- The Washington Times - Tuesday, January 25, 2005

Police who use drug dogs to sniff vehicles during routine traffic stops are not violating motorists’ constitutional right to privacy if contraband is discovered, the Supreme Court ruled 6-2 yesterday.

In setting aside a ruling by the Illinois Supreme Court in a 1998 case in which marijuana was found by a dog after the driver was stopped for exceeding the speed limit by 6 miles an hour, Justice John Paul Stevens — in the majority opinion — said a lawful search that discovers contraband “compromises no legitimate privacy interest.”

“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,” Justice Stevens said. “Our cases hold that it did not.

“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,’ ” he said.


Justice Stevens was joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer.

The dissenting opinion was written by Justice David H. Souter, joined by Justice Ruth Bader Ginsburg.

Justice Souter called the use of the dog to determine the presence of marijuana in the car’s trunk a “search unauthorized as an incident of the speeding stop and unjustified on any other ground.”

“The argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the sniff ‘does not implicate legitimate privacy interests’ and is not to be treated as a search,” Justice Souter said.

Chief Justice William H. Rehnquist took no part in the decision.

The case involved the 1998 arrest of Roy Caballes, who was stopped by Illinois State Trooper Daniel Gillette on Interstate 80 for speeding. While Trooper Gillette was writing a warning ticket, a second trooper, Craig Graham, a member of the Illinois State Police Drug Interdiction Team, responded with his narcotics-detection dog, who was walked around the vehicle.

Caballes had refused to give Trooper Gillette permission to search his vehicle, a request made after Caballes appeared to be nervous and after an air freshener was found in the car, the trooper reported.

When the dog alerted to evidence of drugs in the trunk, the troopers searched the trunk, found $250,000 worth of marijuana and arrested Caballes. He was charged with one count of marijuana trafficking, convicted and sentenced to 12 years in prison.

At trial, a judge denied Caballes’ motion to suppress the seized evidence, ruling that the dog had provided sufficient probable cause for the troopers to conduct the search. An appeals court panel upheld the trial judge, but the Illinois Supreme Court reversed the decision, saying there were “no specific and articulable facts to suggest drug activity” and that use of the dog “unjustifiably enlarged a routine traffic stop into a drug investigation.”

In the majority opinion, Justice Stevens said a dog search 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” did not violate Caballes’ Fourth Amendment rights against unlawful search and seizure.

But Justice Souter argued that the “infallible dog” was a “creature of legal fiction.”

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