defenses in drug dog detection cases -...

Defenses in Drug Dog Detection Cases

NORML 2005 Legal Seminar

Key West, FL

--------------------------------

Jeffrey Steinborn, Esq. F. Hunter MacDonald, Esq.

1800 Seattle Tower 1218 Third Avenue Seattle, WA 98101

206-622-5117 [email protected]

[email protected]

mailto:[email protected]

Defenses in Drug Dog Detection Cases

by Jeffrey Steinborn and F. Hunter MacDonald

NORML 2005 Legal Seminar Key West, FL

TABLE OF CONTENTS I. The Law: IS THIS A SEARCH?

by Jeffrey Steinborn

1. CABALLES - NO! – (pp. 4 – 70)

A. Oral Argument B. Majority Opinion C. Dissents

2. STATE v. DEARMAN - from the Peoples Republic of Washington – YES! -- The Dog Sniff of a Home is a Search and Requires a Warrant - (pp. 71 - 78)

3. “CURBING THE DOG” – Excerpts from a Pending Article by Professor Lewis Katz – (pp. 79-82)

II. Practice: IS THIS RELIABLE EVIDENCE? by F. Hunter MacDonald

1. K-9 Checklist – Evidentiary Arguments 2. Interviewing the Dog Handler

III. EXAMINING THE EXPERTS 1. The Dog Handler Interview - (Prosecution Witness) 2. The Odor Expert - (Defense Witness)

IV. DISCOVERY OF DOG RECORDS 1. Motion to Compel - Excerpt from 5th Circuit Case 2. Great Case on the Issue – Cedano-Arellano – 9th Circuit 3. Subpoena for the Dog Handler’s Personal Logbook/Notes

V. MISCELLANEOUS – 2005 Articles 1. Associated Press Article on “Crime-Fighter Dogs” by Rebecca Carroll 2. S.W.A.T. Article by Claire Wolfe 3. DrugSense Weekly Article by Stephen Young

I. LAW: IS THIS A SEARCH? 1. CABALLES ORAL ARGUMENT (with my apologies for the formatting) IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - -X ILLINOIS, : Petitioner : v. : No. 03-923 ROY I. CABALLES. : - - - - - - - - - - - - - - - -X Washington, D.C. Wednesday, November 10, 2004 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:02 a.m. APPEARANCES: LISA MADIGAN, ESQ., Attorney General, Chicago, Illinois; on behalf of the Petitioner. CHRISTOPHER A. WRAY, ESQ., Assistant Attorney General, Criminal Division, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioner. RALPH E. MECZYK, ESQ., Chicago, Illinois; on behalf of the Respondent.

1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 LISA MADIGAN, ESQ. 4 On behalf of the Petitioner 3 5 CHRISTOPHER A. WRAY, ESQ. 6 On behalf of the United States, 7 as amicus curiae, supporting the Petitioner 18 8 RALPH E. MECZYK, ESQ. 9 On behalf of the Respondent 27 10 REBUTTAL ARGUMENT OF 11 LISA MADIGAN, ESQ. 12 On behalf of the Petitioner 50 13 14 15 16 17 18 19 20 21 22 23 24 25 Alderson Reporting Company

1 P R O C E E D I N G S 2 (10:02 a.m.) 3 JUSTICE STEVENS: We will now hear argument in 4 Illinois against Caballes. 5 General Madigan. 6 ORAL ARGUMENT OF LISA MADIGAN 7 ON BEHALF OF THE PETITIONER 8 MS. MADIGAN: Thank you, Justice Stevens, and 9 may it please the Court: 10 This Court has made clear on several occasions, 11 including 21 years ago in Place and 4 years ago in Edmond, 12 that a sniff by a drug-detection dog is not a Fourth 13 Amendment search, and if something is neither a search nor 14 a seizure, then it requires no Fourth Amendment 15 justification. 16 JUSTICE SOUTER: Well, we've held that it's 17 certainly not a -- a full-blown search. It's not a search 18 in the classic sense, but a Terry stop isn't an arrest in 19 -- in the classic sense either. We -- we have said that 20 that is a kind of seizure. 21 Why do -- I think your -- your argument assumes 22 that this for -- for purposes of search analogies that 23 something is either a -- a full-dress search or it's not a 24 search at all. Why isn't there a -- a possibility of -25 of a kind of middle ground searches just as there is on

1 seizures? 2 MS. MADIGAN: Well, this Court made clear in 3 Arizona v. Hicks that it did not want to go down the road 4 of creating something known as a quasi-search so that 5 courts and police officers would be in the position of 6 trying to determine whether or not something was a search 7 or not. 8 JUSTICE SOUTER: Oh, I -- I can -- I can just 9 imagine the problems, but I mean, what -- I think what's 10 -- what the -- what's bothering me about the case is that 11 if we persist in -- in saying that -- that it's -- that 12 it's an either and or question with no question with no 13 possible gradation, then I assume nothing prevents the 14 police from taking the dogs through every municipal garage 15 in the United States and I suppose there's nothing that 16 prevents the police from taking the dogs up to any 17 homeowner's door, ringing the bell, and seeing if the dog 18 gets a sniff of something when the door is opened. We're 19 -- we're opening rather a -- a large vista for -- for dog 20 intrusions, and -- and that's what's -- that's what's 21 bothering me. Why -- why should we -- why should we open 22 that vista if there is a possibility of a -- of a middle 23 ground that would prevent it? 24 MS. MADIGAN: Well, I would start with the 25 reality that dog sniffs by their very nature, as this

1 Court recognized in both Place and Edmond, are very unique 2 both in terms of the manner in which the sniff is 3 conducted, as well as the content of -- of the information 4 that the sniff reveals, so that a dog sniff is only going to be able to reveal the presence or absence of 6 contraband. And this Court has recognized that 7 individuals have no privacy interest in the possession of 8 contraband. 9 JUSTICE GINSBURG: Does that imply that your answer is yes to the question? If we say, as you urge, a 11 dog sniff is not a search, then the police are free to 12 parade up and down every street in the country with dogs 13 sniffing car trunks. 14 MS. MADIGAN: Yes. Because a sniff is not a search, a police officer would be able to take a 16 narcotics-detection dog down the street with him or her. 17 I can tell you that because of the limited resources -18 and this is a point brought up in the Illinois Association 19 of Chiefs of Police amicus brief -- that that is not likely to occur. 21 In addition, I can also tell you that in the 22 State of Illinois, the Illinois State police do not train 23 their dogs nor do they use their dogs on people. They 24 only use them on objects. But yes, in answer to both of your questions,

1 because a dog sniff does not constitute a search, dogs 2 could be used to walk down streets. They could, 3 hypothetically, be used in parking lots, and at times they 4 are used in parking lots. 5 JUSTICE SCALIA: But they are used. I mean, we 6 don't have to make it up. From cases we've had here, we 7 know that they're used in places like bus depots to -- to 8 sniff luggage that -- that passengers have carried through 9 on -- on buses. 10 MS. MADIGAN: Yes, they are. 11 JUSTICE SCALIA: And the republic seems to have 12 survived. 13 MS. MADIGAN: I agree. 14 JUSTICE GINSBURG: One could characterize those 15 episodes under the, quote, special needs doctrine. I 16 mean, we are exposed to searches at airports that we would 17 not put up with walking up and down an ordinary street. 18 So the dogs at the terminals one expects nowadays. 19 JUSTICE SCALIA: No. These aren't sniffs for -20 for explosives. These are sniffs for drugs and -- and 21 these -- these are not buses that are coming in from 22 France. They're coming in from one American city to 23 another. And -- and there's no more need in -- in that 24 case than there was in this case. It was just a good -- a 25 good place to find criminals who were carrying unlawful

1 drugs. 2 MS. MADIGAN: In the present case, Mr. Caballes 3 was traveling from Las Vegas, Nevada apparently on his way 4 to Chicago, Illinois. He was pulled over for speeding. 5 Another officer overheard when Master Sergeant Gillette 6 called in to dispatch that he effected -7 JUSTICE STEVENS: May I interrupt, General 8 Madigan? 9 MS. MADIGAN: You may. 10 JUSTICE STEVENS: He was pulled over for 11 speeding at 71 miles an hour in a 65 mile an hour zone on 12 I-80. Right? 13 MS. MADIGAN: Yes, that is correct, Justice 14 Stevens. 15 JUSTICE STEVENS: Did they know in advance that 16 he was someone to look for? Because I don't imagine you 17 arrest everybody on I-80 that goes 70 miles an hour. I've 18 done it many times myself. 19 (Laughter.) 20 JUSTICE SCALIA: Inadvertently. 21 (Laughter.) 22 MS. MADIGAN: We always like to have you in 23 Illinois. 24 Obviously, the Illinois State Police have the 25 ability to pull somebody over whether they're going 1 mile

1 over the speed limit or 26 miles over the speed limit, but 2 there is nothing in the record to indicate that they were 3 looking for Mr. Caballes as he was traveling eastbound on 4 I-80 towards Chicago. 5 JUSTICE STEVENS: Does the record tell us what 6 time of day it was? 7 MS. MADIGAN: Yes. It was approximately 5:10 8 p.m. 9 JUSTICE STEVENS: Thank you. 10 JUSTICE KENNEDY: You -- you answered one of the 11 earlier questions about the possible intrusiveness of dogs 12 everywhere by saying, well, you don't have a privacy 13 interest in contraband, but that's never true. You don't 14 have a privacy interest in the murder victim's body, but 15 you still have to have a warrant to go in and get it. So 16 that -- that just doesn't work unless I missed something. 17 MS. MADIGAN: You do not have a privacy interest 18 in contraband, as this Court has recognized in the 19 Jacobsen case. 20 JUSTICE KENNEDY: Yes, but you have a privacy 21 interest in your person and in your place, and that's what 22 we're talking about. So that seems to me that that just 23 doesn't help us. 24 MS. MADIGAN: Well, there is a distinction 25 that's made in terms of Fourth Amendment protections that

1 are given to homes and people versus cars. Ever since the 2 Carroll case, it has been recognized that a warrantless 3 search of a car can be done if they found probable cause. 4 JUSTICE KENNEDY: But that's because of the 5 nature of the place being searched not because of the 6 nature of what you're searching for. 7 MS. MADIGAN: Correct. 8 JUSTICE SCALIA: Not necessarily. 9 JUSTICE KENNEDY: So it just can't be that -- so 10 the fact that you don't have a privacy interest in 11 contraband, it doesn't seem to me -- I -- I don't think 12 you need that argument. 13 JUSTICE SCALIA: I think you should use it. 14 (Laughter.) 15 MS. MADIGAN: I -- I plan on continuing to use 16 it. 17 JUSTICE SCALIA: Why -- why do you -- are you 18 sure that Kyllo, you know, the -- the imaging case, would 19 have come out the same way if the only thing -- the only 20 thing -- that the imaging could pick out is not any of the 21 other private activities in the home, but the only thing 22 it could possibly discern is a dead body with a knife 23 through the heart? Are you sure the case would have come 24 out the same way? I'm not at all sure. 25 MS. MADIGAN: I would hope the case would come

1 out differently than -2 JUSTICE O'CONNOR: Well, what -3 JUSTICE KENNEDY: Do you have any authority for 4 that other than Justice Scalia's speculation about how 5 this -6 (Laughter.) 7 JUSTICE KENNEDY: -- how his Kyllo case might 8 have been written? 9 JUSTICE O'CONNOR: What about a house and -- and 10 the use of a dog to sniff around a door access or a house 11 just because the police think, you know, it's possible 12 this is somebody growing marijuana in the basement or 13 something? Is that all right? 14 MS. MADIGAN: I would argue that, yes, it is all 15 right to walk a dog around a house, but then as Justice -16 JUSTICE O'CONNOR: How do you -- how do you 17 reconcile that with the heat sensor case then? 18 MS. MADIGAN: The thermal imager that was used 19 in the Kyllo case was able to reveal intimate details of 20 the house. A dog sniff is only going to reveal the 21 presence or absence of contraband, and because of that, 22 that's where we suddenly get into the tension between 23 Kyllo and Place and -- 24 JUSTICE STEVENS: What if the dogs get a little 25 more sophisticated in the future and can also smell a

1 certain kind of perfume, something like that? Would then 2 the whole analysis change? 3 MS. MADIGAN: Well, then you would end up in a 4 situation as to whether or not an officer had probable 5 cause when a dog, in fact, alerted. If he was alerting to 6 the presence of perfume as opposed to narcotics, there -7 JUSTICE STEVENS: And how would you know whether 8 the -- the dog -- I don't think the dog alerts, as I'm 9 alerting, for one reason or another. He just alerts. 10 MS. MADIGAN: Well, they're very well trained 11 dogs. In fact, in the State of Illinois, the dogs and 12 their handlers go through 320 hours of training, and 13 they're specifically trained to only alert to narcotics. 14 JUSTICE STEVENS: I just learned this morning 15 that some very well trained dogs that are trained to alert 16 for explosives will also alert for certain kinds of rubber 17 in a tire. They didn't realize that. And I think it's 18 entirely possible that dogs would -- there will be false 19 alerts by -- by dogs because it's triggered by something 20 that -- that is not really anticipated. 21 MS. MADIGAN: One of the things that does take 22 place during the training of these narcotics-detection 23 dogs is to make sure that they are not alerting to things 24 that are not narcotics or -- I don't know exactly how the 25 explosive training is conducted because we don't train our

