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."