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“Why waste time? Just tell your students that the Fourth Amendment doesn’t apply to cars anymore. Period.” This somewhat cynical comment is, of course, an exaggeration. Police officers must still adhere to the Fourth Amendment when they stop and search automobiles and their occupants. Nevertheless, probably the only situation in which the average person enjoys less constitutional protection from searches and seizures is when boarding an airplane. On Nov. 10, the Supreme Court will hear argument in Illinois v. Caballes. The issue: whether the police may have a drug detection dog sniff a car that they have lawfully stopped for a traffic violation, even where there is no “reasonable, articulable suspicion” that there are drugs in the car. This will be at least the third time the Court has addressed the use of drug-sniffing dogs. If the justices follow existing precedent, they will uphold the procedure, and the right to privacy in an automobile will diminish a bit more. ONLY CONTRABAND The Fourth Amendment protects “the right of the people to be secure, in their persons, houses, papers and effects, against unreasonable searches and seizures.” As a rule, police may not seize a person or evidence, or conduct a search, without probable cause. They may not enter a private location for these purposes without a search warrant. Where a street encounter involves only a temporary seizure and limited patdown for weapons, probable cause is not required; a “reasonable suspicion” is enough. But in a series of cases beginning in 1977, the Supreme Court has restricted these principles when automobiles are involved. The Court has stressed that automobiles, by their very nature, are subject to public scrutiny and pervasive regulations governing licensing, inspection, and operation. These considerations � and the Court’s desire to provide practical, “bright line” guidelines to police � have resulted in a body of case law that reduces our constitutionally protected expectation of privacy in automobiles. Three decades of high court decisions have produced the following rules: A traffic stop is lawful so long as a motorist violates a traffic regulation � but a police officer may not randomly stop an automobile that is being operated lawfully. Federal courts may not consider a defendant’s claim that the stop was a pretext to mask racial profiling or to investigate a hunch that the car might contain drugs. When an officer stops a car, he or she may lawfully order all occupants out and may frisk any not-obviously-anatomical bulges he observes. The police may arrest a driver for a mere traffic violation, even if the violation is punishable only by a fine. If any occupant of the car is arrested, the police may search the entire passenger compartment and any containers found therein (but not the trunk), even without any reason to suspect they will find anything incriminating. And if police lawfully impound a car (e.g., because the driver has been arrested), they may search and inventory its contents � including the trunk � but only if authorized by a state or local regulation and not as a pretext to look for incriminating evidence. Notably, even these permissive cases address actual searches. If a police surveillance technique is not classified as a search or seizure, the government need not show that it was reasonable under Fourth Amendment standards. Which brings us to drug-sniffing dogs. In United States v. Place (1983), the Court held that a drug detection dog’s sniff of a closed suitcase at an airport did not constitute a search because the sniff revealed nothing about its contents except whether it contained contraband. The Court reiterated this conclusion (albeit in dictum) in City of Indianapolis v. Edmond (2000), a case that, like Caballes, involved a dog sniff after a traffic stop. (Ironically, although the sniff in each case revealed drugs, the Court suppressed the evidence anyway. In Place, the Court suppressed because federal agents detained the suitcase too long before the dog sniff. In Edmond, the Court suppressed because the initial stop of the car, at a “narcotics interdiction” roadblock, was unlawful.) AN ASTONISHING RULING In the case before the justices now, Illinois State Trooper Daniel Gillette stopped Roy Caballes for doing 71 miles per hour on Interstate 80, which is 6 miles per hour over the limit. When Gillette radioed the police dispatcher that he was making the stop, he did not request any assistance, but Craig Graham, a state trooper assigned to the drug interdiction team, told the dispatcher that he and his dog would meet Gillette to conduct a canine sniff. Graham’s dog immediately “alerted” to the trunk, where a quantity of marijuana was found. Following Caballes’ conviction for cannabis trafficking in a bench trial, he was sentenced to 12 years’ imprisonment and ordered to pay a “street value” fine of $256,136 for the marijuana. The Illinois Supreme Court reversed, holding that the canine sniff of Caballes’ trunk “unjustifiably broadened the scope of the traffic stop . . . into a drug investigation because there were no specific and articulable facts to support the use of a canine sniff.” The majority relied on the general Fourth Amendment principle that when a police officer lawfully stops someone, the officer’s conduct after the stop must remain within the scope of the stop unless information develops in the meantime justifying further intrusions into privacy. By the time Graham arrived with the dog (the state supreme court declined to discuss whether Gillette had prolonged the stop excessively), some basis arguably existed to suspect that there was marijuana in Caballes’ trunk: (1) Gillette testified that even after he told Caballes he would only issue a warning, Caballes seemed unusually nervous. (2) In response to Gillette’s