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Court sniffs at dog-search concerns.

In Illinois v. Caballes, the Supreme Court held that using a drug-sniffing dog to inspect a car stopped for a traffic violation did not run afoul of the Fourth Amendment. (1) Chief Justice William Rehnquist did not participate but surely agreed with the 6-2 majority opinion by Justice John Paul Stevens.

In the incident that led to the ruling, an Illinois state trooper stopped Roy Caballes for speeding. Another trooper heard about the stop on the police radio and headed for the scene with a drug-detecting dog, even though the first trooper had not indicated any suspicion of drugs or asked for assistance. While the first trooper was writing the ticket, the second walked the dog around the car. The dog alerted the officers to the car's trunk. They opened it and found marijuana. The entire incident lasted less than 10 minutes.

The Illinois Supreme Court struck down the search, finding that there were no "specific and articulable facts" to suggest drug activity, so using the dog "unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation." (2)

The U.S. Supreme Court reversed, holding that the initial seizure of the car for speeding was justified by probable cause. The Court recognized that "a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution." (3) Here, however, the Illinois courts had concluded that the duration of the traffic stop was "entirely justified by the traffic offense and the ordinary inquiries incident to such a stop." (4)

Accordingly, the only remaining question for the Court was whether the dog sniff itself was a separate search requiring additional justification to be valid under the Fourth Amendment. The Court said it was not, because the dog sniff did "not implicate legitimate privacy interests." (5) The Court did note that in United States v. Place, it had stated (in dictum) that a dog sniffing luggage at an airport "did not constitute a search" because the sniff was sui generis; it disclosed "only the presence or absence of narcotics," with no need to open the bag or check its contents. (6)

This is in contrast to Bond v. United States, where the Court held that drug agents who squeezed a suitcase to feel what was inside--but did not open it--were conducting a search. (7)

Reasonable roadblocks

Although the Court did not discuss it, the Caballes ruling is a version of the "plain view/plain smell" doctrine, in which the Court has held that when police officers detect information with their senses, without trespassing, they are not conducting a search. (8) And enhancement of their senses--at least by low-tech devices such as flashlights, binoculars, or (after Place) dogs--does not change the calculus. (9)

The Court did distinguish Kyllo v. United States, where it ruled that the use of a thermal-imaging device to detect excessive heat emissions from a house (indicating the presence of a marijuana-growing operation) was a search requiring a warrant. (10) "Critical to that decision," said the Court, "was the fact that the device was capable of detecting lawful activity--in that case, intimate details in a home, such as 'at what hour each night the lady of the house takes her daily sauna and bath."' (11)

In light of Place, the result in Caballes was hardly surprising. Indeed, in striking down a drug-interdiction roadblock in Indianapolis v. Edmond, the Court had given its seal of approval, again in dictum, to the use of drug-sniffing dogs at otherwise justifiable roadblocks, such as those to detect drunk driving. It noted, "The fact that officers walk a narcotics-detection dog around the exterior of each car does not transform the seizure into a search." (12)

The two dissenters objected that the police activity in Caballes was improper because it did not meet the criteria the Court established in Terry v. Ohio. (13) Since the Court has treated a traffic stop the same as it does a Terry stop (of a person on the street), (14) a traffic stop must meet the Terry criteria: The stop must be justified at its inception, as this stop clearly was, and any investigation must be "reasonably related in scope to the circumstances which justified the interference in the first place," (15) as the dog sniff clearly wasn't.

To this, the Court could have responded--but didn't--that it had already approved questioning about drug activity and seeking consent to search during routine traffic stops in Ohio v. Robinette. (16) In fact, it would seem that when a traffic stop is based on probable cause of a violation, as opposed to mere reasonable suspicion of criminal activity (which Delaware v. Prouse also allows (17), it should be treated differently from a Terry stop because of the higher level of suspicion--usually approaching certainty.

In fact, Atwater v. City of Lago Vista (which went too far, in my view) has even allowed a custodial arrest for a minor traffic violation, (18) so a dog sniff that doesn't intrude into the car or prolong the stop does not seem too troublesome.

Justice David Souter's dissent argued that since drug dogs are not infallible, yielding false positives up to about 30 percent of the time, the search was not sui generis. (19) Souter did concede that this level of accuracy was sufficient to establish probable cause. (20)

In Place, however, the Court's description of dog sniffs as sui generis--a Latin term meaning "unique," which we lawyers trot out to convince laypeople that law is a deep and mystical matter--was based on the fact that a dog discloses only the presence of contraband, not on the belief that the dog is infallible.

Souter also argued that opening the trunk after the dog sniff was indistinguishable from using the heat-sensing device in Kyllo, but this point is also misplaced. (21) The trunk-opening in Caballes was based on probable cause; the heat-sensing in Kyllo was not.