1 dogs in Illinois for explosives, but they purposely train 2 them on narcotics not to alert to plastic wrap that is 3 frequently the container used for narcotics, not -4 JUSTICE STEVENS: So you would agree the 5 analysis would be different if there could be an innocent 6 cause of the alert as well as the contraband being the 7 cause of the alert. 8 MS. MADIGAN: It depends. The analysis would be 9 different if the dog was known to or had been trained to 10 actually alert to the non-contraband. 11 JUSTICE SCALIA: Or if that happened a large 12 percentage of the time. I mean, surely you'd concede that 13 the search is unreasonable if, for every -- every one 14 time, you -- you make somebody open his bag because the 15 dog actually smells narcotics, 99 times you make somebody 16 open his bag because he has apples in it. I mean, 17 wouldn't that go to the reasonableness of -18 MS. MADIGAN: Well, it would actually go to 19 whether or not that dog provided -- that dog's alert 20 provided probable cause to conduct a search. 21 JUSTICE KENNEDY: Well, do we -- we don't have 22 the probable cause question before us, do we? 23 MS. MADIGAN: You do not have the probable cause 24 question before you. This dog was determined to be 25 reliable by the trial court and the Illinois Appellate

1 Court, and it was not part of the Illinois Supreme Court's 2 decision. 3 JUSTICE BREYER: What again in your view is the 4 best distinction from Kyllo? 5 MS. MADIGAN: Two things. One, the thermal 6 imager used in Kyllo was able to reveal intimate details 7 that individuals -8 JUSTICE O'CONNOR: Like what? I thought it was 9 just heat? 10 JUSTICE SCALIA: Yes. 11 MS. MADIGAN: There was some disagreement on the 12 Court about exactly what it revealed, but in terms of 13 intimate details, it then allowed somebody -14 JUSTICE O'CONNOR: Excuse me. What details? It 15 is a device that measures heat. 16 MS. MADIGAN: Because it could measure heat, it 17 could also potentially determine when somebody was taking 18 a bath, taking a sauna, and doing other intimate things in 19 the house. 20 JUSTICE GINSBURG: I think there was a reference 21 to my lady's bath in the opinion. 22 JUSTICE SCALIA: A nice turn of phrase, as I 23 recall. 24 (Laughter.) 25 JUSTICE BREYER: What was -- and what was the

1 second? 2 MS. MADIGAN: The second one would be the 3 distinction between houses and cars and the protections 4 that houses are given under the Fourth Amendment, which 5 are far greater than the protections that people have in 6 their cars. 7 JUSTICE KENNEDY: Well, so you think if this 8 were a house, that the Kyllo case would apply? 9 MS. MADIGAN: If this were a house in the 10 situation, it would certainly bring out the tension 11 between Kyllo and Place -12 JUSTICE SCALIA: Wasn't there -- didn't Kyllo -13 wasn't what -- what the Court was worried about in Kyllo 14 not just the relatively crude heat imaging that existed in 15 the case before it, but the prospect of more and more 16 sophisticated heat imaging which -- which we had evidence 17 was already in development that would enable you to see 18 people moving around a room? I thought the case referred 19 to that. Now, are we going to have more and more -20 what's going to happen with dogs? I -- I can't imagine 21 that -- that this thing is going anywhere other than 22 smelling narcotics and smelling bombs. 23 JUSTICE STEVENS: Well, but you would argue that 24 the same rationale should apply if, instead of using dogs, 25 you had some sophisticated device that would buzz or ring

1 a bell or something whenever the odor of -- of narcotics 2 was present, wouldn't you? 3 MS. MADIGAN: I would argue that. So if there 4 was an ability to create a -- a mechanical dog, for 5 instance, we would again say that the use of a mechanical 6 dog sniff would not be a search and therefore would not -7 JUSTICE STEVENS: There's nothing magical about 8 the fact that it's an animal rather than a sophisticated 9 device. It has better detection capacity than a human 10 being does. That's the only difference. 11 MS. MADIGAN: You are correct. 12 JUSTICE SOUTER: In -- in discussing the -- the 13 answer to the -- the Kyllo issue, you -- you place an 14 emphasis on the protection given to a house. Would you go 15 back to Justice O'Connor's question and my earlier 16 example? Is it still your answer that the police can walk 17 dogs around the foundation of the house or take a dog to 18 the front door and ring the bell and see what it -- what 19 it sniffs when the door is opened -20 MS. MADIGAN: I would -21 JUSTICE SOUTER: -- without there being a search 22 and hence no Fourth Amendment concern? 23 MS. MADIGAN: Yes, Justice Souter, I would say 24 that that is possible because the sniff itself is not a 25 search and it only reveals the presence or absence of

1 contraband, which is something that the individual does 2 not have privacy expectations -3 JUSTICE SOUTER: Okay. But then -- then the -4 then there is no significance in the house. 5 MS. MADIGAN: There is potentially significance 6 in the house because the -7 JUSTICE SOUTER: Well, when does -- when does it 8 occur? I mean, if -- if -- first you say the -- the house 9 is -- is a matter of significance for Kyllo analysis. 10 We're trying to draw a distinction, if there is one, 11 between Kyllo and this, and you say they can go to the 12 house. They can sniff the foundations. They can go to 13 the front door, et cetera. I don't see that the house, in 14 fact, is functioning as a distinction at all. 15 MS. MADIGAN: This Court's precedents have shown 16 us that in fact Fourth Amendment protections are higher in 17 the home than they are in the car. 18 JUSTICE SOUTER: Oh, I realize that, but it 19 seems to me your basic argument, if I understand it, is 20 there is simply no search here, and because there is no 21 search here, it doesn't matter whether you're dealing with 22 a house or a parking lot or a car on the road. No search 23 is no search. So for purposes of -- if I -- I want to 24 understand your case, and as I understand it, for purposes 25 of your case, there is no significance in the house

1 because there doesn't have to be. The question doesn't 2 arise because there's no search. Is that -3 MS. MADIGAN: Justice Souter, that is absolutely 4 correct. A search, as far as we are concerned -- and I 5 believe it's based on the precedents of this Court -- is a 6 sniff is not a search, and therefore it requires no Fourth 7 Amendment justification. 8 JUSTICE GINSBURG: You said there's no 9 disturbance of one's privacy and so that distinguishes the 10 dog sniff from some other governmental intrusions. But 11 dogs can be frightening, humiliating. It seems to me that 12 there is some association with the idea that I have a 13 right to be let alone by my government and having a large 14 dog circle my car. 15 MS. MADIGAN: There are in this country millions 16 of dogs, many of the types of dogs that are used by 17 narcotics detection teams, such as Labrador retrievers and 18 shepherds, are identical to the pets that people own. We 19 encounter them in the parks, on the streets, and I would 20 contend that an officer cannot be in the position of 21 making a determination as to whether or not the individual 22 that he encounters is going to be frightened by the dog. 23 Mr. Justice Stevens, if I may, I'd like to 24 reserve the remainder of my time. 25 JUSTICE STEVENS: Yes, you may save your time.

1 MS. MADIGAN: Thank you. 2 JUSTICE STEVENS: Mr. Wray. 3 ORAL ARGUMENT OF CHRISTOPHER A. WRAY 4 ON BEHALF OF THE UNITED STATES, 5 AS AMICUS CURIAE, SUPPORTING THE PETITIONER 6 MR. WRAY: Justice Stevens, and may it please 7 the Court: 8 There's no dispute that respondent here was 9 lawfully stopped based on probable cause. There's also no 10 dispute that the entire stop took less than 9 minutes. 11 The question is whether a second officer's use of a drug 12 dog to sniff outside of that car during those 9 minutes 13 required some separate Fourth Amendment justification. 14 JUSTICE SCALIA: Do you agree with -- with 15 General Madigan that it doesn't make any difference 16 whether the -- the dog is a -- is a mechanical instrument 17 or not? Do you agree it makes no difference? 18 I thought that one of the -- one of the points 19 in -- in the imaging case was that this was a new 20 technology which didn't exist and that although the 21 ordinary rules in 1791 was that there was no search unless 22 -- you know, unless you enter the house or unless you -23 you physically intrude upon the person's -- at least the 24 person's clothes, we made an exception to that rule 25 because of this new technology that enabled you to find

1 out things without having to intrude into the home or into 2 the person. Now, but -- but this is not a new technology. 3 This is a dog and -- and they had that ability in 1791 4 just as they had it today. And the rule that when there's 5 no intrusion, there's no search -- there's no reason to 6 depart from that rule with respect to a dog although there 7 would be with respect to some sophisticated new technology 8 that would enable you to find out all sorts of things. 9 MR. WRAY: That's correct. 10 JUSTICE SCALIA: It seems to me you shouldn't -11 you shouldn't assume that -- that the fact that this is a 12 canine makes no difference. 13 JUSTICE STEVENS: Are you going to rely on the 14 fact that dogs were trained to do this sort of thing back 15 in the 18th century? 16 MR. WRAY: I'm going to rely on -- on three 17 distinctions between this case and Kyllo, Justice Stevens. 18 The first is that the three points that the 19 Court looked at in Kyllo were: one, as has already been 20 referenced, the fact that it's a home, the most sacred 21 place under the Fourth Amendment; second, that it revealed 22 certain intimate details; and third, that that was a 23 technology -24 JUSTICE STEVENS: It was potentially revealed. 25 It did not actually reveal any details.

1 MR. WRAY: As -- as General Madigan referenced, 2 there is obviously some disagreement within the Court on 3 that issue, but the -- the fact was that the technology in 4 Kyllo revealed information about heat in the house which 5 could be thought to reveal intimate details about the 6 house. 7 The third point in Kyllo, which I think Justice 8 Scalia is referring to, is that that was technology that 9 was not in general public use. Dogs have been used by law 10 enforcement across the country since Place and before to 11 sniff everything from -12 JUSTICE STEVENS: But not in 1790. 13 MR. WRAY: Not -14 JUSTICE KENNEDY: Did you come here -15 JUSTICE SCALIA: You don't know that, do you? 16 JUSTICE KENNEDY: Did you come here having 17 researched all about dogs in 1790? 18 (Laughter.) 19 MR. WRAY: Justice Kennedy, I cannot, I regret 20 to say, tell you what dogs were doing in 1790. I can tell 21 you -- and this is maybe a factual thing that might be of 22 interest to the Court -- that the dogs who train -- who 23 are trained to alert to detect things -- it's not that 24 they are sniffing things that all dogs can't already 25 smell. It's rather that they are trained to let the

1 handler know that they've smelt whatever it is they've 2 been trained to smell. So the smells that are coming out 3 of Respondent Caballes' car are exposed to every dog. 4 JUSTICE STEVENS: But do you really think this 5 would be a different case if the officer had a device that 6 did exactly what the dog -- dog did? 7 MR. WRAY: We -- our position would still be, 8 Justice Stevens, that as long as the device only revealed, 9 as this does -10 JUSTICE STEVENS: I would think you'd take -11 MR. WRAY: -- the absence or presence of 12 contraband, it would still be constitutional. 13 JUSTICE SOUTER: Why do you rely on the -- in -14 in distinguishing Kyllo, why do you rely on the house if 15 there's no search? Why do you have to rely on the fact 16 that there was a house involved there? You -- you listed 17 that as one of your three distinctions. 18 MR. WRAY: We don't believe we have to rely on 19 it, Justice Souter. We do believe that there were three 20 things that were important in Kyllo. The fact that it was 21 a home was one of those things. Again, the -- the fact of 22 a home, the fact that it was technology not in general 23 public use, and -24 JUSTICE SCALIA: But that didn't go to whether 25 it was a search or seizure. I think it goes to whether it

1 was an unreasonable search or seizure. Don't you think 2 so? That what -- what might be unreasonable with respect 3 to a home would not be unreasonable with respect to a 4 suitcase? 5 MR. WRAY: Yes, Justice Scalia, that's correct. 6 JUSTICE SOUTER: But -- but your -- is -- is it 7 -- I understand it to be your position that there simply 8 is no search here. Period. 9 MR. WRAY: That is correct, Justice Souter. 10 JUSTICE SOUTER: Because it's a dog sniff. 11 MR. WRAY: We would -- we would submit this is 12 not a search because, as this Court recognized in both 13 Place and Edmond -- and the Jacobsen case is also 14 significant because the Court said that the reason this is 15 not a search, there using the dog sniff by analogy, is 16 because it compromises no legitimate privacy interest. 17 The language of the Court in Place is 18 significant because it says that we are aware of no other 19 investigative procedure that is so limited in both the 20 manner in which the information is obtained and in the 21 content of the information revealed. That language goes 22 not only to why it's not a Fourth Amendment search but why 23 the use of the dog sniff during a probable cause traffic 24 stop here, where it doesn't prolong the duration, does not 25 transform an otherwise lawful seizure into an unlawful

1 one. 2 JUSTICE SOUTER: All right. Do you -- do you 3 think it's -- it's reasonable to say that if the police 4 take dogs simply onto private property to sniff the 5 foundations of houses, if they take dogs to the front door 6 and ring the bell so that they hope the door will open, 7 that there is -- there is no compromise of a privacy 8 interest? 9 MR. WRAY: Well, there would be a question as to 10 whether the officer, the human officer, that is, could be 11 on private property -- I take it from your hypothetical, 12 Justice Souter -- in the first place. But -13 JUSTICE SOUTER: Well, I mean, the Fourth 14 Amendment analysis after Katz doesn't -- doesn't depend on 15 trespass, and -- and you have said up to this point that 16 there is no search. And then you have quite rightly said 17 that we have had as a consideration in our minds 18 analytically whether it's fair to say that what the police 19 were doing involved any compromise of a privacy interest. 20 So I'm assuming -- I'm assuming that the police 21 can at least get to the foundation with a dog and they can 22 certainly walk up to the front door and ring the bell. 23 And if they do that with a dog, for the purpose of letting 24 the dog sniff and alert, if there's anything to alert to, 25 is it fair to say that there is no compromise of the

