to be able to do

that. >> is that almost always the case that the dog sniff is going to take longer than the traffic stop? i would assume so, the officer says license and registration. goes back checks them, comes back and gives you a ticket. dog sniff is something else all together. assume being the dog is there. they have to walk around the car. incremental, i'm not sure it's hardly ever going to be reasonable. >> well, the dog sniff itself is a matter of seconds. in the cases it takes anywhere from 30 to 90 seconds to do a dog sniff so it is something that can be an incremental delay. >> if the dog happens to be there, i guess. >> well, even in a situation where the dog isn't there already. if the officer calls for the dog early enough and the dog arrives. there are situations in the cases we cited this and note 20 of our brief you have the dog arriving just as the officer is about to give the ticket. so that is a scenario that can occur. i do think there are several reasons why an officer may want to give the ticket first and then do the dog sniff immediately and one is officer

safety. i think everything that an officer does during a traffic stop, how he orders his tasks and how he pr formserforms them is infused with office safety considerations. it can be a safer thing to use the ticket, need to explain the ticket, as a non-confrontational way. >> i see. another aspect is i was seeing it the way justice kagen described it. one virtue of that but you may not think it is, is administrative. what do you tell the police department? say, well, when you're in traffic stops, can you use dogs to sniff? yeah. you can. but, remember, once it's over the traffic stop, it's over. done. finished. and by the way, if it isn't over yet, you still may get into trouble if you're unreasonably prolonged the stop just to get the sniff. now that seems pretty easy to explain.

it's fairly bright line. as soon as you get into this other, just leaving it totally open, there's no check, really on the -- not too much of one. now, i'm putting that to get your response. >> so as i understand it, you're saying that -- this is subject to a reasonableness analysis that the officer can do a dog sniff and he can prolong the stop -- >> i was saying two parts. part one, traffic stoppers, you can use a dog sniff when you stop. but not once the stop is over. period. unless you have cause or something. and during the stop, that's part two. you can't prolong it but for a reason to have to do it all within a reasonable time. okay? you can't unreasonably prolong it to get your dog in. see? you tell them those two things. once you've told them the two things, they've got it in their heads. when this is over, good-bye dog.

when it's not over, they better be careful not to unreasonably prolong it. now they'll understand that and it will be both protecting what the fourth amendment protects and also i think, giving them enough leeway to conduct a traffic stop. >> well, so that makes the officer's sequencing decision entirely dispositive of whether the dog sniff can occur. before the stop fine. if after the stop, then not. but from the officer's perspective, i think there's an interest in officers having some leeway to sequence the traffic stop. >> the way justice breyer has said this, what he's saying is you can't unreasonably prolong it. you can't hold a person any measurable time that was in there to get the dog. and yes, it has to do with the resources the police department but we can't keep bending the fourth amendment to the resources of the law enforcement particularly when this stop is

not -- is not incidental to the purpose of the stop. it's purely to help the police get more criminals, yes but then the fourth amendment becomes a useless piece of paper. >> i think if you take what i said and take your answer, i have to say your answer is right. it's just a bad effect of my rule. the virtue of the two part rule is what we said is the virtue of it. it's like many cases, there just isn't much more to say. am i willing to run this, they might purposely change the sequence. they might. that's true. somebody might. i don't know what to do about that. the answer is i couldn't do anything about that. >> well, we think there's a law enforcement interest in officers having leeway to sequence the stop the way they see fit. i was explaining the reasons that an officer might want to give the ticket xrar

contemporaneously before or after. >> suppose, ms. anders with hypotheticals, the police officer pulls somebody over and starts the process. then the police officer says, you flow i'd like to take a cigarette break now. cigarette probably takes about as long as the dog sniff took in this and he just, you know, smokes a cigarette and he goes back to work. all right, would you say that that was unconstitutional prolongation of the stop? >> well, an officer always has to be reasonably diligent so if the officer takes breaks for no valid law enforcement reason that is going to be dilatory and so the stop would become unreasonable. >> okay. so it would become unreasonable because there he was, he wasn't doing anything related to the mission of the stop. that's true, if he gave the ticket and then said, i want you to stay while i take a cigarette break, or it's true, if he did it before he gave the ticket, either way. i guess what i'm saying to you is i kind of think it's the same

