DRUG-SNIFFING DOG RULING IS ANOTHER BLOW TO PRIVACY

P erhaps it's not the stuff of massive outrage, but a U.S. Supreme Court
decision issued last week - which allows drug-sniffing dogs to sniff a car
during a routine traffic stop - represents another small erosion of privacy
and personal freedom.

Freedoms are generally lost little by little, often by giving authorities
just a little more latitude in difficult or ambivalent circumstances. We
fear Illinois v. Caballes, which reversed the Illinois Supreme Court, will
come to be seen as another small step in the slow but steady erosion of
privacy. Mr. Caballes was stopped in Illinois for going six mph over the
speed limit. While the officer was writing a warning, a second officer with
a drugsniffing dog came to the scene and had the dog walk around the car.
When the dog alerted on the trunk, the officers opened it, found marijuana
and arrested Mr. Caballes.

The trial court refused to suppress the marijuana evidence.

But the Illinois Supreme Court held that it should have been suppressed,
finding that there were no specific and articulable facts discovered during
the traffic stop to suggest drug activity, and that use of the dog had
unjustifiably enlarged a routine traffic stop.

We think the Illinois court had it right. Justice Ruth Bader Ginsburg, in
dissent, argued that the decision "clears the way for suspicionless,
dog-accompanied drug sweeps of parked cars along sidewalks and in parking
lots ... Nor would motorists have constitutional grounds for complaint
should police with dogs, stationed at long traffic lights, circle cars
waiting for the red signal to turn green." It's worth noting that this
decision applies only to drug cases, not to dog-sniffing searches for
explosives, which might arguably be more justified in this era of
uncertainty and potential terrorism.

It simply carves out a little larger space in what might be called the
drug-war exception to the Fourth Amendment, which requires that searches be
based on probable cause and require a warrant from a judge before they are
conducted. Thus the fundamental assumption behind a free society - that
except in extraordinary circumstances people should be free of official
surveillance and invasion of their persons and properties - is eroded just
a bit more.