Thursday, November 11, 2004
Copyright © Las Vegas Review-Journal

Justices question use of drug dog

Las Vegan appeals conviction after pot was found in car

Illinois Attorney General Lisa Madigan answers questions Wednesday outside the U.S. Supreme Court, where she argued a case involving drug-sniffing dogs used during traffic stops. Photo by THE ASSOCIATED PRESS

WASHINGTON -- U.S. Supreme Court justices on Wednesday debated whether police violated the Fourth Amendment when they used a drug sniffing dog to discover marijuana worth $250,000 in a car driven by a Las Vegas man pulled over for speeding in Illinois six years ago.

The outcome could lead to new restraints on police methods or broaden acceptable behavior by authorities under the Constitution's provision on unreasonable search and seizure.

Justice David Souter suggested the use of drug-sniffing dogs during traffic stops should be limited..

"A traffic stop is not an arrest," Souter said. "Isn't there a possible middle ground? ... We're opening a wide vista for dog intrusion."

Justice Antonin Scalia took a different view, noting that drug-sniffing dogs are widely used to check luggage at bus depots.

"The republic seems to have survived," Scalia said.

Roy Caballes of Las Vegas was arrested Nov. 12, 1998, and later sentenced to 12 years in prison after he was stopped for speeding on Interstate 80 in Illinois.

During the nine-minute traffic stop, a police dog named Krott helped officers discover 282 pounds of marijuana in the trunk of Caballes' car.

The Illinois Supreme Court reversed Caballes's conviction last year, concluding the use of a drug-sniffing dog exceeded the permissible scope of a traffic stop.

During Wednesday's arguments, Illinois Attorney General Lisa Madigan said the U.S. Supreme Court has ruled in previous cases that the use of a drug-sniffing dog is not a search that would require compliance with Fourth Amendment safeguards.

When pressed by Justice Ruth Bader Ginsburg, Madigan said police could lawfully walk up and down every street of America with dogs sniffing for drugs.

"There are no privacy interests (when it comes to) the possession of contraband," said Madigan.

Ginsburg seemed troubled by the prospect that police could take drug-sniffing dogs to the front door of a private home.

"Dogs can be frightening, humiliating," Ginsburg said. "It seems I have the right to be left alone by my government."

Madigan said people routinely encounter dogs in parks and other public places, and police should not have to determine if someone is going to be frightened by a dog.

Noting that Caballes was stopped for driving 71 mph when the speed limit was 65, Justice John Paul Stevens drew laughter from the audience when he said he had done the same thing many times.

Stevens then asked Madigan if police knew in advance that Caballes was transporting marijuana.

Madigan responded that police are authorized to stop motorists no matter if they are one mile or 26 miles over the speed limit.

She said nothing in the record suggests police knew Caballes was transporting marijuana.

Christopher Wray, an attorney from the U.S. Department of Justice, took a similar hard line.

When Justice Sandra Day O'Connor asked Wray if police could use drug dogs to search parked cars in neighborhoods known for narcotics trafficking, he said, "We believe it would be OK."

Wray said Caballes's case is different from a 2001 case in which the Supreme Court ruled police could not use a thermal imaging device outside a private residence to search for drugs.

He said a home is entitled to more privacy than a car, the thermal imaging device revealed intimate details of the home, and the device was not commonly used by the public.

Ralph Meczyk, a Chicago attorney representing Caballes, argued the sniff was a search that violated the Fourth Amendment.

"It was a limited intrusion but a search nonetheless," he said.

Meczyk said it was significant that Illinois State Trooper Daniel Gillette did not plan to arrest Caballes and was going to let him off with a warning before a second trooper arrived with a drug-sniffing dog.

"Caballes had the expectation that his trunk would not be searched," Meczyk said.

Although he said many police searches don't require justification, Justice Stephen Breyer seemed sympathetic to Meczyk's argument. Breyer said the issue was about Caballes's expectation of privacy, not about the use of a drug-sniffing dog.

Referring to the war on terrorism, O'Connor asked Meczyk if the Fourth Amendment would be violated if dogs who are trained to detect explosives search cars on Capitol Hill.

Meczyk said that kind of search should be allowed as a "public safety exception."

Stevens directed court proceedings in the absence of Chief Justice William Rehnquist, who is being treated for thyroid cancer.

Rehnquist has reserved the right to participate in the decision, which is expected early next year.