thing, is that once you've acknowledged that the dog sniff is something that's extraneous to the stop itself, it's obviously more helpful to the police than a cigarette break but it's extraneous to the stop itself, then the same rules apply as if the police officer had just taken a moratorium on the stop in the middle in order to conduct his own business. >> i think when a traffic stop is occurring when an officer has someone stopped we don't expect them to ignore potential evidence of criminal behavior. in fact they'd be remiss if this did. if the officer is able to do a dog sniff within a reasonable amount of time it ought to be constitutional -- >> but then you really are saying because we have a reason to pull you over for a traffic stop, that gives us some extra time to start questioning you about other law enforcement related things and to do other law enforcement related

business. and i never thought that that was the rule. i always thought is that once the objective basis for the stop dissipated, that was it. >> i think if you take unrelated questioning for instance, questioning about other criminal activity, i think there's a strong law enforcement interest in officers having some leeway to pursue this within a stop. >> you told me that the officer could do that at least that's what i understood your answer to be. >> that's right. the officer can do that. i think it's important that the officer have some leeway so long as the overall time remains reasonable. if you think about questioning if the officer starts a question about where the person is going, and that kind of thing we don't want officers to make finely tuned judgments in the moment about whether the next question he wants to ask is sufficiently related to the traffic mission or not. that's why we think there needs to be some leeway for officers to take some time to pursue the

things that they observe as long as they can do that within the amount of time that would be reasonable in a routine traffic stop. then we think it should be constitutionally reasonable to do that. i will say that i think the reasonable analysis allows them latitude. under petitioners view, even 30 seconds of a traffic stop for a dog sniff would be unreasonable in every case. >> what your rule will lead to something along the lines, everybody will decide 30 or 40 much minutes, i think you say at one point in your brief, is reasonable for a traffic stop. and if you see a taillight violation, that's 40 minutes of free time for the police officers to investigate any crimes that they want because they can do it all in the range of what you've decided is kind of the reasonable traffic stop. >> i don't think that's how we envision the analysis going because the ultimate length of time has to be within the duration of a routine traffic stop that doesn't involve a

dog sniff. that will vary based on the circumstances. routine traffic stop, what's reasonable varies based on circumstances. so what we think courts can do is they can look at what the officer actually did and look to stops involving similar circumstances but not dog sniffs and determine whether the officer was able to do the whole thing within a reasonable amount of time. i think that's essentially what the court contemplated that with these fourth amendment inquiries that they are fact specific but the harder cases will be appealed and there will start being guidelines. the courts can look to similar cases. we think the same thing can happen here. indeed it already has happened with respect to unrelated questioning. the vast majority of courts of appeals have said you can extend a traffic stop for questioning. was the officers diligent? the same thing should happen here whether the dog sniff is before or after the ticket. any further questions? >> thank you miss anders. mr. o'connor, you have six minutes left.

>> thank you justice breyer. it was much better than i said it. i think the point was well made. >> what do you think about her response? because i thought it was -- she has an interesting point. i mean the important point. she said you know, the trouble with what i said which was you think is okay? she said it's -- here's what's really going to happen is that the police will think gee i just better be sure those dogs get here in time. and so what they'll do is tend to prolong the stops. and they'll want to be sure the dogs get there. and so if you really added all this up and thought about it even experimentally the class of stopped drivers where there are hunches is going to end up waiting longer and being in custody in a sense longer than if we follow her approach, and her approach is just to say

hey, apply reasonableness across the board. a few extra minutes isn't that big a deal. i took her answer to be something like that and i thought it was -- it is a point. it is a point. so what do you think? >> well, we hope that if you look at officers' diligence, there are things that will help enforce that. one is the community. will the community start to accept 40-minute stops? will the law enforcement officer himself expect that i'm going to stop being a police officer for two, three, four minutes when there's other things going on? i think that's very very significant. reasonableness. reasonableness stops when you have the stop end. at that point in time, reasonableness has nothing more to do with it because the person should be released until there is another reason, another purpose, for the stop. a reasonable, articulable suspicion, or you have consent.

