Bark if you love Justice Souter!

Oral argument from the court.
Nov. 10 2004 7:00 PM

The Truth About Cats and Dogs

Bark if you love Justice Souter!

F. Scott Fitzgerald wrote, "[A]lmost everybody can be imagined as either a cat or a dog," and nowhere is that more true than the Supreme Court. Oral argument splits cleanly today between justices who would rather be up a tree than at the mercy of a canine and those who can't seem to get enough of man's best friend.

Roy Caballes was stopped on I-80 for driving 71 mph in a 65-mph zone. Illinois state trooper Daniel Gillette asked to see his license and registration, then told Caballes he'd let him off with a warning. Gillette had him wait in his patrol car while a license check took place. Meanwhile, another officer from the state's drug interdiction team became inspired to race over independently and check out Caballes' car for drugs. His sniffy dog found them. Caballes was sentenced to 12 years in prison for drug trafficking. He tried to suppress the drug evidence, claiming the dog sniff was illegal. The Illinois Supreme Court agreed with him, finding that some kind of "reasonable, articulable suspicion" of criminal behavior is necessary before releasing the hounds.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

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The Fourth Amendment prohibits the government from searches or seizures that are not reasonable. Generally, if the state wants to search you, officers need probable cause and a warrant. In Caballes' case, there is no question that the original traffic stop was lawful. He was speeding. But nothing Gillette could have seen or smelled on his own would have raised his suspicions about contraband. The problem is the dog sniff that got bootstrapped onto the business of writing up a warning. So the question for the Supreme Court: Is initiating a dog sniff, with no underlying suspicion of criminal activity, a "search" for Fourth Amendment purposes?

The ACLU filed an amicus brief on Caballes' side. Among briefs filed on the government side was a joint pleading by Underdog, Scooby Doo, and McGruff.

Illinois Attorney General Lisa Madigan (collie) certainly thinks dog sniffs are reasonable, and she's got the case law to prove it. In a 1983 case, United States v. Place, the Supreme Court found that a dog sniff (in a different context) was not a search for Fourth Amendment purposes. Four years ago in Indianapolis v. Edmond, the court invalidated roadblocks used solely for drug interdiction, expressly saying that dog sniffs are "much less intrusive than a typical search." Madigan points out that under either case, a dog sniff doesn't implicate the Fourth Amendment.

Justice David Souter (Persian) is quick to agree that a sniff isn't a "full blown search," but adopting the government's either/or position, he says, means there's "nothing to prevent the police from taking dogs to every municipal garage" and around the foundations of every private home, just to see if the dog gets a "sniff of something."  

When Madigan reiterates that dog sniffs are not searches, Justice Ruth Bader Ginsburg (calico) takes a swipe: "Is that your answer? That police can parade up and down the streets of the country with dogs?" Madigan tries to reassure her that yes, that's constitutionally true, but Illinois, at least, doesn't have the resources to actually deploy a whole army of snoop dogs.

Justice Antonin Scalia (Chesapeake Bay retriever; darling of the duck hunters) points out dryly that the case law permits the use of indiscriminate dog sniffs at bus depots "and the republic seems to have survived." Justice John Paul Stevens (the Cat in the Hat) then asks whether Caballes was really only driving 6 miles over the speed limit when he was stopped. "I don't imagine you stop everyone on I-80 going 71 miles per hour. ... I know I've done it many times myself," he adds.

"Inadvertently," prompts Scalia, trying to save Stevens' confession from turning into a spontaneous courtroom dog sniff. Scalia asks Madigan whether Kyllo v. United States would have come out differently if the technology could detect only dead bodies with knives in their hearts as opposed to a broad range of activities. (Kyllo, you may remember, was the 2001 thermal imaging case. Cops were using scanners to determine whether you were growing pot—or engaging in, heh heh, other heat-producing activity—in your home. Scalia wrote the 5-4 decision finding such searches unconstitutional.)

"I would hope that would have come out differently," says Madigan.

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