In January the United States Supreme Court issued a watershed decision affecting the freedom of an individual from unreasonable search and seizure. In Illinois v. Caballes1 the Court found that, during an otherwise lawful traffic stop in which no probable cause existed to suspect the presence of controlled substances, a drug-sniffing dog could be employed by the police. The Caballes decision not only directly overruled contrary opinions by the Illinois Supreme Court;2 it called into question important aspects of Illinois search and seizure jurisprudence in general. Thus, while the decision of the High Court clarified the law on a controversial issue, it also left search and seizure law in Illinois at a crossroads.
This article will discuss Fourth Amendment jurisprudence in Illinois, proceed to a review of the Caballes decision, and discuss how the latter will transform the former, potentially uprooting decades of carefully crafted principles. In conclusion the author will suggest means by which Illinois courts may yet limit the scope of Caballes to preserve the impact of their significant decisions in the arena of Fourth Amendment rights.
In 1998 Roy Caballes was traveling along Interstate 80 when he was stopped for driving six (6) miles per hour over the posted speed limit. When State Trooper Daniel Gillette contacted the dispatcher to report that stop, Trooper Craig Graham, a member of a specialized drug interdiction team, overheard the call and proceeded to the scene with a drug-sniffing dog. Trooper Gillette had not requested assistance.3
While Graham was en route Gillette instructed Caballes to reposition his vehicle on the shoulder of the highway. Due to the inclement weather Gillette also instructed Caballes to accompany him to the squad car. When Graham arrived at the scene he observed that Gillette had Caballes in his vehicle. While Gillette was writing a warning ticket and conducting a license and warrant check, Graham walked the dog around Caballes’ vehicle. In less than a minute the dog zeroed in on the trunk. Based on that behavior by the dog, Troopers Gillette and Graham searched the trunk, found a large quantity of marijuana, and placed Caballes under arrest. The process had taken less than ten (10) minutes.4
Illinois Proceedings: Trial and
Caballes was charged with drug trafficking; prior to trial his Counsel moved to suppress the drugs found in his trunk and quash his arrest. The Trial Court denied the motion, finding that the Troopers had not unnecessarily prolonged the traffic stop and that the alert signaled by the drug-sniffing dog accompanying Graham provided sufficient probable cause to conduct the search. Following a bench trial the Court found Caballes guilty, sentenced him to twelve (12) years in prison, and ordered him to pay a “street value” fine of Two Hundred Fifty-Six Thousand One Hundred Thirty-Six Dollars ($256,136).5 The Appellate Court affirmed the conviction,6 finding that the Troopers did not need a so-called “reasonable, articulable suspicion” to justify the use of a drug-sniffing dog.7
Illinois Proceedings: Supreme Court
People v. Caballes: Majority Opinion
In a decision authored by Justice Kilbride, the Illinois Supreme Court reversed both lower court judgments;8 the Court began by acknowledging that although the Fourth Amendment generally required searches and seizures to be supported by a warrant and probable cause, the United State Supreme Court had long ago carved out an exception in Terry v. Ohio.9 There the Court held that a person may be detained briefly if the officer reasonably believes that they have committed, are committing, or are about to commit a crime.10 Terry itself had not involved a traffic stop, but both the Illinois and United States Supreme Courts had previously analogized Terry principals to such routine stops.11 Accordingly the Illinois Supreme Court chose to employ the Terry inquiry to determine the overall reasonableness of the traffic stop at issue. This meant that the Court would make a decision based on “whether the officer’s action was justified at its inception” and whether it was “reasonably related in scope to the circumstances which justified the interference in the first place.”12 Because it was undisputed that the traffic stop in Caballes was properly initiated as the result of the Defendant’s violation of the posted speed limit, the Court focused its analysis on the second part of the Terry inquiry (i.e. the relationship between the dog sniff and the original reason for the stop).