otherwise, it is done. here's the problem with the reasonableness. there was the statement that was made that it is not reasonable -- doesn't give the officers enough time. we're not talking about the fourth amendment and the officers and open season on the officers and what the officers can do. we're talking about the fourth amendment and the protections that it has on the driver. you don't look at well it's only going to be a minute longer if you do it this way. the fourth amendment shuts it off whether it is done. >> i'll say about the questioning that took place in this case, where are you going, are you going to buy a car someplace? all of that. was that -- was that part of the mission? >> we didn't raise that, your honor. is that part of the mission? it is something that hasn't been challenged.

it has been accepted as being part of the mission. i will tell you that's what the courts say that has been accepted as part of the mission. i have lots of questions before as to what is part of the mission and how far you go. that's for the courts to determine. my response, your honor -- zblrone of those courts is this court. that's what i don't understand about your position, is definition of the mission. i can understand a definition that says just what you need to do to resolve the traffic violation. period. but it includes other things, like questioning about where are you going to buy a car and all that, or doing a records check. i don't really see why -- i want to know what the difference is between that and having a dog sniff. >> well, the other things that are tasked in part of the traffic offense where there's no doubt. there's no doubt that a dog sniff is not part of the

offense. that's collateral and it is nothing but an investigation. now, the last thing that i would like to do justice ginsburg has answered your question as to the 8th circuit and the 8th circuit did not make a decision as tots probable cause. but you do have a court that did. the trial level court did make that decision. it made the decision that it was probable cause -- >> it was only a hunch, but that would ordinarily be reviewable by the court of appeals. court of appeals didn't get to it. so it is an open question for the court of appeals. >> if it can go to the court of appeals. but this is -- i mean you have the question that it was based on a hunch. but you give the discretion to the magistrate who heard the evidence. the magistrate had a question as to the credibility of this witness. and if you have a question as to the credibility of the witness then there is not sufficient

facts to to be able to make a determination as to whether or not in fact there is probable cause. we would ask the court to adopt the finding that there is no probable cause. that is something that you can probable cause. that is you can ugh do as the reviewing court. because the facts have been established. we know that judge had problems with the credibility of the witness. the facts that are left is not enough to establish any type of reasonable suspicion. what we do for judicial economy is you make the decision here, now. because the 8th circuit would have to do the same thing. the 8th circuit would have to make a decision based on the magistrate's finding of lack of credibility. and that is why i would ask the courts to do today. >> thank you counsel. case is submitted. >> all this week, c-span2 has

been showing historically black colleges and universities. today is tuskegee in alabama. and then xavier university in louisiana. and while congress is on its president's daybreak this week. we're showing american history tv in prime time. tonight japanese internment during world war ii. and the living conditions in camps in arkansas and wyoming. and 8:20 lectures in history with reports on how the press handled the japanese internment. and the taking you through the japanese american museum. and at 9:55 oral history with former congressman normal mn minetta who was assigned to a japanese internment camp with his family. the bashed wire and guard wires

are gone but the memories come flooding back for so many people who, until today, has lost such a big part of their childhood. for many released after the war, some buried the memories. and with it the history of this camp. now more than 60 years later. >> this sunday on q&a. jan russell on the only internment camp in crystal city camp. and what she says is the real reason for this camp. >> the government somes and says we have a deal for you. we will reunited you with your family internment camp if you will agree to go voluntarily. and then i discovered what the real secret of the camp was. they also had to agree to voluntarily repatriate to germany and to japan if the government decided they needed to be repatriated.

so the truth of the matter is that the crystal city camp was humanely administered by the ins. but the special war divisions of the department of states used it as roosevelt's primary prisoner exchange. it was the center of roosevelt's prisoner exchange program. >> sunday night at 8:00 eastern and pacific on c-span's q&a. the senate education committee

i am the chairman and patty minded me she is a teacher so we will start on time. welcome. senate committee on health education labor and pensions will please come to order. this morning we have a hearing on fixing no child left behind testing and accountability. there is a lot of interest in this hearing. we have heard from people around the country ever since last week when we put a draft working paper up on the website. we have a lot of people in the hall. i would say to those in the hall who are not able to get in the room we have an overflow room, room 538 so you are able to listen to the proceedings. so if someone would let those outside know that then they have a chance to listen to testimony and questions. we welcome them and everyone here. ranking member murray and i will each have an opening statement and then we introduce our panel of witnesses. then we have a round of questions. we ask our witnesses to summarize their testimony please in five minutes each because the

