Supreme Court Allows Drug Dog Vehicle Searches Without Cause 

 
 Rockland County, Missouri,
drug dog demonstration
The Monday ruling came in the case of Roy Caballes, who was stopped by
Illinois police for speeding on Interstate 80 in 1998. While Caballes
complied with the request to produce his driver's license, registration,
and proof of insurance, troopers brought a drug dog to sniff his car
because he "seemed nervous." The dog alerted, providing police with
probable cause to search Caballes' vehicle, where they found pounds of
marijuana. He was sentenced to 12 years in prison, but his conviction was
overturned by the Illinois Supreme Court, which held that police
"impermissibly broadened the scope of the traffic stop" by using the
drug-sniffing dog without suspicion that Caballes possessed drugs.

At the Supreme Court Cabelles' attorney argued that the Fourth
Amendment protects motorists from searches such as dog sniffs, which he said
could be humiliating and intimidating and should not be allowed without
particularized suspicion. But the state of Illinois, backed by the Bush
administration Department of Justice -- and precedent in the federal
courts -- argued that walking a drug-sniffing dog around a vehicle to see
if it could detect illicit drugs was not a "search."

In a 6-2 decision, the Supreme Court found for the state. "The dog
sniff was performed on the exterior of respondent's car while he was
lawfully seized for a traffic violation," wrote Justice John Paul Stevens for
the majority. "Any intrusion on respondent's privacy expectations does
not rise to the level of a constitutionally cognizable infringement."
But Stevens wasn't done yet. "A dog sniff conducted during a concededly
lawful traffic stop that reveals no information other than the location
of a substance that no individual has any right to possess does not
violate the Fourth Amendment," he added.

Still, at least for two justices, providing a constitutional imprimatur
for suspicionless drug dog sniffing of vehicles was too much. In a
dissent joined in part by Justice David Souter, Justice Ruth Bader Ginsburg
warned that the majority opinion could make traffic stops more
"adversarial" and lead to widespread drug dog searches. "Injecting such animals
into a routine traffic stop changes the character of the encounter
between the police and the motorist. The stop becomes broader, more
adversarial and (in at least some cases) longer," she wrote. "Under today's
decision, every traffic stop could become an occasion to call in the
dogs, to the distress and embarrassment of the law-abiding population," she
wrote. The decision "clears the way for suspicionless, dog-accompanied
drug sweeps of parked cars along sidewalks and in parking lots."

While Monday's ruling allows police to use the occasion of a traffic
stop to let drug-sniffing dogs check out a vehicle, it does not allow for
the indefinite detention of drivers to give the dogs time to arrive to
do the non-search search. Lower federal courts have varied in
determining what period of time constitutes a constitutionally permissible
detention, with some allowing waits of up to 90 minutes.

Steven Silverman, executive director of the Flex Your Rights
Foundation, counsels drivers confronted with threats of calling in the drug dogs
to exercise their rights and simply ask to be on their way. "Basically,
if police can't bring a dog to the scene in the time it takes to run
your tags and write a ticket, the use of the dog becomes constitutionally
suspect," said Silverman. "In our video, 'BUSTED: The Citizen's Guide
to Surviving Police Encounters,' we warn viewers that police will often
threaten to bring dogs to the scene. Since police cannot detain you for
the purpose of investigating an additional crime -- unless they have
evidence you've committed one -- our advice is still to ask if you are
free to go."
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