1 privacy interests of the people who own the house? 2 MR. WRAY: Our position would be -- the answer 3 to that question is yes. The Court does not have to 4 resolve that issue to decide this case. 5 JUSTICE SCALIA: Of course, we could separate 6 the home from the -- from what happened here and still 7 validate the search here if we held that it was a search, 8 but was a reasonable one since all you find is that the 9 person was carrying contraband. It's the only thing 10 that's disclosed. Whereas, if you -- if you did the same 11 thing with -- with regard to a house, which is a more 12 sacrosanct part of one's privacy, it might be an 13 unreasonable search. We -- we could reach that result if 14 we wanted to, couldn't we? 15 MR. WRAY: I think you could, Justice Scalia. 16 It's important to distinguish -17 JUSTICE O'CONNOR: On the other hand, if it were 18 a drug-selling neighborhood or around a park where drugs 19 are frequently sold, would it be legitimate in your view 20 for the police to take drug-sniffing dogs and walk around 21 the public street where cars are parked around that known 22 drug-selling area and see if they could sniff out some 23 contraband in the cars? Is that okay? 24 MR. WRAY: We believe it would be okay, Justice 25 O'Connor. It would be important not to use the dogs in a

1 way to constitute a new seizure because in that case, 2 you're not talking -3 JUSTICE O'CONNOR: I'm -- I'm assuming parked 4 cars. You haven't interrupted anybody. Nobody is in the 5 car, parked on a public street. 6 MR. WRAY: In that instance, we believe that 7 would be acceptable under the Fourth Amendment. 8 JUSTICE KENNEDY: So you -- you give no 9 significance to the fact that this dog sniff was in the 10 course of a lawful stop where the citizen's rights had 11 already been curtailed to a significant extent? 12 MR. WRAY: We believe, Justice Kennedy, that the 13 -- that that context here makes this an even easier case 14 under the Fourth Amendment, that is, the dog sniff not 15 being a search compromising no legitimate privacy 16 interests during the course of a lawful probable cause 17 stop, which we know from Atwater -- the officer could have 18 simply placed the woman under full custodial arrest and 19 taken her down to jail -- was not an activity that 20 transformed the seizure into an unlawful one. 21 The Illinois Supreme Court's concern and where 22 we think they got off track was that they were concerned 23 that the use of the dog sniff during this 9-minute traffic 24 stop was that it transformed it -- it used the language 25 that it transformed the sniff into a drug investigation.

1 We would submit that the Fourth Amendment is about the 2 reasonableness of searches and seizures and not about what 3 the scope of the government's investigation is. And in 4 that sense, the court got off track. 5 These -- this is a -- this is a means that law 6 enforcement has been using properly in reliance on this 7 Court's decision in Place, reinforced just 4 years ago in 8 Edmond, for more than 21 years to detect everything from 9 drugs to bombs to smuggled -- we have beagles in the 10 airports that smuggle produce that's being smuggled in. 11 Dogs are used all over the country with great 12 effectiveness in law enforcement, and the -- we -- that is 13 a -- a technique that we want to encourage law enforcement 14 to pursue. 15 JUSTICE GINSBURG: Are there -- are there any 16 manuals for law enforcement officers with respect to the 17 time and place of using dogs, or it's just open season? 18 MR. WRAY: Justice Ginsburg, there is extensive 19 training of law enforcement to use dogs. It's a multi20 week program that requires -21 JUSTICE GINSBURG: I don't mean the training to 22 make the dog alert properly. How the police will use 23 them, when, under what circumstances. 24 MR. WRAY: Justice Ginsburg, each agency has 25 different policies about when they use dogs and what

1 purpose they're trained for. In this case, as you heard, 2 they're being used in the context of highway interdiction, 3 and so they're trained to sniff around vehicles 4 specifically. 5 JUSTICE STEVENS: Thank you, Mr. Wray. 6 MR. WRAY: Thank you. 7 JUSTICE STEVENS: Mr. Meczyk. 8 ORAL ARGUMENT OF RALPH E. MECZYK 9 ON BEHALF OF THE RESPONDENT 10 MR. MECZYK: Justice Stevens, and may it please 11 the Court: 12 The State does not offer any Fourth Amendment 13 justification whatsoever in regards to -- in this case. 14 It argues instead that there -- there was no need for any 15 justification, and that is incorrect for two reasons. 16 The dog sniff in this case invaded a Fourth 17 Amendment interest of Mr. Caballes in the context of a 18 routine traffic search. The sniff in this case was, in 19 fact, a search. Albeit it was a limited intrusion, it was 20 still a search nonetheless. 21 JUSTICE SCALIA: Why -- why do you say that? I 22 mean, is -- is anything that I observe a search? I mean, 23 suppose I -- I'm a policeman and -- and I'm looking out 24 for, I don't know, people with a nervous tic because I 25 think that that might be somebody who's about to commit a

1 crime or has committed a crime. Have I searched that 2 person because I -- I observe something external? 3 MR. MECZYK: Any observation I think -4 JUSTICE SCALIA: Is there no difference between 5 an investigation and a search? 6 MR. MECZYK: There is in this case -- see if I 7 understand you correctly. 8 JUSTICE SCALIA: No. It seems to me your brief 9 and -- and your statement here both seem to assume that 10 there's a search whenever the police investigate. 11 MR. MECZYK: Well -12 JUSTICE SCALIA: But that's not so. They -- one 13 can investigate without searching. 14 MR. MECZYK: Well, to -- see if I understand 15 your question correctly. If you're looking with someone 16 with that nervous tic, that would be something in open 17 view or plain view. That's not the type of investigation 18 I'm talking about. There is in fact, most respectfully, 19 an investigation technique here. There's an investigation 20 measure. 21 JUSTICE BREYER: Yes, but that isn't the -22 JUSTICE KENNEDY: What about a policeman who 23 smells marijuana coming out of a car or a residence. He's 24 walking down the street, public street, and he smells 25 marijuana.

1 MR. MECZYK: The only way I can analogize that, 2 Justice Kennedy, is that it -- that is akin to a plain 3 smell or plain view. 4 JUSTICE BREYER: All right. So once you say 5 that, you realize that there are billions and billions of 6 searches that go on every day that the police don't have 7 to justify at all. They just look around. 8 MR. MECZYK: I don't -9 JUSTICE BREYER: Okay? There are billions of 10 them. So the real question is do they have to give a 11 justification for this. And the argument that they don't 12 is simply that it's not in the person's house. When you 13 go out in a public place, even in your car, you might run 14 into people or animals with sharp noses. And a lot of 15 them can detect marijuana. And you know, maybe it's a 16 Limburger cheese. I don't know. 17 (Laughter.) 18 JUSTICE BREYER: But people are sniffing things 19 that they don't sniff through windows into your house, but 20 they do get odors in your car on the street. So this is 21 the kind of search. Yes, it's a search, but one that the 22 police don't have to justify. 23 MR. MECZYK: But this is with a specific 24 investigative tool. 25 JUSTICE BREYER: Well, it's a specific

1 investigative tool when I put on my glasses to look 2 through a window. 3 MR. MECZYK: Well, this is -4 JUSTICE BREYER: I don't see why it has to -5 why that matters if in fact all -- if you go into a car, a 6 police car, and you have -- drive through the neighborhood 7 and look around, you are using a specific investigative 8 tool, the police car, to look around and find out what's 9 going on. 10 MR. MECZYK: This is a far more -- most 11 respectfully, this is a far more sophisticated 12 investigative tool. 13 JUSTICE BREYER: What I'm trying to get to is in 14 my own mind it's not a question of the tools. It's a 15 question of the expectation of privacy. 16 MR. MECZYK: Then maybe I can see if I could 17 answer your question. Mr. Caballes in this case indeed 18 had an expectation of privacy. When he was asked by the 19 police officer in this case if he can consent to the 20 search, he said no. He did not want that law enforcement 21 officer looking in -22 JUSTICE KENNEDY: But that never -23 JUSTICE O'CONNOR: Yes, but both Place and 24 Edmond, opinions from this Court, said sniffs are not 25 searches.

1 MR. MECZYK: Well, I -2 JUSTICE O'CONNOR: Do you want us to reverse 3 that? 4 MR. MECZYK: Justice O'Connor, I do not -- I do 5 not want you to reverse Place. Place, no pun intended -6 JUSTICE O'CONNOR: Well, and Edmond also said 7 it's not a search. 8 MR. MECZYK: Well, there were -9 JUSTICE O'CONNOR: It was the stop of the cars 10 in that case that caused the result. 11 MR. MECZYK: The way I understand Place it was 12 contextually limited. In Place, the whole purpose of the 13 seizure, the taking of the luggage, was to submit it to a 14 drug-detection sniff. That is the opinion authored by 15 Your Honor, that specifically stated -- I'm not going to 16 say took for granted, but it specifically stated that the 17 -- the context -- and that's what we have to look at Place 18 -- the -19 JUSTICE O'CONNOR: Well, fine. We had a context 20 there where we supported it, but in the process said the 21 sniff, the dog sniff, was not a search. 22 MR. MECZYK: Well, I -- I -23 JUSTICE O'CONNOR: So you want us to say 24 something else here. 25 MR. MECZYK: Well, I think that first in -- in

1 that case, in Place, the -- the Court -2 JUSTICE O'CONNOR: The context here was a 3 legitimate traffic stop. 4 MR. MECZYK: But it was -- unlike Place, the 5 legitimate traffic stop here was completely unrelated to 6 the purpose of the dog sniff. There was an absolute -7 JUSTICE O'CONNOR: The dog sniff is not a 8 search. What difference does it make? 9 MR. MECZYK: Well, again, I would again 10 respectfully assert that the dog sniff is a search and the 11 way Place was decided, first, the decision had to be made, 12 in the context of -- of that case, what was worse. What 13 were they going to do with the luggage? Were they going 14 to open the luggage first? So, of course, the Court had 15 to decide in that case that it wasn't that kind of a -- a 16 search. It wasn't as egregious a search as actually 17 opening the luggage. 18 Then you -19 JUSTICE O'CONNOR: This -- the trunk of the car 20 didn't have to be opened here. 21 MR. MECZYK: I'm sorry, Your Honor. 22 JUSTICE O'CONNOR: The trunk of the vehicle did 23 not have to be opened here. You're talking about a dog 24 sniffing on the exterior of the vehicle that was 25 legitimately stopped for a traffic violation.

1 MR. MECZYK: Again, in this context, unlike in 2 Place, there was absolutely no relationship between the -3 the dog sniff and the dog sniff of Caballes' trunk and the 4 sniff of the luggage that was placed at LaGuardia Airport 5 in Place. There's a great distinction. Moreover -6 JUSTICE SCALIA: Suppose a policeman follows me 7 around. He just -- just follows me around, observing with 8 his -- with plain eyes. Now, is that a search? Does he 9 need probable cause to do that? Now, he's wasting his 10 time and he's wasting public money and maybe he should get 11 fired for doing it, if he has no reason to follow me. 12 MR. MECZYK: It's not a search. 13 JUSTICE SCALIA: And maybe -- maybe I'd have a 14 harassment action against him if he does it, you know, 15 blatantly. But is that a search? 16 MR. MECZYK: It is not a search. If he follows 17 you -18 JUSTICE SCALIA: Okay. So -- so the mere fact 19 that one is in investigating something doesn't make it a 20 search. What does make it a search? 21 MR. MECZYK: Well -- 22 JUSTICE SCALIA: The fact that you find out 23 something? 24 MR. MECZYK: I think here the most distinctive 25 point here is that Caballes had already been stopped

1 unlike the hypothetical that you just presented to me. 2 Caballes was already stopped for one -- for probable 3 cause. There's no question about that. But then now the 4 police launch into a wholly unrelated investigation 5 that's -6 JUSTICE SCALIA: You think it would be better if 7 he hadn't been stopped? If -- if they just -- just 8 randomly walked up to somebody who was going through a 9 toll booth and had the dog sniff the car, you think that 10 would be a better case -11 MR. MECZYK: I think -12 JUSTICE SCALIA: -- for allowing it than -- than 13 yours? 14 MR. MECZYK: Even in that case, even in a 15 hypothetical where they used the dog for a toll booth, I 16 have a problem with that. That to me is a search. It's 17 different than -- I would assert it's different than if 18 they walked -- one of the hypotheticals that the Justices 19 asked my adversary in this case, when they asked, well, 20 what if they walked the dog instead around a -- parked 21 cars or parked cars at a stadium? It depends for what 22 purpose they want to walk those parked -- that dog around 23 those parked cars. My assertion is -24 JUSTICE GINSBURG: Well, they said it's to find 25 out if there's any contraband.

1 MR. MECZYK: I'm sorry, Your Honor. 2 JUSTICE GINSBURG: The answer was they are at 3 liberty -- the police are at liberty to use dogs to find 4 contraband. And your -- Illinois I think was very candid 5 with the Court in saying we have taken from your decisions 6 that a dog sniff is not a search. So anything else is a 7 matter of police policy. It had nothing to do with the 8 Fourth Amendment. 9 MR. MECZYK: Well, I -- I strongly differ. I 10 have to look at the purpose that they are going to use the 11 dog for. This Court -12 JUSTICE O'CONNOR: Well, does it matter if, for 13 instance, in today's world on Capitol Hill we're concerned 14 about terrorist attacks. What if the dog is trained to 15 alert to explosives? Now, can the police just decide 16 they're going to sniff any car that's parked on Capitol 17 Hill? 18 MR. MECZYK: Justice O'Connor, it depends on the 19 purpose. 20 JUSTICE O'CONNOR: Yes or no, in your view. The 21 purpose is to disclose potential explosives in a parked 22 vehicle. 23 MR. MECZYK: The answer is yes. I have no 24 problem whatsoever. 25 JUSTICE O'CONNOR: Wherever it is.

