Pubdate: Fri, 09 Apr 2004
Source: North Texas Daily (TX Edu)
Copyright: 2004 North Texas Daily
Contact:  http://www.ntdaily.com/
Details: http://www.mapinc.org/media/2842
Author: Jason Womack

TRAFFIC STOP CONTROVERSY HEADS TO SUPREME COURT

Lawsuit Pits Right To Privacy Against Need To Search

Six years ago, self-described unemployed salesman Roy I. Caballes was 
moving from Las Vegas to Chicago when an Illinois State Police Trooper 
pulled over as part of a routine traffic stop that proved to be anything 
but "routine."

While traffic stops are one of the basic duties of any police department, 
this stop may change the way law enforcement officials and motorists 
interact in the future and the way police go about their day-to-day duties 
of upholding the law. Exactly what those changes are will be determined 
when the state of Illinois brings the Caballes case before the U.S. Supreme 
Court this fall.

According to court documents, Caballes was traveling with only two suits 
and appeared to be nervous. Daniel Gillette, the officer who stopped the 
car, also noted that Caballes appeared unusually nervous and he noticed the 
smell of air freshener. Gillette asked to search the car and his request 
was denied.

Then, as Gillette was writing a warning ticket to Caballes, an Illinois 
drug enforcement agent arrived at the scene and walked his dog around the 
car. The dog alerted the officers to marijuana in the car's trunk, and 
Caballes went to jail.

The Caballes case, which was later thrown out by the Illinois Supreme 
Court, will raise an important Fourth Amendment question before the high 
court: Can a search around the perimeter of an automobile be considered 
what the Constitution calls an "illegal search"?

Law enforcement officials disagree. In fact, the Illinois Association of 
Chiefs of Police submitted a friend-of-the-court brief that said this type 
of search is not illegal, because it is not intrusive, said Don Zoufal, 
chairman of the legal committee for the Illinois Association of Police Chiefs.

At the core of this issue is the extent to which dogs can be used in law 
enforcement matters. What is and is not private and what is considered a 
legal search is something that the Supreme Court has consistently revised, 
and something that they will continue to revise. It is also something that 
will continue to change as technology changes and law enforcement officials 
have greater abilities to conduct unobtrusive searches, Zoufal said.

"The use of canines is an important, growing area of law enforcement," 
Zoufal said. "The federal government has long recognized their importance 
in investigations involving narcotics and explosives."

NT police officials agree with Zoufal.

"Using a dog is no more of a search than if an officer smells marijuana 
when someone rolls down the window," said Richard Deter, NT police chief.

The NT Police Department's canine unit currently consists of four dogs who 
patrol the campus daily and who regularly participated in many of the 
almost 4,000 traffic stops the department made last year.

According to Ed Reynolds, NT's deputy police chief, the dogs are often 
called upon to alert police if a vehicle contains drugs. The dogs may be 
used if the driver provides inconsistent information and if, like Caballes, 
the driver appears excessively nervous.

To be sure, any person stopped by the police has a right to refuse a 
vehicle search, and the officer may determine that a search should not be 
conducted. However, walking a dog around a vehicle does not constitute a 
search, Deter said.

Kathryn McCauley, student legal adviser at NT who also teaches a class in 
constitutional law in the political science department, said that she has 
told her teenage daughter to never allow a police search.

"It's not that I don't trust her," she said. "But most teenagers are not in 
100-percent control of their vehicles 100 percent of the time. Someone may 
borrow her car or inadvertently drop something in the backseat."

Zoufal, who served as the general council for the Chicago Police Department 
and who wrote a portion of the brief, said that the lower court's ruling 
improperly extends the Fourth Amendment to include a "protection against 
investigation."

This "protection" has greater implications than mere routine traffic stops, 
Zoufal said, "It also may include explosives, which people are becoming 
more and more concerned about."

Although Zoufal would not offer a prediction as to how the court would 
rule, he did say that depending on the court's decision the case could 
affect how the police investigate in crowds and in airports. The ruling may 
even affect how police deal with terrorism.

"Absent the issue of search," Zoufal said. "The Illinois Supreme Court 
seems to say that you can't inquire about other matters."

Reynolds agreed with Zoufal. While someone can abstain from a search, they 
are not necessarily protected from investigation.

"You have a right to privacy," Reynolds said. "But the air around you is 
not private."
- ---
MAP posted-by: Keith Brilhart