HIGH COURT TAKES SEARCH CASE

Use of Drug-Sniffing Dog Led to 12-Year Sentence

The Supreme Court announced yesterday that it will decide whether the
Constitution requires police to have clear reasons for using drug-detection
dogs to sniff vehicles they have pulled over for traffic violations.

In a brief order, the court said it will hear an appeal by the state
of Illinois, which is seeking to overturn an Illinois Supreme Court
ruling last year that said the Fourth Amendment prohibition against
unreasonable searches means police must have "specific and
articulable" facts to justify a canine sniff.

The state argues that the U.S. Supreme Court has said in two past
decisions that a dog sniff is not a search under the Fourth Amendment.
In addition, the state argues in its petition to the court, a sniff of
the car's exterior adds nothing to whatever invasion of privacy the
traffic stop itself might cause, and is therefore a "Fourth Amendment
non-event."

With the use of trained canines for detecting drugs and explosives
already widespread and set to become even more so because of terrorism
concerns, the case is an important opportunity for the court to
clarify the constitutional doctrine in this area.

In a friend-of-the-court brief, the Illinois Association of Chiefs of
Police, backed by the Major Cities Chiefs Association, told the
justices that the Illinois Supreme Court's ruling "threatens to
undermine the government's war on terror, which relies on canines to
sniff vehicles and luggage for narcotics and explosives at large
gatherings or at transportation centers such as our nations' airports."

The case began on Nov. 12, 1998, when Illinois state trooper Daniel
Gillette stopped Roy I. Caballes for driving 71 mph on a stretch of
Interstate 80 with posted speed limit of 65 mph.

While Gillette was writing up a warning ticket, a sniffer dog from
another police unit arrived and discovered marijuana in Caballes's
trunk. Based on this evidence, Caballes was convicted of drug
trafficking and sentenced to 12 years in prison.

Caballes's lawyers argue, however, that the police deliberately
prolonged the traffic stop until the dog arrived. They had no specific
evidence to warrant the delay, the lawyers argue in Caballes's brief,
which made the subsequent dog sniff impermissible under Supreme Court
decisions governing brief police detentions.

The case also confronts the court with some of the more nuanced
realities of police-citizen encounters on the nation's highways.

In a 1996 decision, the court permitted the police to use valid
traffic violations as a pretext for stopping motorists to check them
for drugs.

In reliance on that opinion, many police agencies have developed
anti-drug programs in which officers are trained to read the faces of
drivers they pull over and to inspect their cars for such telltale
signs of possible drug dealing as zippered plastic bags and lawyers'
business cards, the police chiefs' brief explained. Police are trained
to view even religious paraphernalia with a jaundiced eye because it
is "sometimes used to divert suspicion," the brief noted.

In this case, Gillette found it suspicious that Caballes was wearing a
business suit even though he said he was driving from Las Vegas to
Chicago.

The Illinois Supreme Court majority called that a "vague hunch."

"We fail to see how his stated preference for business clothing
suggests any involvement in past or present criminal activity," the
majority said in its opinion.

The case is Illinois v. Caballes, No. 03-923. Oral argument is
expected in the fall, and a ruling by July 2005.