1 MR. MECZYK: Wherever it is because I look at it 2 as a public safety exception. And this Court in the 3 Edmond case specifically condemned a general search -- a 4 general crime -- let me use the exact words. General 5 interest in crime control, to quote the Edmond case. And 6 that's -7 JUSTICE BREYER: I still want to go back to my 8 question because I think you may have an answer to it and 9 I want to focus you - 10 MR. MECZYK: I'm struggling, yes. 11 JUSTICE BREYER: I want to focus you on the 12 question. I think what you're doing, which is a 13 reasonable thing to do, but it isn't my approach, look to 14 the English definition of search. I say forget that. 15 Let's look to the Fourth Amendment because there are a 16 whole range of searches that don't even fall within the 17 Fourth Amendment in the sense that we don't need a 18 justification. And I take Place as saying that dog sniffs 19 is one of those, whether it does or doesn't use the word 20 English search. 21 So I want to know why it is that this dog search 22 is one of the ones that's a Fourth Amendment search, i.e., 23 one of the ones that requires a justification in terms of 24 what the Fourth Amendment is about, privacy. 25 MR. MECZYK: It invades a public -- I'm sorry.

1 It invades a private space that in this particular case 2 the respondent Caballes had a privacy interest in, that he 3 wanted to exclude the whole world from going inside his 4 trunk. That's the difference. 5 JUSTICE STEVENS: Yes, but you don't respond to 6 one point in Place, if I remember correctly. It must be a 7 legitimate expectation of privacy, and if the only thing 8 the dog can detect is something illegitimate, how can you 9 say there's an invasion of a legitimate expectation in 10 privacy? 11 MR. MECZYK: Well, it is -- it's true that one 12 does not have an expectation of privacy in contraband, but 13 by the same token, I have an expectation or Mr. Caballes 14 had an expectation of -- of privacy of what's inside that 15 closed trunk, his car. The Carroll doctrine is still good 16 law. We still apply the Fourth Amendment in cars. It's 17 true that the home is sacrosanct, but just because it's a 18 home, it's not a talisman where -- where the Fourth 19 Amendment no longer applies. 20 JUSTICE GINSBURG: There was something you said 21 in -- in your brief that I thought was unclear. So may I 22 ask you -23 MR. MECZYK: Of course. 24 JUSTICE GINSBURG: -- if Officer Gillette, the 25 one who did the arrest for speeding, had a dog in the back

1 of his car, instead of having the second officer come with 2 the dog, would it have been permissible? I thought you 3 had conceded that it would be a different situation if the 4 dog was already there when the car stopped. 5 MR. MECZYK: First of all, Justice Ginsburg, my 6 recollection is that Trooper Gillette, who was the officer 7 who stopped Caballes, did not have a -- a dog in the car. 8 JUSTICE GINSBURG: No, he didn't, but I'm asking 9 you to imagine that he did. 10 MR. MECZYK: I see. If he had a dog in the car 11 and the dog just happened to have alerted without his 12 cuing the dog or walking the dog -- and I'll answer that 13 in a moment too -- that would be pure serendipity. That 14 might happen. If -- if the dog just happened to have 15 alerted. But if the troopers deliberately drove the car 16 close by -- and in reality, that's not what happens. 17 JUSTICE GINSBURG: No. I would like to take 18 this scenario as it is except that when the officer gets 19 out of the car, his dog comes with him. 20 MR. MECZYK: Okay. 21 JUSTICE GINSBURG: This is very -- make no other 22 changes except that Gillette has the dog and Gillette with 23 the dog go to Mr. Caballes' car. 24 MR. MECZYK: My understanding of the way this 25 works, Justice Ginsburg, is that he just couldn't go up to

1 the car without -- and the dog would alert. My 2 understanding of the way these dogs are trained is that 3 they specifically -- that the officer has to walk the dog 4 around the car, the vehicle, first of all. 5 JUSTICE SCALIA: He does that. He does that. 6 MR. MECZYK: He does that. 7 JUSTICE SCALIA: Yes, in this case. 8 MR. MECZYK: He does that. 9 JUSTICE SCALIA: Right. 10 MR. MECZYK: To cue the dog. In other words, 11 tell him it's not playtime anymore, that he has to work. 12 JUSTICE SCALIA: Right. 13 MR. MECZYK: To trigger something in the -- in 14 the canine brain. 15 JUSTICE SCALIA: Right. 16 JUSTICE GINSBURG: But you -- I'm -- 17 JUSTICE SCALIA: Would it be bad? Would it be 18 bad if that's what he did? 19 MR. MECZYK: It wouldn't be bad that's what -20 well, yes. In this case it's very bad because it's a 21 search. There's no question. I'm not coming off of that. 22 JUSTICE GINSBURG: But I'm -- I'm trying to 23 understand what you meant in your brief when you said if 24 the dog had been in Gillette's car when Gillette stopped 25 Caballes, the situation would have been different.

1 MR. MECZYK: I -- I think what I meant there -2 there would have been -- it would have been purely 3 happenstance, almost like plain view. It would have been 4 -- without him even cuing the dog or starting to walk the 5 dog around, my answer to that Justice Ginsburg is that 6 that would have been all right. 7 Except now that -- the more I think about it, 8 I'm not so sure that it would be all right. And my answer 9 to -- and the reason for that is I think in that case the 10 officer, if he could do such a thing and the dog would 11 alert, would be exploiting the situation, would just be 12 taking the dog and walking him around the car and seeing 13 that the dog alerted. So in other words, there -- there 14 would be, I think, an exploitation of -- of the -- of the 15 traffic stop. 16 JUSTICE GINSBURG: So then it really makes no 17 difference whether it was Gillette who had the dog in his 18 car or whether the dispatcher called another officer who 19 had the dog. 20 MR. MECZYK: That is correct, Your Honor. 21 JUSTICE GINSBURG: It doesn't -- so you're 22 retracting that. 23 You, I think, were asked but I'm -- I'm not sure 24 you fully answered. Suppose the police, as Atwater would 25 allow, arrested, made a full arrest of Caballes, and then

1 they impound his car. In the place where they put it, 2 couldn't they have a dog go around the car there? 3 MR. MECZYK: Yes. Yes. I -- if we had an 4 Atwater situation -- in this case there wasn't an Atwater 5 situation because there was first a warning given. You're 6 correct. There was a warning given. I'm sorry. The 7 officer Gillette told Caballes he was going to give him a 8 warning. So unlike the Knowles -- 9 JUSTICE GINSBURG: But he could have. He could 10 have. I mean -11 MR. MECZYK: He could have, but he didn't. 12 JUSTICE GINSBURG: -- is -- is -13 MR. MECZYK: He didn't. Instead, he chose to 14 treat this as more of a Knowles situation. This case is 15 -- is on all fours, no pun intended, like Knowles. In 16 other words, in the -- in Knowles v. Iowa, the Court -- a 17 case of this -- I'm sorry. Let me untwist my tongue. In 18 Knowles v. Iowa, you had a -- you had a traffic stop and 19 after the traffic stop, there was a statute that said 20 unrelated to the traffic stop, you can go in and search. 21 And this is the same thing. This officer here Gillette 22 treated Caballes as the officer in Knowles in -- treated 23 Mr. Knowles in Iowa. It's the exact same thing. 24 JUSTICE SOUTER: No, but the -- the difficulty 25 that I have with that argument is take the -- take the

1 case of -- of the arrestable offense in which it is 2 undoubtedly the case that although the police don't 3 normally arrest, they -- they can. Your -- if I 4 understand your argument, you're saying if they, in fact, 5 do arrest, they may then take the dog around the car, and 6 indeed, I presume you would agree, they could make an 7 inventory search because they've got to protect themselves 8 against claims that they lost property and so on. So 9 there's no question that in that case, as -- as you have 10 argued it, they could make a full-blown search and -- and 11 certainly can use the dog. But if they choose not to 12 arrest on the highway, they can't. 13 My problem is how can you say that there is a 14 reasonable expectation of privacy in case number two if 15 you admit that the police can search in case number one. 16 How does that affect the reasonable expectation of 17 privacy? 18 MR. MECZYK: To me, once a person is told that 19 he is not going to be under arrest, it changes the whole 20 complexion of the case. I think it's a completely 21 different -- a completely different scenario. We don't 22 have an arrest. It doesn't matter. Atwater -23 JUSTICE GINSBURG: Could the officer change his 24 mind? I mean, he -- he did say I'm just going to give you 25 a citation, and then he said, mind if I search your car.

1 This is before the -- the dog showed up. And suppose the 2 person who had been speeding said, yes, I mind. Don't 3 search my car. And then the police said, well, in that 4 case I'm going to arrest you. 5 MR. MECZYK: It's a difficult question, but I 6 have to look at what -- I think reasonableness is judged. 7 Again, I'm going to remember what the -- those cases 8 taught. I think what Knowles taught, that reasonableness 9 is judged by what the police actually do as opposed to 10 what they might have done. 11 JUSTICE SCALIA: Mr. Meczyk, I assume that your 12 answer to whether it's lawful to have a -- a dog at a bus 13 depot just to sniff the bags of people who were coming 14 off, without stopping them, but just -- just to have the 15 dogs there, that's unlawful. 16 MR. MECZYK: It depends -17 JUSTICE SCALIA: For narcotics, not for bombs, 18 not for -- just -- just for narcotics. The police think, 19 you know, a lot of narcotics goes on interstate buses. 20 We're going to put a dog in the bus depot. 21 MR. MECZYK: It's a little less problematic to 22 me, Justice Scalia, than the type of stop I'm talking 23 about here. 24 JUSTICE SCALIA: Why? 25 MR. MECZYK: It's a little less problematic.

1 One, because it's a public place and I -- I think -2 JUSTICE SCALIA: Well, so is the road, for 3 Pete's sake. 4 MR. MECZYK: I know, but -- but here I think 5 there's a lesser expectation of privacy. Well, I don't 6 even want to go that far. I -- I have to answer your 7 question. I think that submitting the dogs without any -8 submitting the luggage without any reasonable articulable 9 suspicion -- 10 JUSTICE SCALIA: Right. 11 MR. MECZYK: -- unlike the case -12 JUSTICE SCALIA: Right. 13 MR. MECZYK: -- unlike the case in -- in Place, 14 that that to me is still a search. So -15 JUSTICE SCALIA: Okay. That's -- that's what I 16 think you should say. 17 MR. MECZYK: And I am saying it. 18 JUSTICE BREYER: Yes, but that isn't -- I take 19 it you don't -- 20 MR. MECZYK: Sorry it took me so long. 21 JUSTICE BREYER: Is there anything wrong with 22 the policeman himself taking a sniff? 23 MR. MECZYK: It goes back to -24 JUSTICE BREYER: It's the great Limburger cheese 25 robbery.

1 (Laughter.) 2 JUSTICE BREYER: He stopped the car and he walks 3 around. Anything wrong with that? 4 MR. MECZYK: There's nothing wrong if he can 5 detect Limburger cheese. That to me is like plain smell. 6 JUSTICE BREYER: All right. 7 MR. MECZYK: As awful as that -8 JUSTICE BREYER: So plain -9 MR. MECZYK: As awful as it might be - 10 JUSTICE BREYER: All right. So -- so what 11 you're saying is -- and this must tie back to reasonable 12 expectation of privacy. All right? Because it's okay for 13 the policeman to do it, and it's okay for dogs to do it in 14 the bus station, and it's okay to use a dog not in the bus 15 station with a car if in fact you actually are going to 16 put him under arrest, although here you had probable cause 17 to do so, I take it. And now you have to draw a pretty 18 fine line. But it's not okay where it's not the bus 19 station, but it is the car and in fact the dog is doing 20 the sniffing -- and there are a lot of dogs around that 21 can sniff -- and you did have probable cause but you 22 didn't say it. And in face of Justice O'Connor's case 23 which said that -- you see. Well, I mean, this is -- this 24 is -25 MR. MECZYK: I guess you -

1 JUSTICE BREYER: I mean, I'm not saying you 2 couldn't draw that line, but I'm saying it's pretty tough 3 I think. 4 MR. MECZYK: I guess you're telling me I'm -5 I'm the underdog in this case. 6 JUSTICE BREYER: Well, I don't know. 7 (Laughter.) 8 JUSTICE BREYER: I'm right? Am I -- I mean, 9 that -10 MR. MECZYK: It is -11 JUSTICE BREYER: And you're going to draw the -12 well, I don't want you to repeat yourself necessarily. 13 MR. MECZYK: No. It -14 JUSTICE GINSBURG: But you had already drawn the 15 line at a different place than Justice Breyer suggested 16 because in response to Justice Scalia, you said if it -17 if it were going into the bus terminal just to sniff for 18 narcotics, unlike explosives, it would be an impermissible 19 search. 20 MR. MECZYK: Yes, correct, Justice -21 JUSTICE GINSBURG: That would be -22 MR. MECZYK: That is correct, Justice Ginsburg. 23 What makes this particular so -24 JUSTICE SOUTER: But -- but is -- why -- why 25 don't you simply say, look -- have a very simple line. If

1 they can arrest, they can sniff. If they can't arrest, 2 they can't sniff without individualized suspicion going to 3 drugs or whatever. 4 MR. MECZYK: I would agree with that if I use an 5 -- if -- if you're referring to an Atwater type scenario. 6 If they have probable -- if they decide to arrest, even 7 though it's on a minor traffic case, such as Atwater, 8 which was a seat belt, as long as it's -- if -- if it's 9 minor and if the officer elects to choose to do a full 10 blown arrest, then all the consequences that follow from 11 that arrest are -- it's going to happen. Excuse me. It's 12 going to happen. 13 JUSTICE SOUTER: But what -- what is the answer 14 to the reasonable expectation to privacy question in that 15 case? Isn't your expectation of privacy identical, 16 whatever it may be, or isn't the reasonable expectation of 17 privacy identical, whatever that may be, without regard to 18 the discretionary decision of the officer to arrest or 19 not? 20 MR. MECZYK: I -- I think that when the officer 21 does a full-blown arrest, as was envisioned in Atwater, 22 you know that you -- the person knows that he or she does 23 not have a reasonable expectation of privacy. 24 JUSTICE SOUTER: But you're saying that the -25 the reasonable expectation of privacy depends upon the

