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November 11, 2004

Man's Best Friend? The 4th Amendment

It's been just over two years since the last time I visited the Supreme Court. Because I'm only going to be in the area for a few more months, I decided I need to drop in on the nine to catch up and see how they're doing. Attending oral arguments at the Supreme Court remains an extraordinary experience, inspiring and educational in countless ways. I hope to get back there once or twice more before graduating.

The absence of Chief Justice Rehnquist is really odd. It changes the vibe and the empty seat is very prominent (not just for its center position... it just really stands out).

Illinois v. Caballes

Just the facts, ma'am:
Caballes was pulled over for going 71 in a 65 (Damn kids! This isn't the Indy 500 you know) on I-80. It was shortly after 5pm when the officer (Sgt. Gillette, if I recall right) called in to dispatch that he had pulled Caballes over. After running Caballes' license and plates, he informed Caballes that he was going to issue a warning. Before this otherwise routine traffic stop was over, however, another officer called in and said he was going to the scene. Cop2 arrived on the scene and took his drug-sniffing dog up to Caballes' car. In less than a minute, the dog alerted the officer, triggering a search which led to the discovery of a quarter million dollars worth of pot. Caballes was charged with marijuana trafficking, found guilty, and sentenced to 12 years. The cops were charged with excessive consumption of Cheetos.

Caballes appealed his conviction. The Illinois Appellate Court affirmed the conviction, but the Illinois Supreme Court ultimately reversed, 4-3. The state appealed, the Supremes granted cert, and everyone headed to the big dance.

The Court considered whether or not the use of a drug snffing dog in a routine traffic stop was a violation of Caballes' 4th Amendment right to be free from unreasonable search and seizure.

This is a general idea/ pseudo-transcript of how things went, based on my notes from this morning, with my comments added throughout. Sadly, I'm a bit rusty on 4th Amendment jurisprudence, so you'll have to take my interjections with a grain or two of salt.

What follows is actually pretty far from a transcript. It's just my notes on the key exchanges, and now that I'm a day removed, my recollection as I type them in is less vivid. I'd say this part is really only for 4th Amendment or Supreme Court junkies. If that's you, read on.

If that's not you, click on over to SCOTUSBlog and find yourself a nice synopsis to read. They've put up a list of all the news coverage of the argument. Not surprisingly, Dahlia Lithwick's piece for Slate was excellent. I'd recommend it.

Note: Justices O'Connor and Kennedy were far more active in the argument than this portrays.... for some reason I didn't take down as much of what they were saying as I did of others. I also missed a lot because I was engaged in the argument and lost track of writing down. I'm no journalist!

Petitioner, State of Illinois

For Illinois, state Attorney General Lisa Madigan [I]

[I]: Based on this Court's rulings in Place and Edmond, a dog sniff is not a search. If there is no search, there is no 4th Amendment issue.

The state's got a point there. From what I understand about Place, this is going to be a tough hurdle for Caballes.

Justice Souter [DHS]: Even if a sniff isn't a full search, couldn't there be some level of intermediate search, just like there are levels of seizures?

[I]: The Court said in [Hicks?] that it wanted to avoid that level of analysis in evaluating searches.

[DHS]: So if it's not a search, the police can take dogs to every municipal garage, or walk them around someone's house. It seems like we'd be opening a "large vista for dog intrusions."

My notes say this part was Souter, but I recall it coming from Stevens

[I]: Yes, your honor, they could take the dogs to a garage. But practically, the state has very limited resources. Plus, the dogs are not trained to sniff for drugs on a person.

This was a really sharp answer by Madigan. It's the hardest part of the state's interpretation of the law to stomach -- the logical extreme of the state's position. She stood her ground well. Even if the part about scarce resources was a bit of a stretch.

Justice Scalia [AS]: Dogs are already used in a variety of places throughout our country, such as airports, bus depots, etc., and "the republic seems to have survived."

Justice Stevens [JPS]: Caballes was pulled over for going 71 in a 65? Even I've done that!

[AS]: Inadvertently!

The courtroom broke out in laughter.

On the issue of privacy in contraband... Scalia asks whether or not it this would affect the outcome of Kyllo, the heat senors case. Everybody chimes in. Souter and Scalia then distinguish that case.

[DHS]: Kyllo is different. In that case, the heat imaging could reveal intimate details about what was happening in the house. And houses get more 4th Amendment protection than cars.

[AS]: Kyllo also hinged on the fact that it was new, high tech equipment being used, and considered the prospect of even better tech being used later. We're not really thinking here about the possibility o higher tech dogs being used in the future.

[DHS]: The sanctity of the home issue from Kyllo doesn't really matter here though. If a dog sniff isn't a search, as Illinois asserts, then the home gets no more protection from dog sniffs than a car does.

