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November 11, 2004

THE NATION
Top Justices See Benefits of Police Dogs

  In oral arguments on an Illinois ruling that police must have evidence
before using them, most of the Supreme Court agrees that a 'sniff is not a
search.'

By David G. Savage, Times Staff Writer

WASHINGTON - A dog can be a drug cop's best friend, and most of the Supreme
Court justices said Wednesday that they saw no reason to limit a police
officer's use of a dog to sniff out drugs or explosives.

The high court is being urged to overturn a 2003 decision by the Illinois
Supreme Court, which held that a police officer who stopped a car for
speeding needed evidence of a drug crime before the officer called in a
drug-sniffing dog. Otherwise, the state judges said, all traffic stops
could turn into drug searches.

But many of the Supreme Court justices seemed to view the issue differently
during oral arguments Wednesday.

"A dog sniff is not a search," Justice Sandra Day O'Connor told a lawyer for
the Illinois defendant, flatly rejecting the essence of his case.

Around Capitol Hill, O'Connor said, there are many security checkpoints, and
some use dogs to check cars, packages and backpacks. Are all of those
searches unconstitutional? she asked.

In their comments and questions, O'Connor and most of her colleagues said
they were not prepared to rule that a police officer first had to have
hints of a crime before the officer used a dog to sniff for evidence.

"Dogs are used all over the country with great effectiveness,"
Christopher Wray, an assistant U.S. attorney general, told the court. They sniff for
bombs and drugs at the borders, at airports and bus stations, and around
cars that are stopped on the highway. "There is no intrusion [on the privacy
of the owner], and therefore no search," he said.

Illinois Atty. Gen. Lisa Madigan argued that nothing in the Constitution
prevented the police from using dogs to sniff around cars. "A dog sniff is
not a search and requires no justification," she said.

Madigan and the Bush administration are urging the justices to overturn the
Illinois Supreme Court decision.  That ruling had been a victory, perhaps a temporary one, for Ray Caballes.  The salesman said he was moving from Las Vegas to Chicago in November
1998 when an Illinois state trooper stopped him on Interstate 80 for driving
71 mph in an area where the speed limit was 65.

When the state trooper stopped Caballes, another trooper radioed that he
would be there shortly with a drug-sniffing dog. Immediately, the dog
responded to smells from the trunk of the car, where the troopers found marijuana.

The 4th Amendment bans "unreasonable searches and seizures" by the
government, and the Supreme Court has struggled for decades to decide what
is and is not an "unreasonable search."

Three years ago, the high court surprised law enforcement experts by ruling
that it was unconstitutional for drug agents to use heat-seeking devices to
detect marijuana plants growing inside a home. Usually, the plants grow under hot lights
that emit heat that can be detected from the street.

But on Wednesday, Justice Antonin Scalia, the author of the 2001 opinion,
said it did not mean the use of drug-sniffing dogs was unconstitutional.
The heat detectors are a new technology that can, in effect, look inside a
house, he said.

"This is not a new technology. This is a dog," Scalia said.

In the past, the court has upheld the use of drug-sniffing dogs in bus depots. "It was a good place to find criminals carrying drugs.. And the Republic seems to have survived," Scalia said.

Two justices, David H. Souter and Ruth Bader Ginsburg, raised doubts about
the widespread use of dogs.

If the use of a sniffing dog is not a search, "why can't police go up to the
front door of every house on the street?" asked Souter. When the homeowner
comes to the door, the dog could sniff for drugs inside, he said.

The government lawyers said police were unlikely to undertake such efforts. Dogs can be large, loud and frightening, Ginsburg said, and many citizens may say to themselves, "I have a right to be let alone by my government."

Chief Justice William H. Rehnquist, who is undergoing treatment for thyroid cancer, was at home, but Justice John Paul Stevens said Rehnquist reserved the right to vote on the outcome in the case, Illinois vs. Caballes.


Footnote: Souter is neo socialist and Ginsberg looks like a dog!