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Supreme Court: “Sniff Search” Permissible

Written by Joe Devanney

The extent to which police dogs can be used in a “sniff search” of vehicles has been a cutting edge issue in law enforcement in recent years. In late January 2005, the United States Supreme Court in a major ruling held that the use of a police dog to sniff a car’s exterior for drugs is not a violation of the Fourth Amendment, even if the officers did not have reason to believe drugs were in the car.

The facts of the case began in 1998, when an Illinois state trooper, Ray Gillette, stopped motorist Ray Caballes on Interstate 80 for going 71 mph in a 65 mph zone. As the officer wrote a warning ticket, a second officer, Craig Graham, appeared with a drug-sniffing dog. Graham is a member of the Illinois State Police Drug Interdiction Team. He had overheard the radio transmission and went to the scene with his dog.

Within the next 10 minutes, the dog circumnavigated the vehicle and reacted to the trunk. The officers believed that the canine’s reaction constituted probable cause and they opened the trunk. Inside was 282 pounds of marijuana worth about $250,000. Caballes was subsequently convicted on drug trafficking charges and sentenced to 12 years incarceration.

On appeal, Caballes argued that the “sniff and search” was an impermissible search and seizure under the Fourth Amendment. The Illinois Supreme Court agreed with him. In the view of this highest state court, a routine traffic stop was turned into a drug search without any reason or probable cause when the dog was brought to the scene.

The United States Supreme Court, however, in a surprising six to two decision authored by Justice John Paul Stevens, reversed the Illinois Supreme Court and reinstated Caballes’ conviction. At the heart of Justice Steven’s opinion was his finding, based on an earlier Supreme Court case, that individuals can have no expectation of privacy if they are carrying contraband such as drugs. The Court, through Justice Stevens, wrote, “[T]he initial seizure of [Caballes] when he was stopped on the highway was based on probable cause, and was concededly lawful….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 a right to possess does not violate the Fourth Amendment.”

Justice Stevens distinguished this decision from an earlier one that held that the use of thermal-imaging devices to detect marijuana inside homes was an unlawful search. Thermal-imaging devices, he stated, are capable of detecting lawful activity, but, with dog sniffs, the only thing that can be detected is something that is illegal.

Although the decision in this case allows major new legal freedoms for law enforcement officers in stop situations, there are several nuances in it that officers must consider. Most importantly, Justice Stevens stressed that the use of drug-sniffing dogs cannot prolong a stop. If a stop is prolonged beyond the time reasonably necessary to complete the mission, the dog-sniff will become an illegal search.

Justice Stevens also did not comment on an issue that was the subject of questioning at the oral arguments heard before the Court in the case. If a sniff search outside a stopped car is constitutional, is it also permissible for officers to allow dogs to sniff parked cars? That issue has not been decided, but it may be a much closer question. There was probable cause to stop Caballes originally, but no such probable cause would exist merely to have a dog walk up and down past parked vehicles.

Two Justices, Souter and Ginsberg, dissented—Chief Justice Rehnquist did not participate because of health problems. In his dissent, Justice Souter wrote, “The infallible dog....is a creature of legal fiction.” He cited earlier cases where dogs had far less than a 100% accuracy rate and went to say “given the fallibility of the dog, the sniff is the first step in a process that may disclose ‘intimate details’ without revealing contraband, just as a thermal-imaging device might do...”

Justice Ginsberg wrote a separate and longer dissent that went further: “a drug-detection dog,” she stated, “is an intimidating animal...drug dogs are not lap dogs....Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist.”

Ginsberg continued that “the stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes—-who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit—-was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs.”

Given the majority opinion expressed through Justice Stevens, however, the decision in Caballes case means that police officers may include within stops, if based on probable cause and if no longer period of time for the stop occurs than was necessary for the original stop to be completed, the use of a drug-sniffing dog. While the decision has to be, as Justice Stevens stressed, read narrowly, it clearly is a victory for law enforcement and, more specifically, the use of drug-sniffing dogs by police.

Joe and Diane Devanney can be reached via e-mail at joedevanney@cs.com.


Published in Law and Order, Apr 2005

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