senators will have lots of questions. i'll call on the senators in order of seniority. at the time the gavel went down and who are here. after that they will go on the order of first come first serve. we will conclude the hearing at noon or before if we get through earlier. and in my opening remarks they take a little longer than normal since this is the first meeting of the committee in this congress. i promise my colleagues i won't make a habit of that. and i will keep my questions to the same five minutes that everyone else has. first some preliminary remarks about the committee itself. this committee touches almost every american. no committee is more idealogically diverse and none is more productive than this committee. last congress 25 bills through

this committee were signed by the president and became law, some very important. that is because chairman harkin and i work to find areas of agreement. i look forward to working in the same way with senator murray. she is direct and well respected by her colleagues on both sides of the aisle. she cares about people. she is a member of the democratic leadership and result oriented. i look forward to that working relationship. we will have an open process which means every senator regardless of party affiliation will have a chance to participate, full opportunity for discussion and amendment not just in committee but on the floor. i mean, when our bills in the last congress never got brought up on the floor but this year we want a result and that means go to the further and further amendments and further discussion. that means 60 votes to get off the floor. it will be a bipartisan bill. if it goes to conference we know the president will be involved. we want his signature on our bills.

all the way through we will do our best to have input from everyone so we can get a result. the schedule of the committee generally will start with unfinished business. first fixing no child left behind. this is way overdue. it expired more than seven years ago. we posted a working draft last week on the website. we are getting a lot of feedback. staffs are meeting exchanging ideas. we will have more weeks of hearings and meetings but we have been working on this six years. we have had 24 hearings over the the last three congresses on k-12 or fixing no child left behind. and almost all of the members of the committee this year were members last year. so we hope to finish our work by the end of february and have it on the floor. i say it is important to do that so we can get floor time. no child left behind took six or seven weeks when passed in 2001. we would like to have a full opportunity for debate and

amendment. second reauthorizing higher education. this is for me about deregulating higher education, mabing rules simpler and more effective for example student aid loan forms so more students can go to college. we can finish the work that we started in 2013 on student loans. we can look at accreditation and look at deregulation. the task force that was formed on deregulation will be the subject of our hearing on february 24. as rapidly and responsibility as we can we want to repair the damage of obamacare and provide more americans with health insurance that fits their budget. on this issue we don't agree among party lines but first hearing is on the 30-40 hour work week. we will have a hearing tomorrow on that and will report our

findings to the finance committee. then some new business. let's call it 21st century cures what the house calls it. it finishes its work this spring on that issue. the president talked about it last night. he is also interested. i talked with him about it. he is interested in all three of these subjects that we talked about. fixing no child left behind, finishing our work on higher education and 21st century cures. i like that because i like to find those areas of agreement. we hope we can have a legislative proposal that he will be glad to sign. what we are talking about here is getting more medicines, devices and treatments through the food and drug administration more rapidly to help millions of americans. now, there will be more on labor, pensions, education and health. these are major priorities and that is how we will start. one other thing, the president has made major proposals on

community colleges and early childhood education. these are certainly related to elementary and secondary education but we always handled them separately. we can deal with the community college proposal as we deal with higher education. we will have to talk about how we deal with early childhood education. to do that in a comprehensive scart and the grant we dealt start and the grant we dealt with in the last congress. now to today's hearing. and i said some more of my colleagues are here today i said i would not be as long in my opening statement in future meetings but this is the first one. last week secretary duncan called for the law to be fixed. almost everyone seems to agree with him. it is more than seven years overdue. when we started working on this we did this republicans, democrats six years ago former representative george miller

said let's identify the problems. let's pass a lien bill and fix no child left behind. since then we had 24 hearings on k-12 or fixing no child left behind. in each of the last two congresses we have reported bills throughout the committee. i would say to my colleagues at congress before last it was mainly what one might call a democratic bill but we voted for it to get it to the floor and continue to amend it. 20 of the 22 of us on the committee were members of the last congress when we reported the bill. 16 of the 22 of us were in the previous congress when we reported the bill so we ought to know the issues pretty well. one reason no child left behind needs to be fixed is it has become unworkable. almost all of america's 100,000

