Pubdate: Mon, 24 Jan 2005
Source: Lexington Herald-Leader (KY)
Copyright: 2005 Lexington Herald-Leader
Author: Stephen Henderson, Knight Ridder Newspapers


WASHINGTON - The Supreme Court gave police broader search powers
Monday, saying the Constitution doesn't protect motorists' vehicles
from the "nosy" inquiries of drug-sniffing dogs during routine traffic

In a 6-2 ruling, the justices sided with Illinois state troopers who
used a narcotics-detection dog to sniff around Roy Caballes' trunk
after stopping him for speeding. Chief Justice William Rehnquist, sick
with thyroid cancer, didn't take part in the case.

It turned out that Caballes was transporting $250,000 in marijuana,
which was found after the dog alerted officers to the stash.

Caballes said the use of the dog violated his right to privacy, since
the officers had no evidence to suggest he was a drug offender before
the dog arrived on the scene. It was a traffic stop, he said, and to
expand the scope of the stop, the officers needed probable cause. The
Illinois Supreme Court had agreed with him and thrown out his conviction.

But the justices said Monday that Caballes had no constitutional right
to privacy concerning illegal drugs, and because the police dog was
trained only to search for contraband narcotics - as opposed to money
or any other lawful possession - the officers' action didn't violate
constitutional search-and-seizure protections.

In short, the court said a sniff wasn't a constitutionally guarded
search, so long as it was a sniff for contraband.

"We have held that any interest in possessing contraband cannot be
deemed 'legitimate,"' Justice John Paul Stevens wrote. "Accordingly,
the use of a well-trained narcotics-detection dog ... during a lawful
traffic stop, generally does not implicate legitimate privacy interests."

The ruling gives police, who can't search cars themselves without
probable cause, an easier way to apprehend drug offenders as a result
of routine traffic stops. By simply using dogs, instead of their own
powers of observation, they can avoid constitutional rigors.

That's what's wrong with the decision, said John Wesley Hall, an
Arkansas defense lawyer who helped write a brief for the National
Association of Criminal Defense lawyers in support of Caballes.

"All this does is exacerbate the problem of profile stops," Hall said,
explaining that police often target people who "look like" drug
dealers for traffic stops, hoping to bust them for something bigger.
"Now they just need to stop someone who fits their profile, and bring
the dog. There are already some places where police departments keep
drug dogs in cruisers, or nearby in certain areas. The court just said
this is OK."

Hall's concerns were echoed in the opinions of the two dissenting
justices in Monday's ruling, Ruth Bader Ginsburg and David Souter.

Ginsburg said a drug-sniffing dog was an "intimidating animal" and
that injecting that animal into routine traffic stops fundamentally
changed the encounter. "The stop becomes broader, more adversarial and
(at least in some cases) longer," she wrote. The court has said before
that police can't simply hold someone who has been stopped for a
traffic violation any longer than it takes to write a ticket; any
further delay has to be justified by reasonable suspicion.

In Caballes' case, Ginsburg wrote, "even if the drug sniff is not
characterized as a Fourth Amendment 'search,' the sniff surely
broadened the scope of the traffic-violation-related seizure."

Souter doubted the court's faith in the idea of a dog that will sniff
only for drugs, and won't alert officers to other, lawful possessions
that can't legally be the subject of a search without cause.

"The infallible dog ... is a creature of legal fiction," Souter wrote.
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