The Fourth Amendment used to offer average citizens some assurance that police wouldn't search their property without evidence of criminal wrongdoing. But the U.S. Supreme Court has spent the last couple of decades hacking away at that doctrine to the point that very little remains.
Now the court is considering a case that could take away another shred of privacy. This one asks whether police can use drug-sniffing dogs indiscriminately.
In 1998, Roy Caballes was pulled over by an Illinois state trooper for speeding. He was driving 71 mph in a 65 mph zone. The trooper told Caballes he would be let off with a warning and called the police dispatcher to check his license's validity.
Then the trooper started asking Caballes questions about his destination and whether he had been arrested before. The trooper also asked to search Caballes' vehicle, a request Caballes refused.
Later, another trooper arrived, apparently of his own volition, with a drug-sniffing dog. The dog alerted to Caballes' car trunk. When it was opened, a load of marijuana was found. Caballes was arrested, convicted and sentenced to 12 years in prison and a $256,000 fine.
The Illinois Supreme Court set aside Caballes' conviction on the grounds that he was subject to an illegal search. In a 4-3 ruling, the court said that bringing a drug-sniffing dog into what had been a routine traffic stop expanded the exchange into a drug investigation. Because the trooper had only a "vague hunch" that Caballes might be a drug runner, the court concluded, there was no basis to employ a drug-sniffing dog.
The state of Illinois appealed to the U.S. Supreme Court, which heard the case this month. With the help of the Bush administration, the state argued that the use of canines to sniff into the interior of personal possessions does not constitute a search under the Fourth Amendment.
In the past, the high court has seemed to approve this view. In 1983, the court ruled that no warrant is needed for dog sniffs of passengers' luggage at airports, because they are nonintrusive. And in 2000, the court suggested the same holds true when a dog sniffs around the outside a car.
But during oral argument, Justice David Souter raised privacy concerns and worried about dogs "going through every municipal garage" to sniff out drugs. Justice Ruth Bader Ginsburg agreed, saying, "there is some association between the idea that I have a right to be let alone by the government and not having a large dog circle my car."
Still, the likelihood is that the majority will rule that the use of dog sniffs is not a search and can be used at will.
If so, every traffic stop would have the potential to become a drug investigation upon the whim of police. Members of minority communities who already complain they are targeted by law enforcement because of their skin color or ethnicity will be more likely to find themselves stopped, inconvenienced and having to prove their innocence.
Just three years ago, the Supreme Court said it was illegal for police, without a warrant, to use a device that can sense heat emanating through walls of a home to identify hydroponic marijuana-growing operations. This same reasoning should be applied to the odors that only dogs can smell, coming from locked car trunks. It is an invasion of privacy, because the process is intimidating and intrusive.
The Constitution guarantees each of us a realm of privacy, but the high court's crimped reading of the Fourth Amendment leaves the protection existing more on paper than anywhere else. The case should compel the court to reverse course.
