I’ve long thought that Illinois v. Caballes was one of the worst of a series of Constitutionally bad 4th Amendment decisions by the Supreme Court.
In a nutshell, the Supremes, led by Justice Stevens, ruled that, even absent any other suspicion, a drug dog alerting on a car was sufficient cause to justify a full search. In other words, the total decision as to whether there was sufficient reason for a search was to be determined by a dog anxious to please his or her law enforcement master.
The case was brought back to mind this week, when I found, via CrimProf Blog, an analysis of Stevens’ Caballes decision, written in 2006, but just recently posted on SSRN. It was written by James B. Johnston of Seton Hall University and published in the Quinnipiac Law Review. The abstract:
When a drug dealer delivers illegal narcotics to the American market place, he frequently uses our nation’s roadways. In an opinion authored by Justice John Paul Stevens and captioned Illinois v. Caballes, the U.S. Supreme Court held that a drug dealer does not have a reasonable expectation of privacy in delivering illegal drugs that is detected by a drug sniffing dog from the drug dealer’s car. The article argues that we as a society have a right and an obligation to protect ourselves from drug abuse and drug traffickers. Justice Stevens’ opinion provides a brilliant examination of judiciap [sic] precedent coupled with common sense. Caballes provides a balanced approach by providing law enforcement with a case that allows our police and prosecutors to fairly and effectively bring drug traffickers to justice.
My first thought was this was a simple and badly written review written by a high school student (or at least a beginning law school student throwing it together last minute for a class). That’s partly due to the horrid structure of the abstract. The second sentence is a grammatical disaster zone. Perhaps James should have read how to write an abstract (paying particular attention to #1, 3, and 4).
But it turns out that James Johnston is an Adjunct Professor at Seton Hall School of Law, a member of the bar since roughly 1996 and has been working with the Essex County Prosecutor’s Office (New Jersey) for 19 years where he is Lieutenant of Prosecutor’s Detectives.
My second thought was that looking at the sycophantic “analysis” (which, I must admit, was written a little bit better than the abstract) provided a good starting point for revisiting and pointing out the flaws in Stevens’ opinion.
Johnston highlights the lead point:
The Court found that there is simply no way for one trafficking illegal narcotics to enjoy a constitutionally protected privacy interest in the drugs that is “legitimate.” Society, the Court ruled, does not deem one’s privacy interest in transporting illegal drugs as an interest that is sound pursuant to the Constitution.
Here, Justice Stevens adds a fair amount of common sense to his opinion. It is inherently illegal for one to possess or transport illegal narcotics. How then can one expect to enjoy a constitutionally protected, legitimate privacy interest in possessing something that the law says one cannot possess?
Regardless of whether Stevens was building off United States v. Jacobsen as Orin Kerr posits, or merely continuing with the decision in United States v. Place, his reasoning is nonsense as regards the purpose and meaning of Constitutional rights, and it certainly isn’t “common sense.”
Constitutional rights are not about protecting criminals or criminal activity, but rather protecting citizens from government over-reach. Stevens’ view that there’s no right lost because there’s no right to possess illegal narcotics is an illogical end-justifies-the-means approach.
What about me, as a law-abiding citizen, secure in my person and possessions as guaranteed by the 4th Amendment, with nothing illegal in my car. Should I not be free from unreasonable searches? If a dog alerts to my car, why should I be subject to a search? I haven’t given up my expectation of privacy.
What this decision does is encourage fishing expeditions. If a search based on a dog alert finds drugs, then the driver had no expectation of privacy. If nothing shows up, then oops, that’s how it goes.
Ah, but perhaps Stevens was basing the decision on the notion that a dog sniff is infallible. If so, then the fact that a dog had alerted meant for certain that there were drugs there, and there’s no expectation of privacy for criminal activity.
Let’s turn to Johnston again:
Today, there are literally thousands of dogs being used by police agencies for a variety of tasks, including homeland security initiatives, airport security, and other public safety issues.
The success of any canine drug detection strategy begins with the proper training and recruitment of prospective drug sniffing dogs. Canines can be trained to sniff and detect drugs in a matter of weeks. The successful canine candidate must be even-tempered and genial. When a drug sniffing dog detects illegal narcotics, she either bites or scratches the containers or she becomes docile, sits, and wags her tail. At the federal level, dogs have been trained to detect a variety of illegal drugs. Continuous training is a key element in a drug sniffing dog’s track record of success. For example, U.S. Customs requires its drug sniffing dogs to undergo several hours of practice per month to preserve their keen senses.