public schools would be labelled a failing school. to avoid this unintended result the u.s. education secretary has granted waivers to 23 states including washington which has had its waiver revoked as well as district of columbia and puerto rico. this created a second unintended result by congress which has stated in law that no federal official should exercise any direction, supervision or control over any curriculum or administration of any educational program. in exchange for the waver rrs the secretary told states how they should measure progress, what constitutes failure for schools and what the consequence of failure are and how to evaluate teachers. their department has in effect become a national school board or as one teacher told me it has become a national human resources department for 100,000 public schools. at the center of the debate about how to fix no child left

behind is what to do about the federal requirement that states each year administer 17 standardized tests with high stake consequences. are there too many tests? are they the right tests? are the stakes for failing them too high? what should washington, d.c. have to do with all of this? many states and school districts require schools to administer additional tests. now, this is called hearing for a reason. i have come to listen. our working draft includes two options on testing. option one gives flexibility to states to decide what to do about testing. option two maintains current law regarding testing.

both options would continue to require annual reporting of student achievement disaggregated by subgroups of children. washington sometimes forgets but governors never do that the federal government has limited involvement in elementary and secondary education contributing 10% of the bill. for 30 years the action has been in the states. i have seen this first-hand. if you forgive me for pointing it out, i was governor in 1983 when president reagan's education secretary issued a nation at risk saying of an unfriendly foreign policy the educational performance we might as well have viewed it as an act of war. the next year tennessee after a long battle with national education association became the first state to pay teachers more for teaching well. then the next two years every governor spent the entire year focusing on education. first time that happened in the national governor's association.

i was chairman of it then. bill clinton was vice chair. in '89 a meeting of governors and established voluntary national education goals. president bush announced america 2000 to move the nation towards those goals state by state, community by community. i was the education secretary then. since then states have worked together voluntarily to develop academic standards, develop tests to create their accountability systems and adopted those that fit their states. i know members of this committee must be tired of me talking until i am blue in the face about a national school board. i know that it is tempting to try to fix classrooms from washington. i also hear from governors and school superintendents who say this. if washington doesn't make us do it the teachers union and opponents from the right will

make it impossible for us to have higher standards and better teachers. i understand there can be short term gains from washington's orders but my experience is that long-term success can't come that way. in fact, washington's involvement, in effect, mandating common core and certain types of teacher evaluation is creating a back lash, making it harder for states to set higher standards and evaluate teaching. as one former democratic governor told me recently we were doing pretty well until washington got involved. if they get out of the way we will get back on track. rather than turn blue in the face one more time in front of my colleagues let me conclude with the remarks of new york's high school principal of the year. she responded last week to our committee draft in the following way. i ask that your committee remember that the american public school system was built on the belief that local communities cherish their

children and have the right and responsibility within sensible limits to determine how they are schooled while the federal government has a very special role in insuring that our students do not experience discrimination based on who they are or what their disability might be, congress is not a national school board although our locally elected school boards may not be perfect they represent one of the purist forms of democracy that we have. bad ideas in the small do damage in the small and are easily corrected. bad ideas at the federal level result in massive failure and are harder to fix. this is carol burris, new york's high school principal of the year. she concludes with this. please understand that i do not dismiss the need to hold schools accountable. the use and disaggregation of data has been an important tool that i use regularly as a principal to improve my own

school. however the unintended negative consequences that have arisen from mandated annual testing has proven testing not only to be an ineffective tool but a destructive one, as well. senator murray. >> thank you very much, chairman alexander for holding this hearing today. i want to thank our witnesses with us. this is my first committee meeting as ranking member of the health committee. i want to start by acknowledging tom harkin and commend his years. he was a tireless advocate for those without a voice and will be missed as we all know. i also want to acknowledge and congratulate our new chairman senator alexander. i look forward to working with you, as well. we have had a number of conversations. as we both adjust to our new roles we have one belief we