Justice Ginsburg [RBG]: Dogs can be frightening and intimidating. Don't people have a right to be free from that fear in their daily lives?

[I]: The government uses lots of types of dogs for a variety of things. We see dogs everywhere. Police can't be asked to determine the potential for fright.

Amicus Curiae, United States

For the United States, Assistant Attorney General Christopher Wray [US]

Honestly, I didn't realize the US was amicus in this case, so I spent the first 5 minutes or so of his argument thinking that Caballes's attorney was conceding every major point of the case. Oops

[US]: Everyone agrees Mr. Caballes was stopped with probable cause. The question then is whether or not the second officer coming onto the scene with the dog required a separate justification.

[AS]: Does it matter if it's a dog or a smelling machine? Kyllo centers on new technology, and transaltes the 4th Amendment forward because the framers couldn't possibly have considered such technology in 1791. Dogs aren't new technology. They had dogs in 1791 and didn't consider them to be an intrusion into the home. If there's no intrusion, there's no search.

[JPS]: But those dogs weren't trained like these dogs.

The AG and Justices rehash the three parts of Kyllo yet again -- it dealt with a home, not a car; the heat sensors could potentially reveal intimate details; and it dealt with new technology not in public use. This gets old. More than halfway through the argument and the AG hasn't really explained why he's here and where the US position differs from Illinois'.

[US]: It's worth pointing out that the dogs aren't trained to smell narcotics. All dogs can do that. The training is for them to alert the officers when they smell the drugs.

Never thought of that way. Interesting. But not particularly relevant.

[JPS]: Is it different if it's a robot dog -- a machine -- instead of an animal?

Going for the distinction between this and Kyllo, apparently.

[AS]: Kyllo focused on whether or not the use of heat sensors was a reasonable search, not whether or not it was a search at all. That's a different issue here. Could we just say it's a search, but it's reasonable because it can only find contraband?

Here's the unfortunate view that only guilty people have something to hide, and they shouldn't have any rights anyway, so what difference does it make?

[US]: Yes.

At least, I think he gave Scalia that one. I can't imagine why he wouldn't have.

[US]: A sniff is not a search, it was a lawful stop, so there isn't a privacy interest implicated at all. What's more, based on the ruling in Atwater, Officer Gillette could have arrested and detained Caballes just for the traffic violation. Once he makes an arrest, he's entitled to search the car.

Ouch. That's a zinger.

[US]: The Illinois Supreme Court's mistake was in focusing on the question of when the traffic stop became a drug investigation. You shouldn't consider the scope of the investigation.

Finally! I wish he had gotten to his contention with the Illinois ruling with more than a minute remaining, because they didn't flesh this out very well, and I didn't entirely understand it. I think it's that the dog sniff happened as part of the traffic stop, so the only question was whether or not the sniff was lawful. Once the dog sniffs and alerts to the presence of drugs, it was obviously a drug investigation and the officers were right to pop the trunk and find the 250 lbs. of dope. At least, I think that was his point.

Respondent, Roy I. Caballes

For Caballes, Attorney Ralph E. Meczyk [C]

[C]: The state has no 4th Amendment justification for the sniff. There are two problems. First, it invaded Mr. Caballes's privacy. It's a search, even if a limited one.

[AS]: Is any observation a search? Don't we have to distingsuish search from investigation? Is it a search any time I see or smell something?

[C]: That's in plain view though.

Justice Breyer [SGB]: If everything is a search, there are billions of searches every day that the police don't have to justify.

He's setting up for a bigger argument later.

Justice O'Connor [SDO]: In Place and Edmonds we said a dog sniff is not a search. Are we to reverse those holdings?

[C]: Place was limited to a specific context, and the sniff in that case was related to the purpose of the search. Here, there was no connection between the sniff and the reason Caballes was pulled over.

An interesting tactic. Obviously, he has to distinguish from Place in case they don't want to reverse. But it's a strong move to ask for it, if you can support it (even if you don't expect it). Answering the hard questions straight looks good. It worked well for Madigan. Here, he looked like he was avoiding the question.

[AS]: If the investigation isn't a search, what's the distinction?

my notes on the exchange between Meczyk and Scalia here aren't very good, but Scalia nailed him on something. Tangling with Nino when you're not prepared is like fighting a land war in Asia. Part of why my notes are bad is because I was enjoying the show so much.

[SDO]: Can bomb dogs sniff any car on Capitol Hill?

[C]: Yes, but that's a different situation. There we have to make a public safety exception.

Slick to distinguish them, but I wonder if there's any legal basis for s public safety exception?

[SGB]: Instead of spending all this time focusing on the meaning of the English word "search," why don't we just address the issue of whether or not he had a reasonable expectation of privacy? The question is why this sniff triggers the 4th amendment review.

Breyer's trying to help move away from Place and get Caballes out of a bind here.