1 officer's discretionary judgment whether or not to arrest. 2 Isn't that what you're saying? 3 MR. MECZYK: Essentially yes, because I think 4 that the officer takes a physical action. It's just more 5 than words. It's also his deeds. I think in Atwater, 6 unlike Knowles -- in Atwater, in that case, I think the -7 the officer did make an election, and there was a full8 blown or a full-fledged arrest. And I think there your -9 your reasonable expectation to privacy does, in fact, go 10 out the window. 11 But this is so different. This was just a 12 warning. Period. It was nothing worse than a warning. 13 What makes this stop so pernicious is that it takes place 14 in front of the whole world and is accusatory. It is 15 profoundly embarrassing, and it is humiliating to everyone 16 on the street. So if a person is stopped and the officer 17 just decides to stop you for a minor traffic offense, 18 that's the worst part about this case. Just a minor 19 traffic offense, really a frivolous offense, basically 20 what any law-abiding citizen would happen to -- it could 21 happen to anyone. And as this Court has said, even in 22 Whren, there are so many multiple technical violations of 23 -- of -- technical violations -24 JUSTICE SCALIA: I mean, I think it's worse if 25 -- if you're subjected to it without having committed any

1 violation at all. Every time I travel abroad and come 2 back into the country, customs officers have dogs and -3 and they parade the dogs through -- through the baggage 4 terminal. Do -- do I feel offended by that? 5 MR. MECZYK: No, Justice Scalia -6 JUSTICE SCALIA: This isn't a public safety 7 matter. They're -- they're not smelling for bombs. 8 They're -- they're smelling for contraband. And according 9 to you, that is bad. 10 MR. MECZYK: That -- in that situation, when you 11 enter the country -- and this Court has said many times 12 again -- it's a border search. There's nothing that I can 13 argue against the border search. It's the -- or the 14 functional equivalent of the border. That is a border 15 search. I bring luggage to the airport, in today's world 16 I have a lesser expectation of privacy. If I know I'm 17 traveling abroad and coming into the United States, that's 18 different. That's different in an airport. 19 JUSTICE SCALIA: Okay. A bus station is 20 different, though. 21 MR. MECZYK: A bus station here inside the 22 United States is different I think. I -- I look at your 23 airport hypothetical as being -- as dealing with a border. 24 If it's not at a border and I use your hypothetical, it's 25 at O'Hare Airport or Reagan International Airport and they

1 bring a dog up to sniff for drugs at the carousel, that to 2 me is a search. It's like -- I think you said in one 3 opinion once if it -- you used the duck analogy, well, if 4 it walks like a duck or quacks like a duck. Here it's 5 still a search. It walks like a -- a dog and it acts like 6 a dog, but its specific function is in fact to search out 7 in public and humiliate people. 8 If there are any further questions. 9 I respectfully ask this honorable Court to 10 affirm the wise judgment of the Illinois Supreme Court. 11 Thank you. 12 JUSTICE STEVENS: Thank you, Mr. Meczyk. 13 General Madigan, you have I think about 3 14 minutes left. 15 REBUTTAL ARGUMENT OF LISA MADIGAN 16 ON BEHALF OF THE PETITIONER 17 MS. MADIGAN: Thank you, Justice Stevens. 18 Let me make three brief points. 19 Number one, Justice Ginsburg asked a question 20 about something that was in the respondent's brief, 21 whether or not it made a difference if a dog was with 22 Master Sergeant Gillette when he initiated the stop or if 23 the dog was later brought, as was the case here, by 24 Trooper Graham. Really what Mr. Caballes is arguing for 25 here is an inadvertence requirement which this Court very

1 clearly held in Horton, there is no such requirement of 2 inadvertence. And so a law officer, if they are at a 3 lawful vantage point, do have the ability to detect 4 incriminating facts. That is not something that has to 5 occur inadvertently. It can happen intentionally. 6 Second, Justice Scalia asked a question about 7 plain view, and similar to plain view, a dog sniff does 8 not effect an incremental search or seizure. And 9 therefore, similar to plain view, a dog sniff does not 10 require Fourth Amendment justification. 11 And let me finally acknowledge something that 12 Justice Souter brought up, which is whether or not, by 13 walking a dog around a house, you in fact would have a 14 search. Let me -- now, that is certainly a closer case 15 than whether walking a dog around a car constitutes a 16 search, which we say is not. But ultimately you would 17 reach a similar result because the principle is not going 18 to extend to cars in the same manner in -- in Kyllo as the 19 thermal imager did. 20 Finally, if there are no further questions, we 21 would ask that the judgment of the Illinois Supreme Court 22 be reversed. 23 JUSTICE STEVENS: Thank you, General Madigan. 24 The -- the case is submitted. 25 MS. MADIGAN: Thank you.

1 (Whereupon, at 10:57 a.m., the case in the 2 above-entitled matter was submitted.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Alderson Reporting Company

2. ILLINOIS V. CABALLES: Opinions of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports.Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 03—923

ILLINOIS, PETITIONER v. ROY I. CABALLES

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS

[January 24, 2005]

Justice Stevens delivered the opinion of the Court.

Illinois State Trooper Daniel Gillette stopped respondent for speeding on an interstate highway. When Gillette radioed the police dispatcher to report the stop, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, overheard the transmission and immediately headed for the scene with his narcotics-detection dog. When they arrived, respondent’s car was on the shoulder of the road and respondent was in Gillette’s vehicle. While Gillette was in the process of writing a warning ticket, Graham walked his dog around respondent’s car. The dog alerted at the trunk. Based on that alert, the officers searched the trunk, found marijuana, and arrested respondent. The entire incident lasted less than 10 minutes.

Respondent was convicted of a narcotics offense and sentenced to 12 years’ imprisonment and a $256,136 fine. The trial judge denied his motion to suppress the seized evidence and to quash his arrest. He held that the officers had not unnecessarily prolonged the stop and that the dog alert was sufficiently reliable to provide probable cause to conduct the search. Although the Appellate Court affirmed, the Illinois Supreme Court reversed, concluding that because the canine sniff was performed without any “ ‘specific and articulable facts’ ” to suggest drug activity, the use of the dog “unjustifiably enlarg[ed] the scope of a routine traffic stop into a drug investigation.” 207 Ill. 2d 504, 510, 802 N. E. 2d 202, 205 (2003).

The question on which we granted certiorari, 541 U.S. 972 (2004), is narrow: “Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.” Pet. for Cert. i. Thus, we proceed on the assumption that the officer conducting the dog sniff had no information about respondent except that he had been stopped for speeding; accordingly, we have omitted any reference to facts about respondent that might have triggered a modicum of suspicion.

Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U.S. 109, 124 (1984). A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002). We may assume that a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.

In the state-court proceedings, however, the judges carefully reviewed the details of Officer Gillette’s conversations with respondent and the precise timing of his radio transmissions to the dispatcher to determine whether he had improperly extended the duration of the stop to enable the dog sniff to occur. We have not recounted those details because we accept the state court’s conclusion that the duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop.

Despite this conclusion, the Illinois Supreme Court held that the initially lawful traffic stop became an unlawful seizure solely as a result of the canine sniff that occurred outside respondent’s stopped car. That is, the court characterized the dog sniff as the cause rather than the consequence of a constitutional violation. In its view, the use of the dog converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful. In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent’s constitutionally protected interest in privacy. Our cases hold that it did not.

Official conduct that does not “compromise any legitimate interest in privacy” is not a search subject to the Fourth Amendment. Jacobsen, 466 U.S., at 123. We have held that any interest in possessing contraband cannot be deemed “legitimate,” and thus, governmental conduct that only reveals the possession of contraband “compromises no legitimate privacy interest.” Ibid. This is because the expectation “that certain facts will not come to the attention of the authorities” is not the same as an interest in “privacy that

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society is prepared to consider reasonable.” Id., at 122 (punctuation omitted). In United States v. Place, 462 U.S. 696 (1983), we treated a canine sniff by a well-trained narcotics-detection dog as "sui generis" because it "discloses only the presence or absence of narcotics, a contraband item." Id., at 707; see also Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Respondent likewise concedes that “drug sniffs are designed, and if properly conducted are generally likely, to reveal only the presence of contraband.” Brief for Respondent 17. Although respondent argues that the error rates, particularly the existence of false positives, call into question the premise that drug-detection dogs alert only to contraband, the record contains no evidence or findings that support his argument. Moreover, respondent does not suggest that an erroneous alert, in and of itself, reveals any legitimate private information, and, in this case, the trial judge found that the dog sniff was sufficiently reliable to establish probable cause to conduct a full-blown search of the trunk.

Accordingly, the use of a well-trained narcotics-detection dog–one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707–during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation. Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27 (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity–in that case, intimate details in a home, such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id., at 38. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.

The judgment of the Illinois Supreme Court is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

The Chief Justice took no part in the decision of this case.





Souter, J., dissenting


No. 03—923



[January 24, 2005]

Justice Souter, dissenting.

I would hold that using the dog for the purposes of determining the presence of marijuana in the car’s trunk was a search unauthorized as an incident of the speeding stop and unjustified on any other ground. I would accordingly affirm the judgment of the Supreme Court of Illinois, and I respectfully dissent.

In United States v. Place, 462 U.S. 696 (1983), we categorized the sniff of the narcotics-seeking dog as “sui generis” under the Fourth Amendment and held it was not a search. Id., at 707. The classification rests not only upon the limited nature of the intrusion, but on a further premise that experience has shown to be untenable, the assumption that trained sniffing dogs do not err. What we have learned about the fallibility of dogs in the years since Place was decided would itself be reason to call for reconsidering Place’s decision against treating the intentional use of a trained dog as a search. The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search. We should not wait for these developments to occur before rethinking Place’s analysis, which invites such untoward consequences.1

At the heart both of Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband.2 See ibid. (“[T]he sniff discloses only the presence or absence of narcotics, a contraband item”); ante, at 3—4 (assuming “that a canine sniff by a well-trained narcotics dog will only reveal ‘the presence or absence of narcotics, a contraband item’ ” (quoting Place, supra, at 707)). Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the






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sniff “does not implicate legitimate privacy interests” and is not to be treated as a search. Ante, at 4.

The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, 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. See, e.g., United States v. Kennedy, 131 F.3d 1371, 1378 (CA10 1997) (describing a dog that had a 71% accuracy rate); United States v. Scarborough, 128 F.3d 1373, 1378, n. 3 (CA10 1997) (describing a dog that erroneously alerted 4 times out of 19 while working for the postal service and 8% of the time over its entire career); United States v. Limares, 269 F.3d 794, 797 (CA7 2001) (accepting as reliable a dog that gave false positives between 7 and 38% of the time); Laime v. State, 347 Ark. 142, 159, 60 S. W. 3d 464, 476 (2001) (speaking of a dog that made between 10 and 50 errors); United States v. $242,484.00, 351 F.3d 499, 511 (CA11 2003) (noting that because as much as 80% of all currency in circulation contains drug residue, a dog alert “is of little value”), vacated on other grounds by rehearing en banc, 357 F.3d 1225 (CA11 2004); United States v. Carr, 25 F.3d 1194, 1214—1217 (CA3 1994) (Becker, J., concurring in part and dissenting in part) (“[A] substantial portion of United States currency … is tainted with sufficient traces of controlled substances to cause a trained canine to alert to their presence”). Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time, depending on the length of the search. See Reply Brief for Petitioner 13; K. Garner et al., Duty Cycle of the Detector Dog: A Baseline Study 12 (Apr. 2001) (prepared under Federal Aviation Administration grant by the Institute for Biological Detection Systems of Auburn University). In practical terms, the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.

Once the dog’s fallibility is recognized, however, that ends the justification claimed in Place for treating the sniff as sui generis under the Fourth Amendment: the sniff alert does not necessarily signal hidden contraband, and opening the container or enclosed space whose emanations the dog has sensed will not necessarily reveal contraband or any other evidence of crime. This is not, of course, to deny that a dog’s reaction may provide reasonable suspicion, or probable cause, to search the container or enclosure; the Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband. The point is simply that the sniff and alert cannot claim the certainty that Place assumed, both in treating the deliberate use of sniffing dogs as sui generis and then taking that characterization as a reason to say they are not searches subject to Fourth Amendment scrutiny. And when that aura of uniqueness disappears, there is no basis in Place’s reasoning, and no good reason otherwise, to ignore the actual function that dog sniffs perform. They are conducted to obtain information about the contents of private spaces beyond anything that human senses could perceive, even when conventionally enhanced. The information is not provided by independent third parties beyond the reach of constitutional limitations, but gathered by the government’s own officers in order to justify searches of the traditional sort, which may or may not reveal evidence of crime but






will disclose anything meant to be kept private in the area searched. Thus in practice the government’s use of a trained narcotics dog functions as a limited search to reveal undisclosed facts about private enclosures, to be used to justify a further and complete search of the enclosed area. And given the fallibility of the dog, the sniff is the first step in a process that may disclose “intimate details” without revealing contraband, just as a thermal-imaging device might do, as described in Kyllo v. United States, 533 U.S. 27 (2001).3

It makes sense, then, to treat a sniff as the search that it amounts to in practice, and to rely on the body of our Fourth Amendment cases, including Kyllo, in deciding whether such a search is reasonable. As a general proposition, using a dog to sniff for drugs is subject to the rule that the object of enforcing criminal laws does not, without more, justify suspicionless Fourth Amendment intrusions. See Indianapolis v. Edmond, 531 U.S. 32, 41—42 (2000). Since the police claim to have had no particular suspicion that Caballes was violating any drug law,4 this sniff search must stand or fall on its being ancillary to the traffic stop that led up to it. It is true that the police had probable cause to stop the car for an offense committed in the officer’s presence, which Caballes concedes could have justified his arrest. See Brief for Respondent 31. There is no occasion to consider authority incident to arrest, however, see Knowles v. Iowa, 525 U.S. 113 (1998), for the police did nothing more than detain Caballes long enough to check his record and write a ticket. As a consequence, the reasonableness of the search must be assessed in relation to the actual delay the police chose to impose, and as Justice Ginsburg points out in her opinion, post, at 3—4, the Fourth Amendment consequences of stopping for a traffic citation are settled law.