mentioned every time we talk and that is we think working together this committee can really get exciting work done in the coming two years. talking to our colleagues i am very excited about what we can do together in the coming weeks and months. i am ready to get to work especially on an issue as important as the topic of this committee hearing, education. in fact, this is the issue that got me into politics. throughout my career first as a preschool teacher and then on a school board in my own state senate in washington and here in the united states senate i have been committed to making sure every child has someone fighting for them and their future. serving on this committee i am looking forward to making college more affordable and reduing the overwhelming burden of student loans, expanding access to early learning and making sure voices of students and parents are heard in the policy making process and in the coming weeks and months i will

be especially focused on fixing the broken no child left behind law. nearly everyone agrees that we need to fix no child left behind. the law set unrealistic goals for schools across the country and failed to give them the resources they needed to succeed. we can't turn our back in the process on measuring students' progress or let schools and states off the hook for failing to provide a quality education to all of their students especially because we have seen some successes since 2001 when congress enacted no child left behind. our graduation rate has increased by ten points among students with disabilities regular diploma graduation rates have increased by more than 12% and dropout rates have decreased by more than 17% and achievement gaps have declined among african-american and latineo students. the federal government has a productive role to making sure

assessments and accountability work. assessments help parents and communities hold schools accountable. if a school is failing students year after year parents and communities deserve to have that information and be assured the school will get the resources it needs to improve. i know there are a number of parents here in the audience today and out in the hall who would agree with that. when it comes to our nation's largest federal investment in k-12 education it would be irresponsible to spend billions in federal taxpayer dollars without knowing if the law is making a difference in student lives. many colleagues demand evidence and accountability in other programs and agree we need it with education, as well. i would be concerned about any attempt to eliminate annual statewide assessments as i would be concerned about any attempt

to roll back accountability to make sure we are delivering on our promise of a quality publication for all. now, 13 years after congress passed this law we should use the research and the best practices and the lessons learned to fix no child left behind. i have heard from parents and teachers as well as community members in the state of washington about the ways the current system doesn't work when it comes to testing. we can and should encourage states and districts to reduce redundant and low quality tests. because we have a national interest in making sure all students get an excellent education we do need federal oversight to make sure our system is working for every child. that means offering the

resources for improving professional development and for expanding access to high quality learning opportunities to help our struggling schools so we don't consign some kids to sub-par education. while we carefully consider changes to assessments and accountability to give states and districts the flexibility they need we can't forget our obligation to the kids. i have laid out my priorities for fixing this broken law. i know chairman alexander has put his priorities out in the discussion draft. i hope we can begin conversations about a truly bipartisan approach to help fix this broken law. i know the members on my side are anxious to work and continue the long tradition of this committee tackling tough problems in a bipartisan fashion. fixing no child left behind should not be a partisan issue. it should be one that we do work hand in hand not as democrats and republicans but as americans. this is an issue that is not about politics. it is about what is best for our kids. in our country we believe that

every student should have access to a quality public education regardless of where they live or how they learn or how much money their parents make. other countries in the world are investing in education. they are working every day to get it right for their students. china, india and others think they can beat us in the classroom. we know better. we know we can win this and we know that we have to. for students back in my home state of washington for our economic future and for our shared vision of an american dream. so we can't afford to turn back the clock on the promise of quality education for all. we can't not be the generation that drops the ball on that noble goal and i'm going to continue to fight to bring quality education to all of our students. thank you and i look forward to the panel discussion. >> thank you senator murray. as we will always try to do we will try to have a bipartisan agreement on witnesses.

we were able to do that today. we ask senator warren and senator bennett to introduce two of the witnesses and i will introduce the other four. >> thank you, mr. chairman. i am pleased to introduce dr. marty west, an associate professor of education at the harvard graduate school of education and deputy director of the harvard kennedy school's program on education policy and governance. dr. west studies education policy and reform and impact on student learning and development. he has authored many articles on the subject including many pieces on no child left behind. last year dr. west worked for this committee as senior education policy adviser. i know there are areas where we agree and areas where we disagree but i am always very happy to welcome witnesses from massachusetts to testify before this committee. thank you dr. west for being here today.

