Search 'n' sniff: doggie-style fourth amendment.

IN AN UPCOMING case, Illinois v. Caballes, the Supreme Court will decide whether the use of a drug dog to conduct a suspicionless search passes the smell test.

On November 12, 1998, Illinois State Police Trooper Dan Gillete stopped Roy Caballes for driving six miles per hour over the speed limit. When Gillete radioed in the routine traffic stop, fellow officer Craig Graham volunteered to come by with a drug-sniffing dog. The pooch found a hefty stash of marijuana in the trunk. Caballes tried to have the pot suppressed as evidence because, despite the officers' testimony that Caballes had appeared "nervous," the dog was brought in without "reasonable articulable suspicion" that the car contained drugs. While the trial judge allowed the evidence, the Illinois Supreme Court reversed.

In 1983 the U.S. Supreme Court ruled that a canine sniff "does not constitute a 'search' within the meaning of the Fourth Amendment," on the grounds that dog sniffing doesn't require a physical intrusion into a subject's possession and (unlike, say, wiretapping) doesn't involve the exposure of incidental information--it only reveals the presence or absence of contraband. Under that doctrine, so long as the officers did not unduly prolong an otherwise legitimate stop, a drug dog search might not be expected to trigger any additional scrutiny at all. But the Illinois court held that "calling in a canine unit unjustifiably broadened the scope of an otherwise routine traffic stop into a drug investigation."

If the Supreme Court accepts that reasoning when it hears the case in the fall, it could bolster the beleaguered Fourth Amendment rights of motorists, long a casualty of the war on drugs.