UPDATE: Pete at Drug WarRant hit the nail on the head when he named the problematic kernel at the heart of Monday's Illinois v. Caballes decision:

"...this notion that a device (in this case a dog) that can detect specifically illegal items is not, by definition, an invasion of privacy, since there is no right to possess illegal items."

By using this standard to define what constitutes a "search," the Supreme Court has set a very dangerous precedent. Potentially, any police efforts to search you for 'contraband' might fall outside Fourth Amendment protection, since "you don't have a legal right to possess those items" in the first place! Some would answer, "well, if you aren't doing anything illegal, you've got nothing to worry about." Sorry: that's not how our system is supposed to work, and that's not what the framers of the Constitution intended. The Fourth Amendment does not say you're protected against unreasonable search and seizure without a properly issued warrant - unless you're doing something illegal, in which case, tough luck, Charlie.

Yesterday, the U.S. Supreme Court ruled that when police use drug-sniffing dogs during routine traffic stops, without probable cause (or even reasonable suspicion) that narcotics laws have been broken, the practice does not constitute a search. In its decision re: Illinois v. Caballes,

The Supreme Court, in a 6-2 decision Monday, ruled that police do not violate the Fourth Amendment when they use a drug-detecting dog to locate illegal drugs in the trunk of a car during a legal traffic stop. In an opinion written by Justice John Paul Stevens, the Court declared: "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 Court majority stressed that it was ruling only narrowly, in a situation where a dog was used only to check out the exterior of a car stopped for speeding. Thus, the Court appeared to leave open the question of conducting a dog-sniff investigation outside of a home, if that were capable of detecting legal activity going on inside the residence. A number of cases are pending at the Court challenging the use of dogs to sniff the exterior of homes.

Justices Ruth Bader Ginsburg and David H. Souter dissented, but each indicated they were not saying police could not use dog-sniffs to detect explosives or biological weapons, perhaps used by a terrorist. [SCOTUSBlog]

Drip, drip, drip...is that sad, hollow sound of civil liberties being eroded one drop at a time. Since the 1980's, the Fourth Amendment's protections against unreasonable search and seizure have shrunk and receded like ice floes in spring...or perhaps Antonin Scalia's hairline...but please, how does one rule with a straight face that allowing a dog to sniff your vehicle for contraband is not a "search"?

Apropos, Fourth Amendment searches were the subject of my last term paper, and I recall that a similar, if more high-tech, means of indirectly detecting evidence (using infrared cameras to "see" excessive heat generated by drug grow-lamps emanating from buildings) was held unconstitutional (Kyllo v. U.S. (2001)). I wonder: would the Court have ruled similarly if police were not using dogs, but rather, portable electronic "sniffers" (another type of "off-the-wall," or passive, detection device; as opposed to "through-the-wall" or active devices like radar or X-ray machines) that would detect traces of drugs, explosives, etc., during routine traffic stops? What if traffic patrols were outfitted with "sniffers" as part of their standard equipment, and an officer would not have to wait for the nearest K-9 unit to arrive to perform a sniff search?

My understanding is that if a traffic officer has reasonable suspicion that the occupants of a vehicle may be in possession of narcotics - i.e., the driver or occupants seem intoxicated, or there is a suspicious odor in the car - then the officer may legally perform a search, dog or no dog. Without this sort of reasonable suspicion, using an animal or mechanical device to detect drugs amounts to a "fishing expedition."

If an officer performing a routine traffic stop must call for a narcotics dog unit - to sniff the vehicle - the assertion that no search is taking place is absurd.

While today's ruling may strike some as a narrow, well-defined provision to assist law enforcement in the "War on Drugs," I (and without a doubt many others) see it as nothing so benign.

The word arrived in my inbox via ACLU Alerts, and good commentary is available at Drug WarRant, The Volokh Conspiracy [who cover the Kyllo aspect], and Grits for Breakfast. Freespace takes a closer look at the "gaping holes" in the Court's decision, and further links a detailed analysis over at Jurispundit.

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