In Berkemer v. McCarty, 468 U.S. 420, 439—440 (1984), followed in Knowles, supra, at 488, we held that the analogue of the common traffic stop was the limited detention for investigation authorized by Terry v. Ohio, 392 U.S. 1 (1968). While Terry authorized a restricted incidental search for weapons when reasonable suspicion warrants such a safety measure, id., at 25—26, the Court took care to keep a Terry stop from automatically becoming a foot in the door for all investigatory purposes; the permissible intrusion was bounded by the justification for the detention, id., at 29—30.5 Although facts disclosed by enquiry within this limit might give grounds to go further, the government could not otherwise take advantage of a suspect’s immobility to search for evidence unrelated to the reason for the detention. That has to be the rule unless Terry is going to become an open-sesame for general searches, and that rule requires holding that the police do not have reasonable grounds to conduct sniff searches for drugs simply because they have stopped someone to receive a ticket for a highway offense. Since the police had no indication of illegal activity beyond the speed of the car in this case, the sniff search should be held unreasonable under the Fourth Amendment and its fruits should be suppressed.

Nothing in the case relied upon by the Court, United States v. Jacobsen, 466 U.S. 109 (1984), unsettled the limit of reasonable enquiry adopted in Terry. In Jacobsen, the Court found that no Fourth Amendment search occurred when federal agents analyzed powder they had already lawfully obtained. The Court noted that because the test could only
















reveal whether the powder was cocaine, the owner had no legitimate privacy interest at stake. 466 U.S., at 123. As already explained, however, the use of a sniffing dog in cases like this is significantly different and properly treated as a search that does indeed implicate Fourth Amendment protection.

In Jacobsen, once the powder was analyzed, that was effectively the end of the matter: either the powder was cocaine, a fact the owner had no legitimate interest in concealing, or it was not cocaine, in which case the test revealed nothing about the powder or anything else that was not already legitimately obvious to the police. But in the case of the dog sniff, the dog does not smell the disclosed contraband; it smells a closed container. An affirmative reaction therefore does not identify a substance the police already legitimately possess, but informs the police instead merely of a reasonable chance of finding contraband they have yet to put their hands on. The police will then open the container and discover whatever lies within, be it marijuana or the owner’s private papers. Thus, while Jacobsen could rely on the assumption that the enquiry in question would either show with certainty that a known substance was contraband or would reveal nothing more, both the certainty and the limit on disclosure that may follow are missing when the dog sniffs the car.6

The Court today does not go so far as to say explicitly that sniff searches by dogs trained to sense contraband always get a free pass under the Fourth Amendment, since it reserves judgment on the constitutional significance of sniffs assumed to be more intrusive than a dog’s walk around a stopped car, ante, at 4. For this reason, I do not take the Court’s reliance on Jacobsen as actually signaling recognition of a broad authority to conduct suspicionless sniffs for drugs in any parked car, about which Justice Ginsburg is rightly concerned, post, at 5—6, or on the person of any pedestrian minding his own business on a sidewalk. But the Court’s stated reasoning provides no apparent stopping point short of such excesses. For the sake of providing a workable framework to analyze cases on facts like these, which are certain to come along, I would treat the dog sniff as the familiar search it is in fact, subject to scrutiny under the Fourth Amendment.7

Notes 1. I also join Justice Ginsburg’s dissent, post, p. ___. Without directly reexamining the soundness of the Court’s analysis of government dog sniffs in Place, she demonstrates that investigation into a matter beyond the subject of the traffic stop here offends the rule in Terry v. Ohio, 392 U.S. 1 (1968), the analysis I, too, adopt.

2. Another proffered justification for sui generis status is that a dog sniff is a particularly nonintrusive procedure. United States v. Place, 462 U.S. 696, 707 (1983). I agree with Justice Ginsburg that the introduction of a dog to a traffic stop (let alone an encounter with someone walking down the street) can in fact be quite intrusive. Post, at 4—5 (dissenting opinion).






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3. Kyllo was concerned with whether a search occurred when the police used a thermal-imaging device on a house to detect heat emanations associated with high-powered marijuana-growing lamps. In concluding that using the device was a search, the Court stressed that the “Government [may not] us[e] a device … to explore details of the home that would previously have been unknowable without physical intrusion.” 533 U.S., at 40. Any difference between the dwelling in Kyllo and the trunk of the car here may go to the issue of the reasonableness of the respective searches, but it has no bearing on the question of search or no search. Nor is it significant that Kyllo’s imaging device would disclose personal details immediately, whereas they would be revealed only in the further step of opening the enclosed space following the dog’s alert reaction; in practical terms the same values protected by the Fourth Amendment are at stake in each case. The justifications required by the Fourth Amendment may or may not differ as between the two practices, but if constitutional scrutiny is in order for the imager, it is in order for the dog.

4. Despite the remarkable fact that the police pulled over a car for going 71 miles an hour on I—80, the State maintains that excessive speed was the only reason for the stop, and the case comes to us on that assumption.

5. Thus, in Place itself, the Government officials had independent grounds to suspect that the luggage in question contained contraband before they employed the dog sniff. 462 U.S., at 698 (describing how Place had acted suspiciously in line at the airport and had labeled his luggage with inconsistent and fictional addresses).

6. It would also be error to claim that some variant of the plain-view doctrine excuses the lack of justification for the dog sniff in this case. When an officer observes an object left by its owner in plain view, no search occurs because the owner has exhibited “no intention to keep [the object] to himself.” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). In contrast, when an individual conceals his possessions from the world, he has grounds to expect some degree of privacy. While plain view may be enhanced somewhat by technology, see, e.g., Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (allowing for aerial surveillance of an industrial complex), there are limits. As Kyllo v. United States, 533 U.S. 27, 33 (2001), explained in treating the thermal-imaging device as outside the plain-view doctrine, “[w]e have previously reserved judgment as to how much technological enhancement of ordinary perception” turns mere observation into a Fourth Amendment search. While Kyllo laid special emphasis on the heightened privacy expectations that surround the home, closed car trunks are accorded some level of privacy protection. See, e.g., New York v. Belton, 453 U.S. 454, 460, n. 4 (1981) (holding that even a search incident to arrest in a vehicle does not itself permit a search of the trunk). As a result, if Fourth Amendment protections are to have meaning in the face of superhuman, yet fallible, techniques like the use of trained dogs, those techniques must be justified on the basis of their reasonableness, lest everything be deemed in plain view.

7. I should take care myself to reserve judgment about a possible case significantly unlike this one. All of us are concerned not to prejudge a claim of authority to detect
















explosives and dangerous chemical or biological weapons that might be carried by a terrorist who prompts no individualized suspicion. Suffice it to say here that what is a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a societal risk.

Ginsburg, J., dissenting


No. 03—923



[January 24, 2005]

Justice Ginsburg, with whom Justice Souter joins, dissenting.

Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted speed limit of 65 miles per hour. Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic stop. Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff. Gillette informed Caballes that he was speeding and asked for the usual documents–driver’s license, car registration, and proof of insurance. Caballes promptly provided the requested documents but refused to consent to a search of his vehicle. After calling his dispatcher to check on the validity of Caballes’ license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket. Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog. Graham walked the dog around the car, the dog alerted at Caballes’ trunk, and, after opening the trunk, the troopers found marijuana. 207 Ill. 2d 504, 506—507, 802 N. E. 2d 202, 203 (2003).

The Supreme Court of Illinois held that the drug evidence should have been suppressed. Id., at 506, 802 N. E. 2d, at 202. Adhering to its decision in People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002), the court employed a two-part test taken from Terry v. Ohio, 392 U.S. 1 (1968), to determine the overall reasonableness of the stop. 207 Ill. 2d, at 508, 802 N. E. 2d, at 204. The court asked first “whether the officer’s action was justified at its inception,” and second “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Ibid. (quoting People v. Brownlee, 186 Ill. 2d 501, 518—519, 713 N. E. 2d 556, 565 (1999) (in turn quoting Terry, 392 U.S., at 19—20)). “[I]t is undisputed,” the court observed, “that the traffic stop was properly initiated”; thus, the dispositive inquiry trained on the “second part of the Terry test,” in which “[t]he State bears the burden of establishing that the conduct remained within the scope of the stop.” 207 Ill. 2d, at 509, 802 N. E. 2d, at 204.


The court concluded that the State failed to offer sufficient justification for the canine sniff: “The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs.” Ibid. Lacking “specific and articulable facts” supporting the canine sniff, ibid. (quoting Cox, 202 Ill. 2d, at 470—471, 782 N. E. 2d, at 281), the court ruled, “the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation.” 207 Ill. 2d, at 509, 802 N. E. 2d, at 204.1 I would affirm the Illinois Supreme Court’s judgment and hold that the drug sniff violated the Fourth Amendment.

In Terry v. Ohio, the Court upheld the stop and subsequent frisk of an individual based on an officer’s observation of suspicious behavior and his reasonable belief that the suspect was armed. See 392 U.S., at 27—28. In a Terry-type investigatory stop, “the officer’s action [must be] justified at its inception, and … reasonably related in scope to the circumstances which justified the interference in the first place.” Id., at 20. In applying Terry, the Court has several times indicated that the limitation on “scope” is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted. See, e.g., Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. ___, ___ (2004) (slip op., at 9) (an officer’s request that an individual identify himself “has an immediate relation to the purpose, rationale, and practical demands of a Terry stop”); United States v. Hensley, 469 U.S. 221, 235 (1985) (examining, under Terry, both “the length and intrusiveness of the stop and detention”); Florida v. Royer, 460 U.S. 491, 500 (1983) (plurality opinion) (“[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] … the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion … .”).

“A routine traffic stop,” the Court has observed, “is a relatively brief encounter and ‘is more analogous to a so-called Terry stop … than to a formal arrest.’ ” Knowles v. Iowa, 525 U.S. 113, 117 (1998) (quoting Berkemer v. McCarty, 468 U.S. 420, 439 (1984)); see also ante, at 6 (Souter, J., dissenting) (The government may not “take advantage of a suspect’s immobility to search for evidence unrelated to the reason for the detention.”).2 I would apply Terry’s reasonable-relation test, as the Illinois Supreme Court did, to determine whether the canine sniff impermissibly expanded the scope of the initially valid seizure of Caballes.

It is hardly dispositive that the dog sniff in this case may not have lengthened the duration of the stop. Cf. ante, at 2 (“A seizure … can become unlawful if it is prolonged beyond the time reasonably required to complete [the initial] mission.”). Terry, it merits repetition, instructs that any investigation must be “reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U.S., at 20 (emphasis added). The unwarranted and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment.3

The Court rejects the Illinois Supreme Court’s judgment and, implicitly, the application of Terry to a traffic stop converted, by calling in a dog, to a drug search. The

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Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope. Ante, at 2—3. Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy. Ante, at 3—4.

In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry (was the police action “reasonably related in scope to the circumstances [justifiying] the [initial] interference”). 392 U.S., at 20. A drug-detection dog is an intimidating animal. Cf. United States v. Williams, 356 F.3d 1268, 1276 (CA10 2004) (McKay, J., dissenting) (“drug dogs are not lap dogs”). Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial, and (in at least some cases) longer. Caballes–who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit–was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs. Even if the drug sniff is not characterized as a Fourth Amendment “search,” cf. Indianapolis v. Edmond, 531 U.S. 32, 40 (2000); United States v. Place, 462 U.S. 696, 707 (1983), the sniff surely broadened the scope of the traffic-violation-related seizure.

The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty. See, e.g., United States v. Karo, 468 U.S. 705, 717 (1984) (Fourth Amendment warrant requirement applies to police monitoring of a beeper in a house even if “the facts [justify] believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity.”); see also Minnesota v. Carter, 525 U.S. 83, 110 (1998) (Ginsburg, J., dissenting) (“Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.”). Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.

The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence. Today’s decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Compare, e.g., United States v. Ludwig, 10 F.3d 1523, 1526—1527 (CA10 1993) (upholding a search based on a canine drug sniff of a parked car in a motel parking lot conducted without particular suspicion), with United States v. Quinn, 815 F.2d 153, 159 (CA1 1987) (officers must have reasonable suspicion that a car contains narcotics at the moment a dog sniff is performed), and Place, 462 U.S., at 706—707 (Fourth Amendment not violated by a dog sniff of a piece of luggage that was seized, pre-sniff, based on suspicion of drugs). 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.












Today’s decision also undermines this Court’s situation-sensitive balancing of Fourth Amendment interests in other contexts. For example, in Bond v. United States, 529 U.S. 334, 338—339 (2000), the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer’s physical manipulation of the bag constituted an illegal search. If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer’s request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say “No.”

