The Journal of The DuPage County Bar Association

Back Issues > Vol. 14 (2001-02)

Sniffing Around The Fourth Amendment: The Constitutionality of Warrantless Dog-sniffs
By Hon. Mark W. Dwyer

Canine sniff inspections are becoming increasingly more frequent in our society, especially in light of the events of September 11, 2001. This article will focus specifically on dog sniffs of automobiles under both the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Illinois Constitution as interpreted by the Illinois courts.

The Fourth Amendment to the United States Constitution protects Americans against "unreasonable searches and seizures" by government officials. A search generally requires a warrant evidencing probable cause and describing with particularity the place to be searched and the persons or things to be seized. However, unless police officers contemplate or execute a "search" within the meaning of the Fourth Amendment, no warrant is necessary.

The Supreme Court first addressed the constitutionality of dog sniff searches in United States v. Place, 462 U.S. 696 (1983). In Place, the Court relied on the Terry balancing test, Terry v. Ohio, 392 U.S. 1 (1968), in concluding that law enforcement officials may temporarily detain luggage for exposure to a dog sniff test where there is reasonable suspicion that the luggage contains narcotics.1 Perhaps, the most important aspect of Place, however, was the Court’s judicial dicta that a dog sniff of luggage does not constitute a search within the meaning of the Fourth Amendment.2 In so concluding, the Court acknowledged that an individual possesses a privacy interest in the contents of his or her luggage that is protected under the Fourth Amendment. However, the Court observed that a dog sniff does not run afoul of these privacy interests because it does not require opening the luggage and does not expose non-contraband items; rather, it only exposes the presence or absence of narcotics which are contraband.3 Thus, both the information obtained and the manner in which it is obtained are so limited as to not constitute a search under the Fourth Amendment.4 The Court specifically noted that a canine sniff is "sui generis."5

The Court later characterized the judicial dicta in Place as a "holding" in United States v. Jacobsen, 466 U.S. 109 (1984), and federal and state courts have subsequently followed the Jacobsen Court’s position that the Place discussion of dog sniffs is binding precedent, especially in cases involving luggage, shipped packages, lawfully detained automobiles, and semi-trailers.6 Courts continue to apply a balancing test regarding the individuals’ expectation of privacy and the level of governmental intrusion in determining whether the Fourth Amendment governs dog sniffs as regards seizures. Where the intrusion is minimal, the opposing interests of law enforcement may justify a seizure based on less than probable cause.7

Although federal case law states that canine sniffs of lawfully detained automobiles are not searches and therefore not violative of the Fourth Amendment, several states have determined that they are searches under the provisions of their state constitutions. While the issue is currently pending before the Illinois Supreme Court in People v. Cox, Docket No. 90759, several Illinois Appellate Court decisions have suggested that, to conduct a canine sniff of a lawfully detained automobile, the government must have a reasonable, articulable suspicion pursuant to Article I, Section 6, of the 1970 Illinois Constitution.

It is well established that where a police officer stops a vehicle for a minor traffic violation, the officer may briefly detain the driver to request a driver’s license and make some initial inquiries.8 Additionally, "the police officer may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures."9 If no facts arise in these initial inquiries raising articulable suspicion of criminal activity, the traffic stop may go no further, and the individual involved should not be detained any longer than necessary to address the traffic offenses.10 However, where the officer’s suspicion of criminal activity is aroused during these initial inquires, further detention may be warranted.11

In both People v. Perez and People v. Easley, the Third District held that Article I, Section 6 of the Illinois Constitution of 1970 requires officers to have reasonable articulable suspicion prior to further detaining a lawfully stopped vehicle to conduct a dog sniff.12 Both cases involved defendants whose vehicles were lawfully stopped for routine traffic violations. The arresting officers advised the drivers of the traffic violation and requested license and insurance documentation. Further , both officers determined that the licenses were valid and that there were no outstanding warrants. Moreover, the officers advised the drivers that only a "warning" ticket would be issued for the traffic violations.

Nevertheless, in both Easley and Perez, the arresting officers radioed for a canine unit to conduct a sniff of the vehicle. The Third District then reviewed the facts of each stop to determine whether the police officers had reasonable suspicion to justify the detention. In doing so the Court held that "we must consider the totality of the circumstances or the ‘whole picture’ in each case."13 Even where there may be an innocent explanation for each individual factor considered separately, the factors viewed in combination may constitute enough reasonable suspicion to warrant further detention.14

