Such cases have troubled the trial and appellate courts for at least 20 years. The trial and conviction of Roy Caballes four years ago followed a familiar pattern. An Illinois state trooper stopped Caballes for speeding on Interstate 80. While he was writing up a warning ticket, another trooper conveniently arrived with his drug-sniffing dog. The dog alerted at the trunk of Caballes' car. Over the driver's protest, the police opened the trunk.
There they found a substantial stash of marijuana. The Illinois trial court sentenced Caballes to 12 years in prison, plus a fine of $256,000. The Supreme Court of Illinois reversed; it reasoned that use of the dog had "unjustifiably enlarged the scope of a routine traffic stop." The state appealed, and last month the state won a less-than-resounding victory in the U.S. Supreme Court.
Speaking for the high court's majority, Justice John Paul Stevens remarked that Caballes had no right to possess marijuana in the first place. The cops' use of a well-trained narcotics-detection dog, during a brief and lawful traffic stop, "does not rise to the level of a constitutionally cognizable infringement" on his rights of privacy. The case now goes back to the Illinois courts for renewed proceedings.
Justices David Souter and Ruth Bader Ginsburg separately dissented. They had by far the better of the analysis. They found it "remarkable" that Trooper Daniel Gillette should have stopped Caballes for speeding at 71 miles per hour in a 65-mph zone. It also struck them as curious that Trooper Craig Graham, who just happened accidentally to learn of the speeding incident over police radio, should have rushed instantly to the scene with his faithful pooch at his side. No one had requested his aid.
Souter vented his skepticism over the entire affair. "The infallible dog," he said, "is a creature of legal fiction. ... Their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less-than-perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine."
Souter cited a case from the Tenth Circuit in 1997 that involved a dog with only a 71 percent accuracy rate. In a case from the Seventh Circuit, a sniffing dog gave false positives 38 percent of the time. Said Souter: "The evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times."
In her dissenting opinion, Justice Ginsburg was careful to defend the use of dogs in detecting explosives. Such searches are "an entirely different matter." To bring an intimidating animal to the scene of a routine traffic stop cannot be justified without cause to suspect wrongdoing.
When the Supreme Court resumes oral argument on Feb. 22, it will have on its docket at least four petitions for review of Fourth Amendment cases. In Florida v. Rabb, No. 04-914, police stopped a motorist for driving too slowly. They found remains of a cannabis cigarette in the ashtray. This led to surveillance of his residence in Hollywood; the surveillance brought in a sniffing dog. This faithful beast, name of Chevy, alerted at the front door. Officers obtained a warrant. Behind the door they found 64 marijuana plants were growing. The trial court suppressed the evidence, and the state appealed. Such is the course of constitutional law.
Companion cases from Houston (04-825 and 04-874) rely upon the detective skills of Rocky, a drug-sniffing dog that sniffed out 660 grams of methamphetamine behind a garage door. The fourth pending case, Illinois v. Gilbert, No. 04-913, closely parallels last month's Caballes case and presumably will be sent back to the Appellate Court of Illinois. Waiting in the wings is a Maryland case involving a police dog that sniffed drug activity behind the door of an apartment.
Enough! Of the making of Fourth Amendment cases there shall be no end. I cannot defend the fellow in Houston who was dealing with methamphetamine. That is truly bad stuff. As for the home-grown pot in Florida, forgive me for the anarchical thought that maybe the minions of law enforcement — including Rocky, Chevy and friends — could be more usefully deployed doing something else.
(Readers are invited to send dated citations of usage to Mr. Kilpatrick. His e-mail address is kilpatjj@aol.com.)
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