Notice what’s missing? What’s the success rate? Is it 100%? If not (and it definitely isn’t), how do you justify the infringement on the rights of those other people? In fact, the Caballes opinion also failed to address that key issue, falling back on the worthless standard of “well-trained.”
What does that mean?
Unfortunately, drug dog accuracy rates are far from an exact science (and are often not even tracked). One expert says that most drug dogs are accurate only 52% of the time (which is hardly better than a coin toss). Here’s an instance where drug dogs were 0 for 31. That’s atrocious. Even if you posit a high success rate for drug sniffing dogs, the results to the law abiding population can be devastating.
The one thing that can be said for sure is that Stevens’ notion (which Johnston supports) that Caballes only infringes on the non-existent right to possess contraband is not only false, but is completely lacking in common sense.
Johnston actually starts out his analysis with this bit about the dangers of drugs:
The United States holds the distinction of being the largest consumer of illegal narcotics in the world. Drug traffickers, based both domestically and abroad, generate huge revenues for their illicit enterprises through American sales of their products. By the very nature of their business, drug traffickers can be both violent yet resourceful in the way they operate their affairs. Many crimes that appear at first glance to be unrelated to drugs possess at least some link to the narcotics industry. [...]
High level drug dealers are often brutal individuals. Many have been responsible for murdering government officials, civilians, and fellow drug traffickers. Terrorist groups raise revenues for their operations by selling illegal narcotics. One plot implemented by al-Qaeda was the purchase and sale of weapons and ammunition in exchange for cash and illegal drugs. Violence and drug trafficking go hand in hand.
Additionally, health care costs for those who are addicted to drugs are enormous. The social cost to America as a whole is staggering. It is simply not in our country’s best interest to allow drug dealers to successfully market their product to the American public. Thus, our country’s attempt to bring drug dealers to justice is necessary to protect the American way of life.
This over-the-top description of the drug menace is actually a reflection of what often shows up in Supreme Court decisions. You’ll rarely hear it quite this offensively from the Supremes, but it’s there. And it’s usually a signal that they’re about to take away some of your freedom.
If it’s just a matter of interpreting the law, there’s no need to go into a justification involving the scourge of drugs. But in Fourth Amendment decisions, it’s all about placing or moving the line. It’s not about protecting the rights guaranteed in the Constitution, but rather deciding which portion of them should be kept by the people and which portion should be ceded to the government to pursue their desires. And so they inevitably talk about how bad drugs are and how that justifies the government’s interest in taking away another right.
Yet never in these discussions are the truly important questions discussed:
- What evidence is there that government prohibition activities actually solve the problems listed?
- Are there other approaches that would deal with the problems listed without the need to gut Constitutional rights?
- Do prohibition activities have other negative consequences to society?
If the Supreme Court really required the government to satisfactorily address these basic questions, rather than simply regurgitating drug war propaganda, the “drug war exception” to the Bill of Rights wouldn’t exist.
Johnston attempts to strike some balance in his analysis by showing that not everyone agreed with the majority opinion in Caballes.
Some civil libertarians have expressed apprehension over Caballes. It should be candidly acknowledged that some law enforcement agencies have, in the past, made significant, even indefensible blunders in investigating drug trafficking. The fact of the matter is that the missteps of the past should not stop the law enforcement profession from seeking fair and effective ways to apprehend those who use America’s roadways to benefit from the illegal drug trade. A counter-narcotics trafficking program that includes the proper use of drug sniffing dogs, pursuant to the Court’s ruling in Caballes, can represent a significant step forward in confiscating illegal drugs before they reach the American public.
Note that he fails to even mention what civil libertarians found objectionable, let alone addressing those objections. And what about the Supremes themselves? Johnston never mentions Justice Souter’s scathing dissent.
No, Johnston isn’t interested in analysis, but rather in fellating Justice Stevens for this extremely flawed opinion that fits in so well with James Johnston’s selfish interests.
Justice Stevens’ opinion is well written. It combines a brilliant examination of judicial precedent coupled with common sense. Caballes provides a balanced approach to the issue by assuring that the public is protected from unreasonable searches while at the same time providing law enforcement with the tools to fairly and effectively bring drug traffickers to justice.
Lastly, Caballes acknowledges one central point: the Fourth Amendment of the United States Constitution does more than just protect the public from unreasonable searches by law enforcement. When obeyed, it also allows the police to lawfully protect every man, woman, and child that calls America home, from the narcotics trafficking business. This, I argue, will be the long-term legacy of Justice Stevens’ sound application of Fourth Amendment jurisprudence in Illinois v. Caballes.
[Note to commenters. I'm sending a note to Mr. Johnston and offering him a chance to respond in comments or in a separate post, so please be reasonably civil.]