>> senator bennett. >> thank you, mr. chairman and i want to thank you and ranking member for holding this hearing. i often say that if we had a rally to keep no child left behind the same on the capitol steps not a single person in the country would come to that. we are eight years overdue. i am honored to introduce my friend the superintendent of the denver public schools. tom joined as chief operations officer in 2007 while i was superintendent and then was unanimously appointed superintendent in 2009 by a grateful school board who no longer had to deal with me. before joining dps tom served as group vice president where he was responsible for mergers, acquisitions and strategic partnerships. prior to level three he was legal adviser to reed hunt at the fcc. he helped establish the e-rate program. tom began his career as a junior high school english teacher. he claims to speak fluid

mandarinen and can't knees can't knees. i have no idea whether that is true or not. today tom oversees the largest school district in colorado with 185 schools and enrollment of more than 90,000 students and 13,000 employees. when i left denver public schools in 2009 i said if i did a decent job tom will do a better job. no doubt that has been the case. denver public schools is ranked at the top of the state's largest district in student growth. in 2005 denver was dead last. just last year denver public school students eligible for free and reduced lunch had stronger academic growth than nonfree and reduced lunch students statewide in math and writing. and students showed more growth in state counter parts in math by eight points. on top of that the english language learners have outperformed the states.

tom happens to be responsible for educating my three daughters. as we begin to talk about reauthorizing we need to hear the voices of those fighting every day to improve our kids' education. thank you for being here today and we are all looking forward to hearing your testimony. thank you for including me in this. >> i think that boils down to he cleaned up after you left. >> you can't even know half of the truth. >> we are delighted to have you. let me just mention the other witnesses and we turn to them. deputy commissioner of education in new hampshire. mr. henderson testified before this committee before, chief executive officer of the leadership conference on civil and human rights. fourth and fifth grade special

education teacher of the earth school new york city. mr. steven laczar, social studies and english teacher, harvest collegiate high school in new york city. i have asked -- we have your testimony and we have read them, at least i have. we ask you to summarize your testimony in five minutes because we have a lot of interested senators who would like to ask you questions. if you don't mind there is a clock that will show you five minutes. why don't we start with you dr. west and then go to questions from the senators. >> thank you. chairman alexander, senator murray, members of the committee thank you for the opportunity to appear before you today. i would like to begin by congratulating the committee by putting this at the top of the legislative agenda for 114th congress. nothing is more important to our nation's future than insuring we provide all children with opportunity to reach full academic potential. congress can't do that on its own but it can help by

addressing the shortcomings of no child left behind and restoring predictability with respect to federal education policy that state and local officials need to carry out their work. as you move forward with this important work, however, i urge you not to lose sight of the positive aspects of no child left behind, the law's requirement that students be tested annually in reading and math and once in high school provided with detailed information about student's performance in these subjects. the extent to which they have mastered skills that are prerequisite for other educational goals. this has called attention to achievement gaps across entire states and within specific schools. it is ushered in a new era in education research and made it possible to develop new indicators of schools' performance based on contribution to student learning. research confirms that by requiring states to do so no child left behind worked to generate modest improvements in

student learning concentrated in math and among lowest performing students. i say worked in the past sense as the days when no child left behind worked are behind us. as the deadline for all students performing at grade level approached far too many schools were identified as under performing and the system lost its credibility. recent concerns have been raised about the amount of time students spend taking standardized tests. nor do we know how much will be optimal. a handful of recent audits suggest students spend 1% to 3% of the year taking standardized tests, a figure that sounds appropriate.

we also know some schools test far more than this and too many schools spend too much time. the concerns voiced by parents and educators in these schools are legitimate. eliminating testing requirements is not necessary to address the concerns. it is not necessary because federally mandated tests account for half of test taking time. just 32% in a recent ohio study. the rest of the time is devoted to state and district mandated tests and new tests implemented to assess the teacher evaluation system the state was forced to adopt under the obama administration's esea waiver program. it would make matters more difficult because the most important flaw of the no child left behind accountability system is the reliance at the level as the measure of school performance. achievement levels are a poor indicator of school quality as they are influenced by factors outside of a school's control. this approach judges schools based on students they serve, not on how well they serve them.