In Easley, the totality of the circumstances known to the officer were as follows: the officer observed a business card decorated with a marijuana leaf in the driver’s wallet; the driver appeared nervous and was perspiring; the criminal history check revealed that the driver had a previous conviction for a drug offense; the officer observed that the center ashtray, which had been open before he left to do a criminal history check, was closed when he returned; and both the driver and passenger told the officer that they were traveling to a festival to advocate the legalization of hemp. The Court held that these factors, viewed in totality, provided the officer with enough reasonable suspicion to warrant further detention pursuant to Terry. The Court then found that the permissible detention was of reasonable duration in that the canine unit responded to the scene within two minutes and the dog alerted to the defendant’s vehicle within two minutes of arrival. After the dog alerted, the officer had probable cause to search the vehicle.15

In Perez the arresting officer was a State Trooper assigned to truck enforcement who had worked as a trucker for 15 years before he joined the Illinois State Police. Though the Perez vehicle was stopped for a routine traffic violation, the officer believed, based on his experience, that the rear portion of defendant’s truck had been modified in some way. Further, he thought it was suspicious that the truck had a temporary registration sticker as well as license plates. Also, the defendant gave a patently implausible explanation for the trip he indicated he was taking to California. In addition, the officer received information that the passenger, Diaz, had a prior drug conviction. Based on these observations the officer radioed for the canine unit. The Perez court reviewed all of the factors cited by the officer and held that, under the totality of the circumstances, the officer had reasonable articulable suspicion to detain the defendant for a few additional minutes to allow the drug-sniffing dog to arrive.16 The court further held that the defendants were not detained an unreasonable length of time when Perez consented to the search of the vehicle four minutes later.

In People v. Ortiz, the Fourth District has similarly held that Article I, Section 6 of the Illinois Constitution of 1970 requires reasonable articulable suspicion that contraband is present prior to detaining an automobile for purposes of a canine sniff search.17 The Ortiz court reviewed the history of dog sniffs beginning with Place and including a factual comparison with Easley and Perez. In Ortiz the defendant was lawfully stopped for speeding. Prior to the stop the officer noted that the Chevy pickup truck had mattresses on top of a tarp in the bed of the pickup, and that it had a "D" license plate rather than the usual "B" plate. Upon calling in the plate, the officer learned that the vehicle was registered to a commercial business. Based on the officer’s extensive experience as a drug interdiction instructor and member of the District 9 Drug Interdiction Team, he testified that "it was a vehicle that would be interesting to stop and see if he could find out more information on it."18

The Ortiz officer approached the driver, engaged him in conversation, and told him that a warning ticket would be issued on the speeding violation. He then obtained the defendant’s driver’s license and insurance information and also the license of the passenger and returned to the squad car. The initial approach to defendant’s vehicle took about three minutes.

The officer ran a criminal history check on the defendant and the passenger. The inquiries lasted three to five minutes and revealed that the defendant had a valid driver’s license and no outstanding warrants. The passenger had a criminal history consisting of arrests for forgery and possession of controlled substances. Upon learning this criminal history, the officer radioed for a canine unit. The canine unit arrived approximately ten minutes after the call while the officer was still completing his "paperwork." The officer then issued defendant a warning and returned his license. He then asked defendant if he would answer some questions before he left and the defendant responded, "sure." The officer then explained his suspicions regarding drug activity to the defendant and requested consent to search the truck. The defendant refused consent and the officer then ordered the canine sniff, which resulted in a positive alert to the rear of the truck.19

The Ortiz court held that the traffic stop was complete when the officer issued the defendant a warning and returned his license. As to whether the defendant was "seized" by the officer’s delay, the court held that a seizure occurs only "when, by means of physical force or a show of authority, that person’s freedom of movement is restrained."20 The court will look at the totality of the circumstances surrounding the incident to determine if "a reasonable person would have believed that he was not free to leave."21 The standard to determine whether a seizure occurred, therefore, is an objective one.22

The court concluded that Ortiz was in fact seized, and that the detention to allow time for the canine unit to arrive and conduct its sniff search was unreasonable. In reviewing all the factors cited by the officer, the court held that the facts used to support the detention and subsequent investigation were insufficient because they describe a large category of presumably innocent travelers, who would otherwise be subject to virtually random seizures.23

The Fifth District recently analyzed the issue of canine sniff searches of lawfully detained automobiles in People v. Cox, 318 Ill.App.3d 161 (2000), leave to appeal allowed, Docket No. 90759. The arresting officer made a routine traffic stop at 2:21 a.m. for no rear registration light. He spoke to the driver and made no unusual observations and did not smell marijuana in the car. Just after the stop, the officer radioed for the canine unit, which arrived 15 minutes later. The officer was still writing the traffic citation when the canine unit arrived and conducted a sniff search. The dog alerted to the defendant’s vehicle and a subsequent search revealed cannabis. The trial court granted the defendant’s motion to suppress and the State appealed.