After analyzing the facts the Illinois Supreme Court concluded that the prosecution had failed to justify employment of a drug-sniffing dog that the Troopers lacked “specific and articulable facts” supporting their suspicion as to the presence of drugs, and that as a result “the police [had] impermissibly broadened the scope of the traffic stop in this case into a drug investigation.”13 Based on this analysis the Court ruled that Terry had been violated and that the drug evidence against Caballes should have been suppressed.14
People v. Caballes: Dissent
Justice Thomas filed a vigorous dissent in which Justices Fitzgerald and Garman joined.15 Citing several United States Supreme Court decisions, the Dissent pointed out that a dog sniff did not constitute a “search” at all for Fourth Amendment purposes.16 As such, neither the Fourth Amendment, nor logically the Terry exception, applied to such a dog sniff and the police required neither probable cause nor reasonable suspicion to employ the technique. Moreover, because the Troopers had not impermissibly prolonged the traffic stop to allow for the dog sniff, no unconstitutional seizure had occurred. In sum, the Dissent found that none of Caballes’ constitutional rights were violated and that the drug evidence in question should have been admissible at his trial.17
The United States Supreme Court Decision
Majority Opinion: Justice Stevens
In a relatively brief majority opinion authored by Justice Stevens, the United States Supreme Court reversed the decision of the Illinois Supreme Court.18 Of course the High Court was careful to note that the question on which it granted certiorari was a very narrow one; to wit, “Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.”19 Hence, for purposes of its analysis the Court assumed both that the Troopers had no information that would cause them to suspect drugs were present, and that the duration of the traffic stop was not prolonged to enable the use of the drug-sniffing dog.20
The Majority Opinion then discussed and ultimately disagreed with the holding of the Illinois Supreme Court, whose position revolved around the finding that in the absence of a reasonable suspicion as to narcotics the initially lawful traffic stop of Caballes became an unreasonable “seizure” when the Troopers introduced a drug-sniffing dog. On the contrary, the Majority found that “conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed [on Caballes’] constitutionally protected interest in privacy.”21 In other words, a dog sniff would not invalidate a lawful stop unless it amounted to the tail wagging the dog.a
Justice Stevens was also careful to note that; (1) conduct which does not compromise a legitimate privacy interest is not a search subject to the Fourth Amendment; and (2) any purported interest in the possession of contraband is per se not legitimate. For that very reason, went the Opinion, in United States v. Place22 the Court treated a sniff by a well-trained narcotics-detection dog as “sui generis;” it disclosed only “the presence or absence of narcotics, a contraband item.”23 The Opinion concluded that use of a drug-sniffing dog during an otherwise lawful traffic stop which “does not expose non-contraband items that otherwise would remain hidden from public view” does not implicate a “legitimate” privacy interest.24 Since the sniff had been performed on the exterior of Caballes’ vehicle while lawfully stopped, any intrusion on the Defendant’s expectation of privacy during the stop would fail to rise to the level of a constitutional violation. In sum, “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.”25
Dissenting Opinions: Justices Souter and Ginsburg.
Justices Souter and Ginsburg filed lengthy dissenting opinions.26 We examine their positions in turn.
Dissent: Justice Souter
Justice Souter advocated the complete abandonment of the rule that dog sniffs do not constitute a search. He also disagreed with the notion that a drug-sniffing dog discloses only the presence of narcotics, embracing instead the common-sense position that the “infallible dog…is a creature of fiction.”27 After reciting a number of opinions and studies describing significant error rates among such dogs, Justice Souter observed; “the evidence is clear that a dog that alerts hundreds of times will be wrong dozens of times.”28 From there he reasoned that once the rationale for treating drug-sniffing dogs as sui generis lost its bite, the Court could treat such sniffs as searches and subject them to scrutiny under the Fourth Amendment. By that logic, in Caballes’ case, because the Troopers admittedly lacked probable cause the drug evidence found in the Defendant’s trunk should have been suppressed.
Dissent: Justice Ginsburg
Justice Ginsburg’s dissent, joined by Justice Souter, focused on a Terry analysis of the overall traffic stop as a seizure — rather than zeroing in on the dog sniff as a search.29 Justice Ginsburg disagreed with the Majority’s belief that, so long as police do not extend the duration of a traffic stop, use of a drug-sniffing dog is acceptable. Justice Ginsburg also leaned on Terry’s requirement that the actions of an officer must be justified at their inception and reasonably related to the circumstances that justified interference in the first place. Because in this case there was no reason to suspect that Caballes was in possession of drugs, went the dissent, the Troopers had no justification to initiate a dog sniff. Moreover, Justice Ginsberg wrote, the Court’s prior decisions had indicated that the limitation on expanding the scope of a stop “is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted.”30 Thus, even if not considered a search, Justice Ginsburg opined that the intimidating, intrusive and embarrassing nature of a dog sniff unjustifiably broadens the scope of a traffic stop and renders such actions de facto beyond the pale.31
What Does It All Mean?
