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The Caballes Decision: Part I How Far Did the Supreme Court Go?
In Illinois v. Caballes the Supreme Court considered whether the sniff of a drug dog was a search. The defendant in Caballes was stopped for a traffic violation. During the time it took to write the ticket, an officer directed his drug dog around the outside of the vehicle. The dog alerted to the trunk. When the trunk was opened, a cache of drugs was located. The Supreme Court held that the drug dog’s actions did not infringe upon the occupant’s right to privacy.
The court’s characterization of its holding is not without qualification: “the use of a well-trained narcotics-detection dog–one that “does not expose noncontraband items that otherwise would remain hidden from public view”...during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation.” (emphasis added)
The Caballes decision should not be read as permitting law enforcement to extend the period of detention in order to “bring in the dogs.” The court was careful to explain that the dog sniff was conducted during the time it took the officer to issue the traffic citation. Whether this will pose much limitation in practice is questionable. It is easy for officers to come up with reasons to extend detentions, and it is tricky for defense counsel to challenge those justifications. Defense counsel will have to be alert to cases where the police expand the scope of their inquiry from a mere traffic ticket to a narcotics investigation.
Another limitation of the Caballes decision is alluded-to in the language quoted above: the holding only applies to the “well-trained narcotics-detection dog.” Counsel handling dog sniff cases will need to put the dog on trial. Documentation of the dog’s training and performance history should be discovered or subpoenaed. One concern is that Caballes will encourage the widespread use of poorly trained, “hack” dogs. Are there minimum standards that a dog must achieve to qualify as a “well-trained” dog as required by Caballes? It will be up to the courts of appeal to answer this and other questions.
The dog’s abilities and, ipso facto, accuracy, also have bearing upon whether the dog’s alert constitutes probable cause to search a trunk, or reasonable suspicion to expand a traffic stop into a narcotics investigation. This issue was not raised in the Caballes case, the record containing no evidence whatsoever concerning the dog’s error rate. It would be incorrect to read Caballes as sanctioning the search of a car trunk upon a mere alert absent evidence imparting significance to the dog’s behavior.
Defense counsel should stress that the Caballes holding applies only to a dog sniffing the outside of a car. It should be argued that to permit a dog inside the vehicle, or to subject persons not within the confines of a vehicle to the intrusion of a dog nose would constitute a dramatic interference with privacy concerns.
Finally, the decision only applies where the dog sniff is preceded by “lawful” traffic stop. Thus, the first step of analysis for defense counsel is whether the officer had a sufficient basis to effect a traffic stop.
In Part II of my analysis of Caballes I will discuss the dissents written by Justices Souter and Ginsberg, and what I believe is the subtext to this and other recent fourth amendment decisions.