Pubdate: Thu, 11 Nov 2004
Source: Sun News (Myrtle Beach, SC)
Copyright: 2004 Sun Publishing Co.
Author: Stephen Henderson, The Washington Post contributed to this report
Bookmark: (Cannabis)


Searches Violate Privacy Rights, Lawyer In Illinois Case Says

WASHINGTON - An hour of debate at the Supreme Court on Wednesday about
the scope and limits of the Fourth Amendment and personal privacy
boiled down to a five-word question: Is a sniff a search?

Roy Caballes said it is, especially when police stop you for speeding,
then have a canine unit sniff around your car for drugs. In Caballes'
case, the dog found $256,000 worth of marijuana in the trunk. Police
arrested Caballes, and he was sentenced to 12 years in prison.

Caballes' lawyer told the high court Wednesday that the traffic stop
did not give Illinois state troopers probable cause to search
Caballes' car for drugs, so the dog's sharp nose was an infringement
on Caballes' privacy rights.

Illinois officials, backed by the Justice Department, told the
justices that a sniffing dog is not a search, at least not as far as
the Constitution is concerned. It is a reasonable investigative tool,
they said, no different from the trooper's eyes or nose. Moreover,
Caballes has no right of privacy when it comes to contraband, the
officials said.

"Dog sniffs are unique in that they only reveal the presence or
absence of contraband," Illinois Attorney General Lisa Madigan told
the justices. "And there's no privacy right for drugs."

The case, one in a long line of search-and-seizure issues to reach the
high court, allows the justices to continue refining the lines between
personal liberty and police authority.

The court generally has taken a broad view of these matters and given
police a good bit of leeway to conduct reasonable investigations.

The justices have allowed police executing search warrants to kick in
a door after knocking and waiting 15 seconds.

They also have said authorities have the right to arrest all the
occupants of a car where drugs are found to determine whose they are.

The high court also has said in the past that having dogs sniff
airport luggage does not require probable cause because it is not
intrusive and people have no reasonable expectation of privacy
concerning the smells from their luggage.

In Caballes' case, the Illinois Supreme Court said state police
overstepped their bounds by expanding the scope of their investigation
from a speeding matter to a drug search without good reason.

Ralph Meczyk, Caballes' lawyer, urged the high court Wednesday to
equate dog sniffs conducted during traffic stops with physical
searches, which enjoy full Fourth Amendment protection, rather than
with casual investigative observations.

"It's a search. A limited one, but still a search," Meczyk said. "They
invaded a private space where he had a reasonable expectation of privacy."

Several justices took issue with that reasoning, however, and cornered
Meczyk into admitting that dog sniffs seem not to raise constitutional
issues in many similar contexts.

There is no presumption of wrongdoing or probable cause when dogs
sniff luggage at an airport, Justice Antonin Scalia pointed out, "but
if I travel abroad, they have dogs at customs who sniff my bags, and
according to you, that would be wrong, too."

Meczyk had trouble Wednesday defending his position, with many
justices - including those who typically lean toward protecting civil
liberties - appearing skeptical of his case.

For the sixth straight oral-argument session, Chief Justice William
Rehnquist did not appear Wednesday, but Justice John Paul Stevens
announced that Rehnquist would vote on the case. A ruling is expected
by July.
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