Pubdate: Mon, 22 May 2006
Source: Galesburg Register-Mail (IL)
Author: John R. Pulliam, Register-Mail


Previous Ruling Said Privacy Rights Violated By Unreasonable Search

SPRINGFIELD - In a narrow decision, the Illinois Supreme Court 
reversed itself Thursday and ruled that police can use drug-sniffing 
dogs to search vehicles during routine traffic stops.

By a 4-3 vote, the court decided that the drug trafficking arrest of 
a driver stopped in 1998 for speeding on Interstate 80 in LaSalle 
County did not violate his constitutional rights. The man was charged 
with the drug offense after a police canine detected marijuana in his 
car while an officer was writing the traffic ticket.

Knox County State's Attorney Paul Mangieri said this morning that he 
was pleased with the ruling.

"Quite frankly, I do believe 98 percent of people out there would 
recognize that just simply having a dog, during a traffic stop, 
walking around the exterior of their car, is a minimal intrusion, 
based upon the law enforcement rewards it can reap," Mangieri said.

In 2003, the state Supreme Court had ruled that Roy Caballes' rights 
of privacy and protection from an unreasonable search had been 
violated and overturned his conviction. But in January 2005, the U.S. 
Supreme Court vacated that ruling and sent his case back to the state 
court for another hearing.

Asked if he is surprised this case has bounced back and forth in the 
high courts, Mangieri admitted he is.

"It's in a public setting. ... This is not in your home. You have 
been stopped for a proper law enforcement purpose. We're not talking 
about road blocks, we're not talking about forced stops where the 
individual has not committed a violation," he said.

Mangieri said if a motorist has been stopped for speeding, having a 
burned out headlight or taillight, he does not see this as a problem.

"I don't fully appreciate the objection at that point of the minimal 
intrusion, if you call it that," he said.

Mangieri added one caveat, however.

"As long as it is done in the time it takes to write a ticket, I 
don't have a problem with it," Mangieri said.

However, if the ticket is written, then the motorist is told he or 
she will have to remain at the scene for 45 minutes because a police 
dog has to be brought in from another location, Mangieri feels a line 
has been crossed.

"I don't like that," he said.

Knox County Public Defender Jim Harrell doesn't like the ruling, 
period, based upon what he has heard of it. He said he has not had 
the chance to read the ruling yet.

"I don't think they should be able to do the search unless there is a 
reasonable suspicion of a crime," Harrell said. "But when someone is 
pulled over for a normal ticket, such as speeding or DUI, the only 
reason a dog should be called in is if there is suspicion."

Harrell said that could be an officer smelling marijuana smoke or 
seeing drugs in plain sight.

Harrell also is concerned about the chances for racial profiling or 
people being pulled over and the dog called in simply because someone 
is driving an older model car or lives in what is considered to be a 
bad part of town.

"I guess it's touching on a dangerous area," he said, "that being 
infringing on personal liberties of each individual. Does that 
officer have the right to strip search the person or tow the vehicle? 
So my concern is what will the next step be."

Harrell also discussed the situation where the dog is present and 
walks around the car while the ticket is being written.

"The state may say if there's nothing to hide, why would someone have 
a problem with that. But if you have done nothing wrong, why should 
you be subjected to a search?" Harrell said.

An Illinois State Police trooper had stopped Caballes, who then lived 
in Las Vegas, for driving 6 miles per hour over the speed limit. When 
the trooper radioed a dispatcher, an officer with a drug dog 
overheard the transmission and drove to the site. While the speeding 
citation was being written, the canine sniffed Caballes' car and 
alerted the officers. They found 280 pounds of the illegal substance 
in the trunk.

Caballes was convicted in 1999 and sentenced to 12 years in prison 
and fined $256,136, the reported street value of the marijuana.

In appealing the verdict, Caballes' attorney, Ralph Meczyk of 
Chicago, argued the search was illegal because officers had no cause 
to look for drugs during a routine traffic stop. Meczyk also worried 
that the ultimate decision could have a broad effect on how far 
police could go in conducting searches.

The Illinois State Bar Association, the Office of the Cook County 
Public Defender and the American Civil Liberties Union of Illinois 
filed briefs with the court supporting Meczyk's arguments.

Thursday's majority opinion, written by Justice Rita Garman, said the 
"defendant's concerns about 'widespread' abuse of the use of police 
canine units and 'overwhelming numbers' of innocent subjects are pure 

Meczyk said Thursday he is looking at other possible legal options, 
although he couldn't say what they might be.

"I'm still parsing through the opinion," he said. "I don't know where 
I'm going from here, but I am exploring other avenues."

Illinois Solicitor General Gary Feinerman, who had argued the 
prosecution's case before the Illinois Supreme Court, responded 
Thursday: "He already lost under the federal Constitution, and this 
is the state Constitution. I don't know where he could go."

When the case returned to the state court after the U.S. Supreme 
Court ruled Caballes' federal rights had not been violated, Meczyk 
had argued that Caballes was protected by the Illinois Constitution.

In Thursday's reversal of its earlier decision, the state court said 
the Illinois Constitution's protections against illegal searches were 
"in lockstep" with those in the federal document, forcing the ruling 
against Caballes the second time around. Three of the seven justices dissented.

Illinois Attorney General Lisa Madigan argued the case before the 
U.S. Supreme Court. Feinerman, who was appointed by Madigan, said 
Thursday that the attorney general's office is pleased with the 
decision because "drug-detecting dogs are a valuable means of 
interdicting narcotics before they reach our cities, towns and neighborhoods."
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Dana Heupel of Copley News Service contributed to this story.
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