The dog sniff in this case, it bears emphasis, was for drug detection only. A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter. Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes. For example, they may be trained for narcotics detection or for explosives detection or for agricultural products detection. See, e.g., U.S. Customs & Border Protection, Canine Enforcement Training Center, Training Program Course Descriptions, http://www.cbp.gov/xp/cgov/border_security/ canines/training _program.xml (all Internet materials as visited Dec. 16, 2004, and available in the Clerk of Court’s case file) (describing Customs training courses in narcotics detection); Transportation Security Administration, Canine and Explosives Program, http://www.tsa.gov/ public/display? theme=32 (describing Transportation Security Administration’s explosives detection canine program); U.S. Dept. of Agriculture, Animal and Plant Health Inspection Service, USDA’s Detector Dogs: Pro- tecting American Agriculture (Oct. 2001), available at http://www.aphis.usda.gov/oa/pubs/detdogs.pdf (describing USDA Beagle Brigade detector dogs trained to detect prohibited fruits, plants, and meat); see also Jennings, Origins and History of Security and Detector Dogs, in Canine Sports Medicine and Surgery 16, 18—19 (M. Bloomberg, J. Dee, & R. Taylor eds. 1998) (describing narcotics detector dogs used by Border Patrol and Customs, and bomb detector dogs used by the Federal Aviation Administration and the Secret Service, but noting the possibility in some circumstances of cross training dogs for multiple tasks); S. Chapman, Police Dogs in North America 64, 70—79 (1990) (describing narcotics- and explosives-detection dogs and noting the possibility of cross training). There is no indication in this case that the dog accompanying Trooper Graham was trained for anything other than drug detection. See 207 Ill. 2d, at 507, 802 N. E. 2d, at 203 (“Trooper Graham arrived with his drug-detection dog … .”); Brief for Petitioner 3 (“Trooper Graham arrived with a drug-detection dog … .”).

This Court has distinguished between the general interest in crime control and more immediate threats to public safety. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), this Court upheld the use of a sobriety traffic checkpoint. Balancing the State’s interest in preventing drunk driving, the extent to which that could be accomplished through the checkpoint program, and the degree of intrusion the stops involved, the Court determined that the State’s checkpoint program was consistent with the Fourth Amendment. Id., at 455. Ten years after Sitz, in Indianapolis v. Edmond, 531 U.S. 32, this Court held that a drug interdiction checkpoint violated the Fourth Amendment.












Despite the illegal narcotics traffic that the Nation is struggling to stem, the Court explained, a “general interest in crime control” did not justify the stops. Id., at 43—44. The Court distinguished the sobriety checkpoints in Sitz on the ground that those checkpoints were designed to eliminate an “immediate, vehicle-bound threat to life and limb.” 531 U.S., at 43.

The use of bomb-detection dogs to check vehicles for explosives without doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond. As the Court observed in Edmond: “[T]he Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack … .” 531 U.S., at 44. Even if the Court were to change course and characterize a dog sniff as an independent Fourth Amendment search, see ante, p. ___ (Souter, J., dissenting), the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine. See, e.g., ante, at 8, n. 7 (Souter, J., dissenting); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (permitting exceptions to the warrant and probable-cause requirements for a search when “special needs, beyond the normal need for law enforcement,” make those requirements impracticable (quoting New Jersey v. T. L. O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment))).

***

For the reasons stated, I would hold that the police violated Caballes’ Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle. I would therefore affirm the judgment of the Illinois Supreme Court.

Notes 1. The Illinois Supreme Court held insufficient to support a canine sniff Gillette’s observations that (1) Caballes said he was moving to Chicago, but his only visible belongings were two sport coats in the backseat; (2) the car smelled of air freshener; (3) Caballes was dressed for business, but was unemployed; and (4) Caballes seemed nervous. Even viewed together, the court said, these observations gave rise to “nothing more than a vague hunch” of “possible wrongdoing.” 207 Ill. 2d 504, 509—510, 802 N. E. 2d 202, 204—205 (2003). This Court proceeds on “the assumption that the officer conducting the dog sniff had no information about [Caballes].” Ante, at 2.

2. The Berkemer Court cautioned that by analogizing a traffic stop to a Terry stop, it did “not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.” 468 U.S., at 439, n. 29. This Court, however, looked to Terry earlier in deciding that an officer acted reasonably when he ordered a motorist stopped for driving with expired license tags to exit his car, Pennsylvania v. Mimms, 434 U.S. 106, 109—110 (1977) (per curiam), and later reaffirmed the Terry analogy when evaluating a police officer’s authority to search a vehicle during a routine traffic stop, Knowles, 525 U.S., at 117.







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3. The question whether a police officer inquiring about drugs without reasonable suspicion unconstitutionally broadens a traffic investigation is not before the Court. Cf. Florida v. Bostick, 501 U.S. 429, 434 (1991) (police questioning of a bus passenger, who might have just said “No,” did not constitute a seizure).



2. State v. Dearman -- from the Peoples Republic of Washington -- Dog Sniff of Home requires a Warrant

92 Wn. App. 630, STATE v. DEARMAN

[No. 40522-5-I. Division One. September 14, 1998.]

THE STATE OF WASHINGTON, Appellant, v. IVAN BRENT DEARMAN, Respondent.

[1] Searches and Seizures - Search - What Constitutes - State Constitution - Privacy Interests. For purposes of CONST. art. I, § 7, which protects one's home and private affairs from warrantless searches, a search occurs when a government agent unreasonably intrudes into a person's private affairs. Such a search of invalid if it is not supported by a warrant or justified by a recognized exception to the warrant requirement.

[2] Constitutional Law - Right to Privacy - State Guaranty - Invasion of Home - Adjacent Garage. Under CONST. art. I, § 7, a home receives heightened protection against governmental intrusion. The closer government agents come to intruding into a home, the greater the constitutional protection. A garage located immediately adjacent to a home receives the same protection as the home itself.

[3] Searches and Seizures - Search - What Constitutes - State Constitution - Surveillance - Means. A police officer's substantial and unreasonable departure from a lawful vantage point in an attempt to detect the presence of an item or thing without a warrant, or a particularly intrusive method of viewing a person's home without a warrant, may constitute an unreasonable intrusion into a person's private affairs in violation CONST. art. I, §7.

[4] Searches and Seizures - Search - What Constitutes - Canine Sniff - Odor Undetectable by Police Officers. The use by police officers of a trained narcotics dog to detect the presence of a controlled substance in a locked dwelling or associated structure under circumstances in which the presence of the controlled substance cannot be detected by the police officers using one or more of their own senses from a lawful vantage point constitutes a search for purposes of CONST. art. I, § 7.

Nature of Action: Prosecution for manufacturing a controlled substance.

Sept. 1998 STATE v. DEARMAN 631 92 Wn. App. 630

Superior Court: The Superior Court for Snohomish County, No. 96-1-02036-7, William Baker, J., suppressed evidence of the crime on April 8, 1997.

Court of Appeals: Holding that the use by police officers of a trained narcotics dog to detect the presence of controlled substances in a garage located immediately adjacent to

the defendant's home constituted a search for which a warrant was required, the court affirms the decision of the trial court.

James H. Krider, Prosecuting Attorney, and David F. Thiele, Deputy, for appellant.

Mark D. Mestel otMestel & Muenster, for respondent.

AGID, A.C.J. - The State appeals the trial court's order suppressing evidence seized from Ivan Dearman's home with a search warrant obtained after police used a narcotics dog to determine whether there was a marijuana grow operation in the garage. Dearman cross-appeals, contending the trial court erred in determining that police had a legitimate investigative reason to be at his residence even after they determined no one was there. Because using a trained narcotics dog to detect marijuana in the garage adjacent to a private residence constituted a search under State v. Young,«1» a search warrant was required. We therefore affirm.

FACTS

In early 1993, an unnamed caller informed police that

«1» 123 Wn.2d 173, 867 P.2d 593 (1994).

632 STATE v. DEARMAN Sept. 1998 92 Wn. App. 630

Ivan Dearman was growing marijuana and described his vehicle. Police confirmed that such a vehicle was registered to Dearman but closed the investigation when they were unable to associate him with any marijuana grow operation. In the spring of 1995, a reliable confidential informant told police that someone named 'Ivan' was distributing marijuana. The informant was unable to give them any other information except the name of a possible associate. Police determined that Dearman might be living in the house at 7809 20th N.E. in Arlington. On September 29, 1995, two officers went to that address to investigate. Detective Cheryl Braley went up to the front door and knocked loudly but got no answer. The second officer heard a humming noise coming from the adjacent garage similar to that given off by electrical ballasts used in marijuana grow operations. Neither officer was able to detect the odor of marijuana coming from the house or the garage.

On October 3, police returned to survey the house and observed a person who appeared to be Dearman. They were too far away to positively identify him. Police returned a third time on October 10 and, acting in an undercover capacity, watched the house from a distance. After they saw the person they believed was Dearman and a woman who appeared to live in the house leave, they approached the house and parked in the

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driveway.«2» They did not have a warrant to search the house. Detective Braley went to the front door, knocked, and got no response. Because police had not been able to detect the odor of marijuana on their previous visit, Detective Heifers, a trained canine handler, and his narcotics dog, Corky, accompanied the detective. After Detective Braley ascertained that no one was home, Heifers told the dog to sniff along the horizontal door seams of the garage to see if he could detect the odor of marijuana. Corky smelled marijuana and alerted. Police left the residence and obtained a search warrant. When they executed the warrant, they seized marijuana found growing in the garage.

«2» The facts concerning October 10 are based on the trial court's unchallenged findings of fact.


Dearman was charged with manufacturing a controlled substance. Before trial he moved to suppress the evidence seized from the garage, arguing that police may not use illegally obtained information as a basis for a search warrant. The trial court found that police were lawfully on the premises and had a reasonable suspicion, but not probable cause, to believe that marijuana was present.«3» It also found that police had a legitimate investigative reason to be on the premises which did not end when they learned no one was home. But the court concluded a narcotics dog is a sense enhancing device within the meaning of State v. Young and therefore a search warrant was required. Because police did not have a warrant before they used Corky, the court granted Dearman's motion to suppress. The practical effect of its decision was to terminate the case.

DISCUSSION

[1-3] Article I, section 7, of the WASHINGTON CONSTITUTION provides, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The CONSTITUTION thus protects both a person's home and his or her private affairs from warrantless searches.«4» The relevant inquiry in determining whether there has been a search under the WASHINGTON CONSTITUTION is "'whether the State has unreasonably intruded into a person's "private affairs."'"«5» If a search occurs, article 1, section 7, is implicated and police must get a warrant or the search

«3» The State does not challenge this finding.

«4» Young, 123 Wn.2d at 181.


«5» Id. (quoting State v. Boland, 115 Wn.2d 571, 577, 800 P.2d 1112 (1990). In addition to 'private affairs,' article 1, section 7, explicitly protects the home.' Id. at 185. Under Washington law, the home receives heightened constitutional protection and is treated as a highly private place which can be 'invaded' even though there is no physical entrance into the house. Id. For that reason, " 'the closer officers come to intrusion into a dwelling, the greater the constitutional protection'" Id. (quoting State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419 (1984)). See also Chrisman, 100 Wn.2d at 822 (the "heightened protection afforded state Citizens against unlawful intrusion into private dwellings places an onerous burden upon the government to show a compelling need to act outside of our warrant requirement") (quoted in Young, 123 Wn.2d at 186). We recognize the result in this case might be different had the garage been at some distance from the house. But here we afford it the same level of protection because it was right next to the home.


must fall within one of the recognized exceptions to the warrant requirement."[W]hen a law enforcement officer is able to detect something by [using] one or more of his senses while lawfully present at the vantage point where those senses are used, that detection does not constitute a 'search'."«6» For that reason, courts have held that a police officer's visual surveillance does not constitute a search if the officer observes an object with the unaided eye from a nonintrusive vantage point.«7» This kind of surveillance does not violate article 1, section 7, because what is voluntarily exposed to the general public and observable from aft unprotected area without using sense enhancement devices is not part of a person's private affairs.«8» But "a substantial and unreasonable departure from a lawful vantage point. or a particularly intrusive method of viewing, may constitute a search."«9» In Young, the Washington Supreme Court held that an infrared device is an intrusive means of observation which exceeds the limits on surveillance under

«6» Id. at 182 (quoting State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981)

«7» Id. at 182. Here, police appear to have been on the mute that a person up preaching the house would normally use to reach the front door. A photograph of the house shows the driveway leading directly to the garage which is adjacent to the house to its right. The path to the front door begins close to the bottom left hand corner of the garage and goes straight along the front of the house. See State v. Rose, 128 Wn.2d 388, 392, 909 P.2d 280 (1996) (police with legitimate business may enter areas of the curtilage which are impliedly open such as access routes to the house); State v. Daugherty, 94 Wn.2d 263, 268-69, 616 P.2d 649 (1980) (that portion of driveway which represents conventional access to door is impliedly open), cert. denied sub nom. Washington v. Daugherty. 450 U.S. 958 (1981). While police used the normal, most direct access route to the house they deliberately avoided contact with the residents on this visit, 'spied' into the house by using








a means other than their own senses to detect what could normally not be detected from outside, and arguably created an artificial vantage point (an ordinary visitor approaching the front door would be highly unlikely to press his nose against the seams of the garage door). See Seagull, 95 Wn.2d at 905 (listings factors to determine whether the open view doctrine has been violated); State v. Graffius, 74 Wn. App. 23, 27, 871 P.2d 1115 (1994).

«8» Id.

«9» Id. at 182-83 (citing State v. Myers, 117 Wn.2d 332, 345, 815 P.2d 761 (1991); Seagull, 95 Wn.2d at 901).


635

Washington law because it allows police to detect heat distribution patterns undetectable to the naked eye or other senses.«10»

[4] Like an infrared thermal detection device, using a narcotics dog goes beyond merely enhancing natural human senses and, in effect, allows officers to "'see through the walls' of the home."«11» The record is clear that officers could not detect the smell of marijuana using only their own sense of smell even when they attempted to do so from the same vantage point as Corky. As in Young, police could not have obtained the same information without going inside the garage.«12» It is true that a trained narcotics dog is less intrusive than an infrared thermal detection device. But the dog "does expose information that could not have been obtained without the 'device'"«13» and which officers were unable to detect by using "one or more of [their] senses while lawfully present at the vantage point where those senses are used."«14» The trial court thus correctly found that using a trained narcotics dog constituted a search for purposes of article 1, section 7 of the WASHINGTON CONSTITUTION and a search warrant was required.«15»

The State argues that because a dog detects the same

«10» Id. at 183.

