Pubdate: Thu, 11 Nov 2004
Source: Chicago Sun-Times (IL)
Copyright: 2004 The Sun-Times Co.
Author: Abdon M. Pallasch, Legal Affairs Reporter


WASHINGTON -- In her first argument before the U.S. Supreme Court,
Illinois Attorney General Lisa Madigan asked the justices Wednesday to
let police use dogs to sniff outside people's cars for drugs -- even
if the motorists are stopped merely for speeding or some other
non-drug offense.

The American Civil Liberties Union says such an action violates the
4th Amendment ban on unreasonable search and seizure.

But Madigan argued, "A sniff is not a search, and therefore it
requires no 4th Amendment justification." The dog sniffs merely the
air outside the car, she noted.

Wouldn't ruling Madigan's way allow police to start showing up outside
anyone's house, using dogs to sniff at the home's foundation for
marijuana in the basement, or walk up and down the street sniffing at
people, some justices asked?

"Yes," Madigan conceded. But don't worry, she told them, police
departments don't have the resources to do that.

"There is nothing to prevent a police officer . . . from going up to
any homeowner's door, ringing the bell, and [letting] the dog get a
sniff when the homeowner answers the bell?" Justice David Souter asked.

That is the case, Madigan said.

What did her father think?

Asked afterward if he agreed with the argument his daughter was
making, a beaming Illinois House Speaker Michael Madigan (D-Chicago)
had to admit: "I'm not certain. I'll keep an open mind, but I'm not

Lisa Madigan spoke in calm, measured tones as she stood before the
eight justices, her seven-month pregnancy evident. None of the
questions the justices threw at her over the course of a half hour
caught her or her U.S. Justice Department co-counsel Christopher Wray

Opposing argument

On the other side, attorneys Ralph Meczyk and Lawrence Hyman -- also
in their first Supreme Court appearances -- argued their client, Roy
Caballes, had an expectation of privacy when police pulled him over
for driving 6 mph over the speed limit on Interstate 80 in LaSalle
County six years ago. Asked if he would consent to a search of his
car, he said "No."

The State Police drug interdiction team makes frequent arrests on I-80
for drugs. A team member pulled over Caballes, 38, and noticed a
Nevada license plate. Another member of the team drove up with Krott
the drug dog and walked him around Caballes' car. The dog reacted, and
police searched the car and found $250,000 worth of marijuana.

Cabelles, who lives in Las Vegas, was convicted, sentenced to six
years in prison and ordered to pay $250,000. But the Illinois Supreme
Court overturned his conviction, ruling the dog sniff was an
unconstitutional search.

"The sniff in this case was in fact a search," Meczyk said.

"Do you want us to reverse [the Place case]?" Justice Sandra Day
O'Connor asked, referring to a previous ruling that dog sniffs are not

No, the Place case involved dogs sniffing luggage at an airport, where
there is not the same expectation of privacy, Meczyk said.

But Madigan said ruling for Caballes would not only let a drug
trafficker go free, but would strip police of a right they have taken
for granted and have used to help fight the war on drugs.
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