question, Caballes denied any prior arrests. The police dispatcher, however, reported that Caballes had two prior arrests for distribution of marijuana. (3) When Gillette asked if he could search the car, Caballes refused. But the Illinois Supreme Court held that these factors at most supported a “vague hunch” of wrongdoing and did not constitute “specific articulable facts” amounting to reasonable suspicion. Astonishingly, the majority made no reference to either Place or Edmond, the cases in which the U.S. Supreme Court stated that a dog sniff does not constitute a Fourth Amendment intrusion at all. BACKING AWAY? The U.S. Supreme Court granted certiorari in Caballes on the question of “whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” If the Court follows what it said in Place and reiterated in Edmond, it will reverse the state court decision and reinstate Caballes’ conviction. To prevail, therefore, Caballes must persuade the justices to back away from Place and Edmond. Plausible arguments do exist against applying those decisions. First, the Court did not hold in Place that using a drug detection dog is never a search. For a police dog to sniff a suspect, for example, is a humiliating and frightening experience; such an intrusion into individual dignity must surely be classified as a search. The same concerns exist, albeit to a lesser extent, when the target is his car, rather than his person. The question is really one of where to draw the line. Second, the dog sniff in Caballes differs from that in Place because in Place the agents had lawfully seized the suitcase on suspicion that it contained drugs. The dog sniff was the least intrusive means available to confirm or dispel the suspicion that justified the seizure in the first place. By contrast, Caballes’ car had been stopped for reasons wholly unrelated to narcotics. Based on this factual distinction, the Illinois Supreme Court held that unless the police develop reasonable suspicion of drug activity, it is improper to piggyback a drug detection sniff onto a routine traffic stop. Third, a person arguably has a greater expectation of privacy in the contents of a locked car trunk than in a suitcase checked at an airport. Particularly in the aftermath of Sept. 11, 2001, anyone who takes a commercial flight knows that checked luggage is likely to be X-rayed, opened, and searched by authorities as a matter of routine. When a person locks something in a car trunk, by contrast, she has a legally recognized reasonable expectation of privacy that protects the trunk from government inspection, at least as long as the authorities do not have probable cause to believe that the trunk contains incriminating evidence. Fourth, the dog sniff in Place was conducted in an area of the airport not accessible to the public. The sniff of Caballes’ trunk was in a public place and was therefore more intimidating, accusatory, and embarrassing. (Although the dog sniff in Edmond closely paralleled that of Caballes, the traffic stop in Edmond was unlawful, and therefore the Supreme Court’s discussion of the dog sniff in Edmond was only dictum.) Each of these reasons supports the conclusion that the dog sniff in Caballes should be classified as a search, which is lawful only where the police have (at least) a reasonable, articulable suspicion that contraband will be found. BETTER SNIFFS TOMORROW The justices may also want to consider the bigger picture. The Court in Place justified classifying the dog sniff as a nonsearch because the sniff was sui generis � unlike all other searches in that it did not involve an officer rummaging through one’s possessions and it could reveal only the presence or absence of contraband. That was then, this is now. Through technology, the type of search that was sui generis in Place will become commonplace. Surveillance equipment now exists that reveals whether someone on the street is carrying a gun. It is one thing to say (as in Place) that it is not a Fourth Amendment search for a drug detection dog to sniff a suitcase that has not been checked with an airline. It would be a substantially greater intrusion into privacy to say that no search occurs when police aim an electronic weapon detector at people as they walk down the street. Moreover, devices are now in use at airports that can “sniff” a package for the presence of drugs or dangerous chemicals. As such devices become more sensitive and sophisticated, the time may come when they can be used to surveil people and vehicles on the street � or even to monitor the contents of houses. In Kyllo v. United States (2001), the Supreme Court, dividing 5-4, held that a Fourth Amendment “search” occurred when police used a thermal imager to determine whether a home had internal heat patterns typical of commercial marijuana cultivation. Stressing that Fourth Amendment protection is greatest in the home, the Court held that using sense-enhancing technology (at least, technology not generally available to the public) to acquire “any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion” constitutes a search. The dissenting justices protested that this rationale directly contradicted the rule in Place excluding contraband-only detection devices from the definition of search. The dissent warned that this reasoning might render unconstitutional the use of devices “that might detect the odor of deadly bacteria or chemicals for making a new kind of high explosive.” At some point the Court will have to re-examine the Place doctrine in light of these developments. Caballes provides just such an opportunity to address questions far beyond a drug-sniffing dog � if the Court wants to do so. Professor Clifford S. Fishman teaches criminal law, criminal procedure, and evidence at the Catholic University of America Columbus School of Law.

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