Regular readers of this site know my views on Caballes v. Illinois, the pathetically moronic decision authored by Justice Stevens in the U.S. Supreme Court.
Now it doesn’t take much evidence for police to justify a search of a car. But it does take more than a hunch.
Caballes, however, says that even with only a hunch, police can have a dog sniff around a car and if Rover alerts, now the search is justified. Stevens’ reasoning was that the dog was merely sniffing what was already there, and that you have no expectation of privacy when transporting illegal drugs. This, of course, has no logical basis unless you assume that dogs are 100% accurate â€” something we know is far from true.
Now the Illinois Supreme Court has taken this lunacy one step further.
It may be a little easier for police officers in Illinois to find drugs after the Illinois Supreme Court this week OKâ€™d drug sniff â€œset-upsâ€ in one of a handful of decisions.
So, here’s the deal. In this case, the police had no more than a hunch. They also had a dog, so with Caballes v. Illinois in place, they could have the dog sniff around the vehicle. But they went a step further.
They made the driver roll up all the windows, and with auxiliary power on, turn the fans up to high in the car. Then they had the dog sniff around the vehicle. The dog alerted based on the air being forced out of the vehicle.
The Illinois Supreme Court ruled, in a mind-bogglingly stupid opinion written by Justice Lloyd Karmeier, that such a “set-up” was just fine.
It’s a tortured piece of prose, subject to the same lack of reason as Stevens’ work. Just as Stevens tried to claim that the dog sniff wasn’t a search and so (even though on the basis of the sniff alone a search was made) it wasn’t a Fourth Amendment concern, so too Justice Karmeier tries to claim that since the directive to roll up the windows and turn on the fans isn’t by itself a search, the defendant has no Fourth Amendment right.
Justice Charles Freeman wrote a scathing and intelligent dissent, taking the majority to task for its “inappropriate analytical framework,” pointing out that both “search” and “seizure” must be analyzed in the Fourth Amendment, and that while a driver can certainly be required to produce their license and insurance in a traffic stop, going so far as to require the driver to force out of the vehicle is no longer a traffic stop, but is a seizure for the purpose of fishing for a search. That’s a clear Fourth Amendment violation.
I’d like to believe that the U.S. Supreme Court will eventually overrule this (although I have no reason to expect reason there either). Still, in the meantime, expect this set-up to be used a lot now in Illinois.