So, what is to be made of Caballes? Obviously the Illinois Supreme Court was overruled: if they do not extend the duration of a routine traffic stop, the Illinois police do not violate the Fourth Amendment when they use drug-sniffing dogs. However, it is the interesting way in which the respective Supreme Court decisions were crafted, as well as the potential impact of the eventual outcome on Illinois search and seizure law, that make Caballes worth an even closer look. This could very well mean that Caballes will give rise to more questions than answers, but as students of this shifting field of jurisprudence we are compelled to ask anyway.
Perhaps the most compelling starting point when analyzing the impact of Caballes is to compare the way in which the respective Majorities crafted their opinions. To begin with, in determining that the subject dog sniff unjustifiably broadened the scope of this particular traffic stop, the Illinois Supreme Court never mentioned or even indirectly dealt with the effect of Place or Edmonds, United States Supreme Court cases which held that a sniff is not tantamount to a search for Fourth Amendment purposes. Just as interesting however, in finding that such a sniff has no impact on a legitimate privacy interest; the United States Supreme Court makes no mention of the lessons of Terry, deftly distancing itself from its own historical stance on the issue. Whatever their motivation however, one thing is certain: the Majorities in both the Illinois and United States Supreme Courts left it to the Dissent to point out these seemingly gaping holes in their analyses, thereby leaving the question open for further study and debate.
Ultimately the United States Supreme Court decision calls into question the proper application of Terry to traffic stops in Illinois, whether or not such stops involve dog sniffs. And since both Supreme Courts had previously analogized traffic stops to Terry stops,32 the result would now be that, in addition to being justified at its inception, a traffic stop had to be reasonably related in scope to the circumstances that justified it in the first place. Prior to Caballes, the scope requirement under Terry included duration as well as manner.33 This was certainly the case in Illinois where, in People v. Gonzalez, the Illinois Supreme Court specifically determined that the idea of scope went beyond mere duration.34 However, in Caballes the United States Supreme Court appeared to limit the scope analysis to simple duration. As Justice Ginsburg wrote in her dissent, “[t]he Court rejects the Illinois Supreme Court’s judgment and, implicitly, the application of Terry to a traffic stop converted, by calling in a dog, to a drug search. The Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope … In my view, the Court diminishes the Fourth Amendment’s force by abandoning the second Terry inquiry [after making a determination as to duration].”35 In light of Caballes, it is unclear if Gonzalez and other Illinois decisions are correct in holding that Terry requires courts to look at the duration of a stop as well as the manner in which it is carried out.
Despite the significant and far reaching impact that Caballes may have on search and seizure law, it is also conceivable that Illinois courts will attempt to limit its effect in at least two (2) ways.
First, the United States Supreme Court assumed in its decision that the duration of the traffic stop at issue was not extended in any way in order to enable the use of the drug-sniffing dog. Illinois courts could easily distinguish future situations on their unique facts in order to escape the holding of the Caballes Court.
Second, Caballes dealt exclusively with the Fourth Amendment; but since the Illinois Constitution itself provides protections against unreasonable search and seizure, the Fourth Amendment to the United States Constitution is not the exclusive means of preserving the freedom from unreasonable search and seizure.36 Although historically reading protections in the State Constitution in lock-step with those in the United State Constitution,37 Illinois courts remain free to construe our Constitution as providing more protection than the Bill of Rights.38 In fact, as recently as 1996 the Illinois Supreme Court moved in just such a direction with respect to search and seizure law.39 Hence, while they have been reluctant to do so in the past, the Illinois Courts could now find that the use of drug-sniffing dogs during routine traffic stops violates the State Constitution. By that same token, they might also rule that under the Illinois Constitution a broader definition of “scope” must be applied when analyzing the reasonableness of a traffic stop; again, whether or not it involves a drug-sniffing dog.