Upon appeal, Justice Goldenhersh analyzed Cox’s Fourth Amendment claim in light of the U.S. Supreme Court’s decision in Place and acknowledged that a canine sniff is not a search for purposes of the Fourth Amendment.24 He then reviewed Article I, Section 6 of the Illinois Constitution of 1970 and concluded that while the Fourth Amendment sets the minimum rights a person shall receive against unreasonable government search and seizure, "the Illinois Constitution can give people more protection. The United States Supreme Court has ruled in Place that a canine sniff does not constitute a search under the Fourth Amendment. Place, 462 U.S. at 707. However, a canine sniff may still constitute a search under Section 6 of Article I of the 1970 Illinois Constitution."25

The court reviewed other Illinois Appellate decisions, especially Easley, which held that reasonable suspicion is necessary for a dog sniff and that the government action should be judged by a totality of the circumstances standard.26 The court noted that the Terry standard authorizing police officers to make limited intrusions on an individual’s personal security based on less than probable cause has been extended to almost every situation in which a law enforcement seeks to justify such on intrusion.27 The court then followed Easley’s lead and concluded that the officer lacked reasonable and articulable suspicion sufficient to call the canine unit. Thus the canine sniff was a violation of defendant’s privacy rights under Article I, Section 6 of the 1970 Illinois Constitution.28

Justice Goldenhersh then reviewed other jurisdictions which had clauses in their state constitution similar to Article I, Section 6, of the Illinois Constitution and determined that his ruling was consistent with decisions by the New Hampshire Supreme Court, State v. Pellicci, 133 N.H. 523, 580 A.2d 710 (1990); the New York Court of Appeals, People v. Dunn, 77 N.Y.2d 19, 564 N.E.2d 1054, (1990); the Pennsylvania Supreme Court, Pennsylvania v. Johnston, 515 Pa 454, 530 A.2d 74 (1987), and the Alaska Court of Appeals, Dooley v. State, 705 P.2d 1293 (1985).29 In each of these states the courts have held that, under their state constitutions, a canine sniff must be based upon some articulable facts that give rise to a reasonable suspicion that the object being sniffed contains contraband.


Given the Illinois Supreme Court’s traditional reluctance to depart from the lock-step doctrine in determining whether Article I, Section 6 of the Illinois Constitution should be interpreted more expansively than its Fourth Amendment analogue, it will be interesting to see how it deals with the rationale underlying the Cox decision. For the moment, the Third, Fourth and Fifth Appellate Districts have reviewed the issue and held that a police officer must have specific, articulable facts which give rise to a reasonable suspicion that contraband is present in an auto prior to its detention for purposes of a canine sniff search. Whether reasonable suspicion exists is determined by reviewing the totality of the circumstances, and even where there may be an innocent explanation for each individual factor considered separately, the factors viewed in combination may constitute enough reasonable suspicion to warrant further detention. What remains to be seen is whether the Illinois Supreme Court will agree.

1 Id. at 697-98, 706.

2 Id. at 707.

3 Id.

4 Id.

5 Id. at 707.

6 150 A.L.R. Fed 399 (1998).

7 Place 462 U.S. at 703.

8 People v. Koutsakis, 272 Ill.App.3d 159, 163 (1995).

9 Ohio v. Robinette, 519 U.S. 33 (1996), quoting Pennsylvania v. Mimars, 434 U.S. 106, Ill n.6 (1977).

10 Koutsakis at 163.

11 United States v. Finke, 85 F.3d 1275, 1280 (7th Cir. 1996); People v. Smith, 208 Ill.App.3d 44, 50 (1991).

12 See People v. Perez, 288 Ill.App.3d 1037, 1045 (1997); People v. Easley, 288 Ill.App.3d 487, 491 (1997).

13 Easely, 288 Ill.App.3d at 491 citing People v. Anaya, 279 Ill.App.3d 940, 945 – 46 (1996), citing United States v. Sokolow, 490 U.S. 1, 8 (1989).

14 Finke, 85 F.3d at 1280.

15 Id. at 776.

16 Id. at 1045.

17 People v. Ortiz, 317 Ill.App.3d 212 (2000).

18 Id. at 212.

19 Id. at 213.

20 People v. Brownlee, 816 Ill.2d 501, 517 (1999), quoting United States v. Mendenhall, 446 U.S. 544, 553 (1980).

21 Mendenhall, 446 U.S. at 554.

22 Florida v. Royer, 460 U.S. 491 501-02 (1983); see also People v. Besser, 273 Ill.App.3d 164, 167 (1995).

23 Ortiz 317 Ill.App.3d. at 219, citing Reid v. George, 448 U.S. 438, 441 (1980).

24 Cox , 318 Ill.App.3d. at 163.

25 Id. at 165.

26 Id. at 491-92.

27 Id. at 166.

28 Id. at 168.

29 Id. at 168.

Judge Mark W. Dwyer is in the Felony Division of the 18th Judicial Circuit Court of DuPage County, Illinois.

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