performance measures based over time which are possible with annual testing provide a fair more accurate picture of school's contribution to student learning. why did congress design such a system in 2002? many states did not test students annually and those who did were not able to track performance of individual students. that situation has changed thanks to no child left behind and related federal investments. it would be ironic and in my view unfortunate if congress were to re-create the conditions that led to the adoption of an ill-designed accountability system in the first place. eliminaing annual testing would all but eliminate school level information about the learning of student subgroups and limit the information available to parents making choices about the school the child attends.

it would prevent from evaluating effectiveness of new education programs when appropriate research design depends on knowledge of recent achievement. my main recommendation is to maintain the testing requirements while restoring to states decisions about design of accountability systems including how schools are identified as underperforming and what should be done to improve their performance. the federal government has a critical role to play in insuring that parents and citizens have good information about school's performance. at the same time the federal government lacks capacity to design a system that is appropriate to the needs of each state and has a poor record of attempting to dictate the required element by focusing on transparency of information about school performance and resources congress can build on successes of no child left behind while learning from its failures. thank you and i look forward to your questions. >> thank you for excellent

testimony, for coming very close to five minutes. mr. leather. chairman alexander, senator murray and members of the committee thank you for inviting me to testify about testing and accountability. i am paul leather, deputy commissioner of education in the new hampshire department of education. in new hampshire we are working to explore what the next generation of assessments might look like beyond an end of the year test. we coordinated with council for priorities of reauthorization. these contain three important ingredients that are in line with the work we are doing. it will continue to support annual assessments of student performance to ensure every parent receives information they need on how their child is performing, at least once a year. it would allow states to base students' annual determinations on a single standardized test or combined results from a coherent

system of assessments. it gives states the space to continue to innovate on assessment and accountability systems so important when the periods of authorization can last ten years or longer. we are working in collaboration with four new hampshire school districts to pilot competency-based systems. we are intent on broadening expectations from simple recitation of knowledge and facts while fostering work study. that is why we have emphasized performance assessments for competency education or pace which is what we call our pilot project. there are several key components in our pilot, development of statewide model competencies that describe knowledge and skills that all students are expected to master, use of personalized competency based approach to instruction learning

assessment and awarding credit, and the use of common and local performance-based assessments of competencies throughout each school year in tandem with great spend smarter balance assessments. i am submitting a detailed summary of all steps we are taking to ensure comparability reliability and validdyity of these assessments as well as a brief description of demographics of the participating districts. second we support annual determinations based on a coherent system of state and local multiple assessment. rather than relying on one to make this determination we combine a series of assessment results to make the annual determination. over the last year there has been a crescendo of voices across the country raising the concern of overtesting. we believe that the overtesting issue has arisen because there has been a disconnect between local and state assessments. i have sat through many school board meetings where the superintendent explains to the board the state test results and

their meaning and then describes their local assessment. these two sets of assessments and two accountability systems in some cases are redundant. our pace pilot braids these together. the result is less assessment overall with a more coherent system which provides benchmark information without sacrificing more actionable information at the classroom level. because of our work advancing competency-based learning model we understand the importance of creating freedom to innovate. starting with intensive professional development to raise the assessment literacy of our teachers. we are not ready to take it statewide but we hope to in the future. in new hampshire the live free or die state we believe that it

is essential that local educational leaders help build the new system through innovative efforts. it is the combination of state and local creative collaboration that helped us build a new stronger more effective assessment and accountability system. we applaud the draft version section k that allows for a locally designed assessment system in option two. however, we also believe that congress should establish parameters in the reauthorization to ensure that locally designed systems do not result in a step backwards for students. we expect assurances of technical quality and assessments necessary be put in place. within a state local districts wishing to innovate should be able to demonstrate that they are able to focus on college career outcomes and are committed to improving achievement. they should maintain a clearly described internal accountability process and have leadership necessary to effect substantive change process. with these parameters in place

we believe that educational improvements and innovative design will flourish throughout the life of the coming reauthorization. we in new hampshire greatly appreciate the opportunity to have our innovative educational practices considered by the committee. we look forward to the future of a speedy authorization of improved elementary and secondary education. >> thank you for this opportunity to be with you here this morning. my name is tom boesburg. i am superintendent of denver public schools. we have seen remarkable progress in the last decades under reform started by senator bennett at a time when he had a job with truly complex and challenging policy issues to grapple with. in tha