A more interesting part of Souter's dissent is this observation:
 The Court today does not go so far as to say
 explicitly that sniff searches by dogs trained
 to sense contraband always get a free pass
 under the Fourth Amendment since it reserves
 judgment on the constitutional significance
 of sniffs assumed to he more intrusive
 than a dog's walk around a stopped
 car.... I do not take the Court's [opinion]
 ... as signaling recognition of a broad authority
 to conduct suspicionless sniffs for
 drugs in any parked car ... or on the person
 of any pedestrian minding his own business
 on the sidewalk. But the Court's stated reasoning
 provides no apparent stopping
 point short of such excesses. (22)

But as the attorney general of Illinois averred at oral argument, if a dog sniff is not a "search," then police dogs could go around sniffing pedestrians and even houses, as long as the officers did not have to trespass in order to get into position for the dogs to do so. (23)

Reason for optimism

So where does Souter get his rosy view of this ruling's narrowness? It certainly doesn't leap from the pages of the majority opinion. But a careful parsing of the holding, keeping in mind that it was written by the generally liberal Stevens--who, in the chief justice's absence, joined the majority and assigned the case to himself--reveals that Sourer may have good reason for optimism. Here's the operative paragraph, with the critical words italicized:
 Accordingly, the use of a well-trained
 narcotics dog--one that
 "does not expose noncontraband items
 that otherwise would remain hidden from
 public view" ... --during a lawful traffic
 stop, generally does not implicate legitimate
 privacy interests. In this case, the dog
 sniff was performed on tire exterior of respondent's
 car while he was lawfully seized
 for a traffic violation. Any intrusion on respondent's
 privacy expectations does not
 rise to the level of a constitutionally cognizable
 infringement. (24)

This could certainly be read simply as just the narrowly stated holding of the case, with no future implications. But it could also signal that the Court is not about to step onto the slippery slope of first approving the intrusive use of drug-detecting dogs and, from there, allowing intrusive uses of high-tech devices like weapons detectors (which indicate the presence of concealed weapons) and enclosed-space detection systems (which reveal people hiding in vehicles by detecting their heartbeats.) (25)

At its most narrow reading, this case would not even allow police officers to walk through a parking lot with drug-sniffing clogs, since the owner of a parked car has done nothing to bring himself to the attention of police, unlike Caballes, who was "seized Jot a traffic violation." (In Atwater, the Court attached much significance to the fact that the person challenging her arrest had been seized on probable cause for a traffic violation. (26))

Likewise, a person stopped at a roadblock has done nothing to merit further scrutiny. Otherwise, why would the Court say that a dog sniff "generally does not implicate legitimate privacy interests"? If a dog sniff is not a search, as the Court stated in Place but failed to reiterate here, it would never implicate legitimate privacy interests by definition unless it involved trespassing, as the Illinois attorney general argued.

But whatever Stevens's intention may have been, I doubt the other justices in the majority will agree to such a narrow reading. In Edmond, for example, the Court seemed to approve the use of drug-sniffing dogs at a roadblock, and in Cardwell v. Lewis, it held that taking paint scrapings from the outside of a car while it was parked in a lot was not a search. (27) The dog sniff seems no more intrusive.

Finally, the Court could have cut off the use of drug-sniffing dogs around houses by distinguishing Kyllo on the ground that the thermal imager disclosed information emanating from a home, rather than the fact that it exposed both lawful and unlawful activities.

In short, expect further developments on the dog front as police see how far the courts will let them go.


(1.) 125 S. Ct. 834 (2005).

(2.) Id. at 836-37 (quoting People v. Caballes, 802 N.E.2d 202,205 (Ill. 2003)).

(3.) Id. at 837.

(4.) Id.

(5.) Id.

(6.) 462 U.S. 696, 707 (1983). This is dictum because Place won on the ground that the holding of his bags for an excessive period of time while awaiting the dog was an unreasonable seizure.

(7.) 529 U.S. 334 (2000).

(8.) See, e.g., Steele v. United States, 267 U.S. 498 (1925) and many subsequent cases, discussed in WAYNER R. LAFAVE ET AL., CRIMINAL PROCEDURE [section]3.2 (b) (4th ed. 2004).

(9.) LAFAVE ET AL., supra note 8.

(10.) 533 U.S. 27 (2001).

(11.) Caballes, 125 S. Ct. 834. 838 (quoting Kyollo, 533 U.S. 27, 38).

(12.) 531 U.S. 32, 40 (2000).

(13.) 392 U.S. 1 (1968).

(14.) 125 S. Ct. 834. 843-47, and cites therein (Ginsburg, J., dissenting). In an article that arrived on my desk the day Caballes was decided, Wayne R. LaFave made the same argument. (The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 MICH. L. REV. 1843, 1895 (2004).) Although LaFave's dog-sniff argument was strangled at birth, Caballes makes LaFave's concerns about police abuse of the traffic stop as a means of further investigation all the more weighty.

(15.) 392 U.S. 1, 19-20.

(16.) 519 U.S. 33 (1996).

(17.) 440 U.S. 648 (1979).

(18.) 532 U.S. 318 (2001).

(19.) 125 S. Ct. 834, 838 (Souter. J., dissenting).

(20.) Id. at 838-41.

(21.) Id. at 840.

(22.) Id. at 842.

(23.) Jan Crawford Greenburg, Lisa Madigan Has Day in High Court, CHI. TRIB., Nov. 11, 2004, at 1.

(24.) 125 S. Ct. 834, 838 (citation omitted) (emphasis added).

(25.) YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 155-60 (10th ed. 2002).

(26.) 532 U.S. 318.

(27.) 417 U.S. 583 (1974).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at the Indiana University School of Law in Bloomington. He can be reached by e-mail at
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Author:Bradley, Craig M.
Date:Apr 1, 2005
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