[C]: It invades a private space. The 4th Amendment gives the right to exclude, and Caballes wanted to exclude the police from his trunk.

Justice Kennedy [AMK]: But Place requires a legitimate interest in privacy, which doesn't apply to contraband.

Here we go again.

[RBG]: What if the dog had been in the first car that pulled Caballes over, rather than showing up later? Would that change it?

This is about as perfect a question as Meczyk could get. I think it's critical to Caballes case to focus on the fact that the second officer had no reason whatsoever to be there, and Caballes had no reason to expect he would be there. Had the dog been in the first car, the sniff could be seen as incident to a lawful stop with probable cause. Astonishingly, Meczyk didn't even understand the question. He and Ginsburn went back and forth a few times about what she was asking, even though she said she was taking the issue right from his brief. She really couldn't have made it any easier, but even when he finally did answer it made no sense. There was much gasping, sighing and rolling of eyes in the gallery at this point.

[C]: If the police didn't trigger the dog to sniff, it would be different. It wouldn't be an invasion of privacy. There's no difference if the 1st officer had the dog.

He was really rambling here because he didn't understand what she was getting at.

[RBG]: What if Officer Gillette had arrested Caballes for the traffic violation under Atwater, then seized the car and searched?

Ouch again. Shocking that it came from Ginsburg at this point.

[C]: But the officer didn't arrest Caballes. He said he was letting him off with a warning. At that point, Caballes has a higher expectation of privacy than in Atwater. This is just like what happened in Knowles v. Iowa.

[DHS]: If the officer arrested him, the search would be ok. They'd have to do an inventory search when they took the car in just to protect themselves. How is there a reasonable expectation of privacy when, in the same traffic stop, the officer could have arrested him and conducted a thorough search?

[C]: But the officer didn't make that arrest. He just issued a warning, which effectively reinstated Caballes's expectation of privacy.

[SGB]: Can the officer himself sniff the car?

Breyer started talking about if the police were looking for limberger cheese. Then the cop could smell it himself. Strange.

[C]: BUt that would be like plain site.

[SGB]: So for there to be a reasonable expectation of privacy, how do you distinguish it from all the times a sniff is ok, like in a bus depot or at the airport?

[DHS]: Hypothetically, if the police can arrest, they can sniff.

[C]: But it depends if they make the arrest.

[DHS]: Does the expectation of privacy depend on the actual arrest?

[C]: Yes.

They ran out of questions at this point. Breyer looked defeated, like he had completely given up because he couldn't get through to this guy. At the end of it, he was leaning back in his chair looking up at the ceiling like Thomas.

Petitioner's Rebuttal

[I]: Does it matter if the dog is in the first car? No. Caballes is asking for the Court to say there is an inadvertence requirement, which the Court rejected explicitly in [Horton?]. Whether or not the sniff is lawful can't depend on whether it was an accident.

Even though Meczyk completely bumbled this, she was smart to go after it. Presumably it was covered better in Caballes's brief, and it was an important issue for Illinois to win. Madigan handled it well, I thought.

[I]: Walking a dog around the house... is that a search? It's a closer case, but ultimately, it's still ok.

This was an interesting point. She's sticking to her guns that it would be ok to walk the dog through the neighborhood and smell the houses, but she recognizes that some of the justices are uneasy about that, which is why she says it's a closer case. If a sniff is truly not a search, the sanctity of the home doesn't qualify for an exception. Based on that, my friend suggests that the opinion will be a narrowing of the ruling in Place. Look for the Court to find a way to say that what happened to Caballes was ok, but to preserve the sanctity of the home established in Kyllo -- they'll pull back from the holding in Place and say that a sniff is a limited search, but that the expectation of privacy in a car has been so far diminished that this sniff was ok.

Posted by buddha at November 11, 2004 11:32 PM

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Inform the baja men: Scalia lets the dogs out.

Anyway, an interesting part is the hesitency by counsels for both Illinois and the US in extending dog sniffs to homes. As half the justices pointed out, if dog sniffs aren't a "search" under place, then a reasonable expectation of privacy (even specific to the home, Kyllo) never enters the analysis, and won't bar state use of the dogs.

So, despite Place, dog sniffs might be some kind of search, even for the purposes of the fourth amendment--which gets us to Souter's lead-off question to Madigan, where he hints at some sort of spectrum of searches, as there seem to exist to describe a range of seizures.

Posted by: mike at November 12, 2004 03:11 AM

The Illinois AG was pretty straightforward about it on the first round, I thought. But over the course of the argument, it seemed pretty clear that the liberal half of the bench didn't like the idea of letting the dogs check out houses without any threshhold of suspicion. It doesn't pass the smell test, so to speak. So she backed off of it in rebuttal, giving the court a way out by establishing a middle ground.

Posted by: buddha at November 12, 2004 10:24 AM

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