«11» Id.

«12» Id. at 183 n.1; 191 (device revealed a critical fact about the interior of the premises that the government "could not otherwise have obtained without a warrant") (quoting United States v. Kara, 468 U.S. 705, 715, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984)).


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«13» Id. (Emphasis in original.)

«14» Id. at 182 (quoting Seagull, 98 Wn.2d at 901).

«15» While it is unnecessary to reach the question raised in Dearman's cross appeal, i.e., whether police had a legitimate investigative reason to be on the property even after they learned no one was home, we agree with the trial court that they did. Ironically, although the State does not challenge the trial court's finding that police had only a reasonable suspicion and not probable cause, they may well have had enough information to obtain a search warrant, at least under this court's more recent decisions. In addition to a humming noise like electrical ballasts used in marijuana grow operations, police observed that the garage windows were covered with a white vinyl material similar to the vapor barrier commonly used to keep the lights in a marijuana grow operation from being detected. There were also spider webs on all sides of the garage door, indicating that it had not been opened in some time. Police had obtained electric utility records showing that the current tenant used up to twice as much electricity each month as the previous tenant, a pattern which is consistent with marijuana grow operations.


kind of molecules a human detects, albeit in far smaller numbers, it merely enhances a human sense and is more similar to a pair of binoculars than to an infrared thermal detection device. It notes that in Young, the court rejected the argument that the heat emanations detected by infrared are similar to odor emanations detected by trained dogs.«16» But Young also expressly stated its approval of the reasoning in United States v. Thomas.«17» In Thomas, the court held that using a trained dog to sniff for narcotics outside the defendant's apartment door constituted a search that, absent a warrant, violated the Fourth Amendment.«18» As Young observed, Thomas attached significance both to the method of sensory enhancement and to the fact that a residence was involved. Young quoted the following language from that decision:

With a trained dog police may obtain information about what is inside a dwelling that they could not derive from the use of their own senses. Consequently, the officers' use of a dog is not a mere improvement of their sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different, and far superior, sensory instrument. Here the defendant had a legitimate expectation that the contents of his closed apartment would remain private, that they could not be "sensed" from outside his door . . . . Because of [the] defendant['s] heightened expectation of


«16» Id. at 192. In Young it was the State which urged the court to draw a direct analogy between the two.

«17» 757 F.2d 1359 (2d Cir.), cert. denied, 474 U.S. 819 (1988) (cited with approval in Young, 123 Wn.2d at 194).

«18» The State urges us to rely instead on United States v. Colyer, 878 F.2d 469 (D.C. Cir 1989), which declined to apply the Thomas reasoning to a dog sniff of a train sleeper compartment. But the Colyer decision was handed down in 1989, five years before the decision in Young. Given our Supreme Court's express endorsement of the reasoning in Thomas, notwithstanding that it was presumably well aware of the Colyer decision, we decline to do so.

637 STATE v. BENNETT Sept. 1998 92 Wn. App. 637

privacy inside his dwelling, the canine sniff at his door constituted a search . . . .«19»

The Young court added that Thomas "correctly recognized that when a private dwelling is the object of a search, and the means used reveal more than what a person can be said to knowingly expose, the protections of the Fourth Amendment are triggered."«20» For that reason, it held that "[w]hen the police use sense-enhancing devices to obtain information from someone's home that could not be obtained by unaided) observation of the exterior, they should have a search warrant."«21» Under this rule, the trial court properly concluded that police had to get a search warrant before they could use a trained narcotics dog to search Dearman's residence.

Affirmed.

WEBSTER and ELLINGTON, JJ., concur.

«19» Young.123 Wn.2d at 194 (quoting Thomas, 757 P.2d at 1367).

«20» Id. at 194. The court noted none of the Washington appellate court cases where warrantless dog sniffs were approved involved private residences. Id. at 1SS (citing State v. Stanphill, 53 Wn. App. 623, 769 P.2d 861 (1989) (dog sniff of package at post office); State v. Boyce, 44 Wn. App. 724, 723 P.2d 28 (1986) (dog sniff of safety deposit box at bank); State v. Wolohan, 23 Wn. App. 813, 598 P.2d 421 il9791 (dog sniff of parcel in bus terminal not a search), review denied, 93 Wn.2d 1008 (1980)). In each of these cases,






the courts acknowledged a dog sniff might constitute a search if the object or location of the search were subject to heightened constitutional protection. Id. at 188.

«21» Id. at 194 (citing Karo, 468 U.S. at 714).

3. Excerpts from Curbing The Dog -- An article soon to be published

Following are excerpts from an encyclopedic and scholarly article soon to be published. Its author is Professor Lewis Katz, the John C. Hutchins Professor of Law at Case Western Reserve University. His co-author, Aaron P. Golembiewski, has a B.A. and M.A. in education from the University of Michigan and is a law student at Case Western with an expected graduation date of May, 2007. No page citations are available from the draft version Professor Katz has generously made available for this presentation. Footnotes have been omitted. Excerpts: In 1983, the Supreme Court exempted dog sniffs from the reasonableness requirement of the Fourth Amendment.1 The Court stated that the dog sniff of a piece of luggage is not a search subject the Fourth Amendment because a dog sniff is a limited intrusion capable only of accurately determining whether or not the luggage contained contraband. That statement was not central to the case.2 Although the luggage had been properly seized based on reasonable suspicion, the Court held that the extended detention of the piece of luggage was unreasonable. That the statements pertaining to dog sniffing were not central to the decision in Place is a fact that has been consistently ignored by the more than 2,000 cases citing to United States v. Place for the proposition about dog sniffs. Thus, a case seemingly limited to determining the limits of a seizure of a suitcase on less than probable cause has become the cornerstone of the categorical elimination of judicial oversight of canine units. Today, canine units operate almost without any legal controls, expanding a doctrine created only for luggage to the arbitrary use of dogs on vehicles, homes, and persons at the unlimited discretion of a police officer. * * * * * * The purpose of this article is to re-examine the analytical reasoning behind Justice O=Connor=s conclusion that a drug dog is Asui generis.@ Part I of this article revisits the Place decision and the case law on which extensions of Place rest. Part II examines the drug dog in terms of the accuracy of Justice O=Connor=s three prong analysis which served to place a dog sniff outside the reach of the Fourth Amendment. Parts III, IV and V examine whether dog sniffs of homes, students and other persons, subjects historically deserving Fourth Amendment protection, should follow the Place doctrine. This article concludes by suggesting that the Place analysis was based upon a foundation of sand, and

1 United States v. Place, 462 U.S. 696 (1983).

2 Id. at 723 (Blackmun, J., concurring) (AMoreover, contrary to the Court's apparent intimation ... an answer to the question is not necessary to the decision. For the purposes of this case, the precise nature of the legitimate investigative activity is irrelevant. Regardless of the validity of a dog sniff under the Fourth Amendment, the seizure was too intrusive. The Court has no need to decide the issue here.@).

not only should Place not be extended, it should be overturned and that the traditional Fourth Amendment standards should control the use of a drug dog. * * * * * * Justice Souter, dissenting, finally raised one persistently ignored issue by challenging the assumption that drug dogs are nearly infallible. That unsubstantiated claim in Place was finally addressed as Justice Souter produced high rates of dog error, false positives having been measured and accepted by courts at 7%, 12.5%, and 60%. Justice Souter pointed out that “the evidence is clear that the dog that alerts hundreds of times will be wrong dozens of times.” Furthermore, Justice Souter noted that false alerts are endemic due to the constant presence of cocaine on American currency. The enormous range has two distinct effects: it demonstrates that the dog cannot be considered “sui generis” and it demonstrates even greater unreliability by individual dogs due to inconsistency. Without consistency, broad statements regarding the accuracy of drug dogs are patently false because individual dogs are too specific. Without such generalizations, the “accuracy of a drug dog” cannot be measured beyond one individual dog, which cannot be the basis for sweeping statements about the accuracy of all dogs. Justice Souter concluded that once the dog’s fallibility is recognized it ends the justification in Place for treating the sniff as sui generis. He also said that “given the fallibility of the dog, the sniff is the first step in a process that may disclose ‘intimate details’ without revealing contraband, just as the thermal imaging device might do as described in Kyllo v. United States.” Finally, Justice Souter warned of the slippery slope that Caballes presents:

The portent of this very case, however, adds insistence to the call, for an uncritical adherence to Place would render the Fourth Amendment indifferent to suspicionless and indiscriminate sweeps of cars in parking garages and pedestrians on sidewalks; if a sniff is not preceded by a seizure subject to Fourth Amendment notice, it escapes Fourth Amendment review entirely unless it is treated as a search.

In the years between Place and Caballes, Justice Brennan’s hope that the Supreme Court would step forward to halt the erosion of Fourth Amendment rights has not been fulfilled. Coupled with the ruling in United States v. Whren, that a police officer’s motivation for a stop or arrest is not subject to review if there an objective basis for the stop (reasonable suspicion) or arrest (probable cause), the affirmation of the Place doctrine in Caballes v. Illinois, allows police officers to lawfully stop a vehicle for any trivial violation and then subject that vehicle to a check by a drug dog.. Caballes and Whren operate in tandem allowing police virtually to stop any motorist and by the use of a drug dog check the motorist’s car for drugs at the whim of a police officer, even if a reasonable police officer would not have stopped for such a trivial offense, or even if the real reason for the stop is not the traffic violation but the race of the motorist. Where race is the motivation, the motorist may have an Equal Protection claim, but not a Fourth Amendment claim.

* * * * * * The Place doctrine that a dog sniff is not a search rests upon three premises: 1) that a dog sniff is a minor intrusion, 2) that a dog discloses nothing other than whether the object of the sniff contains contraband or the person subject to the sniff is carrying contraband, and 3) that dogs are extremely accurate when discerning the presence of illegal drugs. As a result of these three characteristics, the Court decided that the drug dog is sui generis. The Place doctrine is entirely dependant upon the accuracy of these three premises. However, Justice O’Connor’s majority opinion in Place failed to cite any authority for these conclusions. Moreover, in 2005, when the Supreme Court extended, as lower courts had anticipated for two decades, the Place doctrine to dog sniffs of automobiles in Illinois v. Caballes, Justice Stevens’ majority opinion again failed to proffer any authority, beyond Place itself, for the accuracy of these conclusions. And, again in 2005, in Florida v. Rabb, the Court appears to have extended the Place doctrine to homes when it summarily reversed a Florida appeals court decision, without briefing and without argument, simply remanding to the lower court to reconsider the case in light of the Supreme Court’s decision in Caballes. Consequently, this crucial doctrine rests on no support and cites no empirical data. Most importantly, its conclusions are wrong. * * * * * * . . . .[T]he intentional ignorance of the courts has allowed dog handlers to operate without oversight, resulting in an expansion of Place beyond its original intentions. * * * * * * Existing case law demonstrates that the false alert rate among certified drug dogs varies greatly. Further, the assertion in Place that drug dogs are highly accurate, was not supported by any authority or empirical studies; Justice O’Connor’s majority opinion simply stated the conclusion as an established fact. In Illinois v. Caballes, Justice Stevens’ majority opinion simply relied upon Place for the proposition that drug dogs are highly accurate. Thus the Court relied upon itself for that proposition even though Place offered no evidence to undergird its conclusion. * * * * * * . . . . [C]ourts consistently refuse to examine the standards that are used in the certification process, allowing police canine units to utilize internal and private certification processes which have the potential to be abused to the degree of using untrained dogs and fraudulent certificates. While some external, third party certifications do exist that could meet the requirements of most scientific research demands, the absence of judicial concern for the certification process creates no incentive for canine units to undertake these expensive third-party certifications. * * * * * *

There is no justification for the absence of a national uniform certification process for drug dogs as well as a national uniform certification process for dog certifiers. At present neither option exists because courts are unwilling to inquire beyond the claim that a drug dog is certified. * * * * * * Handler error affects the accuracy of a dog. The relationship between a dog and its handler is the most important element in dog sniffing, providing unlimited opportunities for the handler to influence the dog’s behavior. Dogs are animals, replete with animal tendencies and instincts which the handler seeks to understand and control. Even the best training cannot entirely control these instincts. There are two broad categories of handler error, both of which can be intentional or inadvertent. * * * * * * The handler’s interpretation of the dog’s signal is not similar in kind to the drug test in United States v. Jacobsen which could be preserved and replicated at a later time. The field test in Jacobsen was repeated by a second group of federal agents to reduce the possibility of error. Even the thermal scanner utilized in Kyllo produced an image that allowed a judge to determine whether or not to grant probable cause. Unlike the evidence in Jacobsen and Kyllo, the drug dog sniff occurs in a legal vacuum where the handler determines if the dog alerts and then testifies with certainty regarding the alert without any judicial oversight or requirement to reproduce the results of the sniff. The current doctrine allows the police to circumvent the need for probable cause by placing unquestioned reliance on the handler’s testimony that a drug dog alerted. * * * * * * The continual lack of judicial oversight assures that handlers can push the bounds of what constitutes an alert until the rare court examines the dog sniff and the even more rare handler admits to accepting an ambiguous alert. * * * * * * Any time a person is subjected to a dog sniff it actually is a search, whether it is a schoolchild, a motorist, or a pedestrian. Developing a legal fiction to permit dog sniffs to remain outside the protection of the Fourth Amendment is a blatant attempt to provide law enforcement with a tool that can be easily abused, all the while sacrificing common sense. Whether a dog is sui generis or not, the dog is searching for contraband. The object of the search should not insulate the government from the protections of the Fourth Amendment. * * * * * *

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