The United States Supreme Court’s decision in Caballes answered a single, albeit important, question: we now know that the Fourth Amendment does not require a reasonable, articulable suspicion to justify using a drug-sniffing dog during an otherwise legitimate traffic stop. Whether Caballes will have an even greater impact on general Illinois search and seizure law remains to be seen. For the moment however, all we can do is keep our noses in the air, catch the scent of where we have been, and divine which way the wind will be blowing next: truly a dog-eat-dog task for dogged times.
a With apologies for this and all the other bad dog puns to follow. [Ed.].
1 Illinois v. Caballes, 125 S.Ct. 834 2005 WL 123826 (January 24, 2005).
2 People v. Caballes, 207 Ill. 2d 504, 802 N.E.2d 202 (2003).
3 Id. at 506-508, 802 N.E.2d at 203-205.
4 125 S.Ct. at 836; 2005 WL 123826 at *1.
6 People v. Caballes, 321 Ill. App. 3d 1063, 797 N.E.2d 250 (2001) (unpublished order under Supreme Court Rule 23).
8 207 Ill. 2d at 504, 802 N.E.2d at 205.
9 Terry v. Ohio, 392 U.S. 1 (1968).
11 207 Ill. 2d at 508, 802 N.E.2d at 204 (citing People v. Gonzalez, 184 Ill. 2d 402, 704 N.E.2d 375 (1998); See Michigan v. Long, 463 U.S. 1032 (1983); Pennsylvania v. Mimms, 434 U.S. 106 (1977)).
12 207 Ill.2d at 510, 802 N.E.2d at 204.
13 207 Ill. 2d at 510, 802 N.E.2d at 205.
15 207 Ill. 2d at 510-514, 802 N.E.2d at 205-207.
16 207 Ill.2d at 511-512, 802 N.E.2d at 206 (citing City of Indianapolis v. Edmond, 531 U.S. 32 (2000); See United States v. Place, 462 U.S. 696 (1983).
17 207 Ill.2d at 510-514, 802 N.E.2d at 205-207.
18 125 S.Ct. at 838, 2005 WL 123826 (Chief Justice Rehnquist took no part in the decision of this case).
19 125 S.Ct. at 837, 2005 WL 123826 at *1.
21 125 S.Ct. at 837, 2005 WL 123826 at *2.
22 United States v. Place, 462 U.S. 696.
23 Id. at 707.
24 125 S.Ct. at 838, 2005 WL 123826 at *3.
26 125 S.Ct. 838-847, 2005 WL 12826 at *4-11.
27 125 S.Ct. at 839, 2005 WL 12826. at *4.
28 125 S.Ct. at 843, 2005 WL 12826. at *7
29 125 S.Ct. at 843-847, 2005 WL 12826. at *7-11.
30 125 S.Ct. at 844, 2005 WL 12826. at *8 (emphasis added) (citing Hiibel v. Sixth Judicial Dist. Court of Nevada, Humbolt County, 124 S.Ct. 2451 (2004); United States v. Hensley, 469 U.S. 221 (1985); Florida v. Royer, 460 U.S. 491 (1983).
31 125 S.Ct. at 844, 2005 WL 123826 at *8.
32 See People v. Gonzalez, 184 Ill. 2d 402, 704 N.E.2d 375; Long, 463 U.S. 1032; and Mimms, 434 U.S. 106.
33 125 S.Ct. at 844, 2005 WL 123826 at *8 (Justice Ginsburg, dissenting).
34 See Gonzalez, 184 Ill. 2d 402.
35 125 S.Ct. at 844, 2005 WL 123826 at *8.
36 ILCS Const. Art. 1, § 6.
37 See People v. Tisler, 103 Ill. 2d 226, 469 N.E.2d 147 (1984).
38 People v. Mitchell, 165 Ill. 2d 211,217 650 N.E.2d 1014, 1017 (1995).
39 People v. Krueger, 175 Ill. 2d 60, 675 N.E.2d 604 (1996).
Robert Kalnitz is a Staff Attorney for the Illinois Appellate Court, Third District. Mr. Kalnitz graduated from the University of Illinois in 1999 and the Chicago-Kent College of Law in 2003.