Roy Caballes could have had no way of knowing the impact that his story would have on American jurisprudence as he drove his car across the state of Illinois. After he was stopped for speeding on I-80, he was asked to sit in the patrolman’s vehicle while he was issued a citation. As he sat in the front seat, he was probably relieved this was only a traffic stop, not unlike thousands of others across the country.

Perhaps he was surprised when a second car arrived and an officer with a police dog emerged and approached his car. We can imagine his surprise turned to alarm when the dog sniffed his car and his trunk was opened without his consent. Thus begins the case of Illinois v. Caballes.1

PROCEDURAL HISTORY

Mr. Caballes was found guilty of a narcotics offense and sentenced to 12 years’ imprisonment and a $256,136 fine. He appealed the conviction on the basis that the officers had exceeded the scope of the traffic stop by using a drug dog to sniff his car.2 The Illinois Supreme Court reversed the conviction on the basis that the use of the drug dog “without any specific and articulable facts... unjustifiably enlarged the scope of a routine traffic stop into a drug investigation.”3 The U.S. Supreme Court granted certiorari to determine “Whether the Fourth Amendment requires reasonable and articulable suspicion to justify the use of a drug-detection dog to sniff a vehicle during a legitimate traffic stop.”4

SUPREME COURT HOLDING

In its ruling, the U.S. Supreme Court rendered a two-pronged holding. First, the court held there is no privacy interest in contraband.5 Second, the Court held that since the sniff of a well-trained police dog could only reveal the presence of contraband, it was not a search under the Fourth Amendment.6 The court began its analysis by making two wide-sweeping assumptions. First, the court made a distinction between hoping that an officer does not find contraband and a legitimate privacy interest.7 If a person can legally possess the item, there is a legitimate privacy interest. If the item cannot be lawfully possessed, there is no legitimate privacy interest. The second assumption by the court is a “canine sniff by a well-trained narcotics detection dog” is not a search because it only discloses the presence or absence of contraband, specifically drugs.8 With these two assumptions made, it is no surprise that the court later determined that no Fourth Amendment search had occurred and the evidence against Caballes should not be suppressed.

The court took great pains to argue that the facts of this case are distinguishable from the case of Kyllo v. United States.9 In Kyllo, the police used a thermal imaging device to detect the heat that was being given off of a house. The heat was then interpreted and made visible through the use of a thermal imager. The court maintains that the difference between the two cases is that the thermal imaging device in Kyllo was capable of revealing “intimate details of the home” but the canine sniff was only capable of revealing the presence of contraband.10

ADMISSIONS MADE IN ORAL ARGUMENTS

During oral argument phase of Caballes, the attorneys, as well as some of the justices who would later dissent, presented concerns about the far-reaching implications of what would later become the majority decision. During oral arguments, Justice Ginsburg forced the representative for the Illinois Attorney General’s Office to admit if the court accepted the reasoning offered by the state the police would be “free to parade up and down every street in the country with dogs sniffing car trunks.”11 Justice Ginsburg noted in her dissenting opinion that the majority decision “clears the way for suspicionless dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots.”12

Justice O’Connor also forced the state’s attorney to admit a suspicionless drug-dog sniff could also be used on a house to establish probable cause that contraband was present in the house. The state’s attorney maintained what is or is not a search has nothing to do with the place or thing that is being sniffed, rather the item of contraband that is being sought. It would therefore seem logical that a police officer with a drug dog could sniff the foundation of a house and use the results to establish probable cause for a search warrant.13 Finally, the petitioner summarized her argument by saying “. . . a sniff is not a search, and therefore requires no Fourth Amendment justification.”14

WHY THE COURT WENT WRONG?

When the decision of the court is reviewed by law professors and law students (and hopefully future courts), the question asked will center around why the court strayed. The discussion will undoubtedly mention how the court abandoned previous principles, such as those articulated in Kyllo v. United States. In Kyllo, the court heard argument concerning whether the use of a sense enhancing device — such as a thermal imager- used outside of the home to detect heat being freely emitted constituted a search under the Fourth Amendment. The court ultimately held such activities were unconstitutional searches for two reasons. First, the Kyllo court considered whether the technology employed would reveal information about the interior of the home that would not otherwise be available without actually entering a “constitutionally protected area.”15 When the court evaluated this prong, it was more concerned with what information might be learned then it was with what was actually learned through the use of the suspect technology.16 The court held that the mere potential to reveal information in which there is a reasonable expectation of privacy is enough to implicate the Fourth Amendment.17

Second, the government used a technology that was not in general public use.18 The concern here was, presumably, if the technology employed is not in common public use, the public might not know how to guard against its use and preserve their privacy interests. As part of its holding in Kyllo, the court incorporated the same logic applied in the case of Caroll v. United States.19 In Caroll, the court stated that “[t]he Fourth Amendment is to be construed in the light of what was deemed unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.”20 In other words, when a new technology which is used by the state to reveal the presence of contraband is tested to determine if the Fourth Amendment is implicated by its use, the evaluation must include the question of whether the framers would have considered the use of the technology to be a search.

The Caballes court had to circumvent the holdings of Kyllo in order to reach the conclusion the majority ultimately reached. In order to circumvent Kyllo, it was necessary to show that the technology used, specifically the canine, could not reveal information in which there was a legitimate privacy interest and the canine sniff would adequately preserve the citizen’s interest in privacy. The Caballes decision began with two faulty assumptions that ultimately guided the majority down the primrose path, and allows the court to conclude the sniff of a well-trained police dog can only reveal the presence of contraband, and therefore does not implicate the Fourth Amendment.21

The first faulty assumption the court makes is that a “well-trained police dog” is a reality. In his dissenting opinion, Justice Souter recognizes “[t]he infallible dog... is a creature of legal fiction.”22 In fact, even the state of Illinois in its attempt to sustain the accuracy of the police dog used in Caballes conceded that its drug detection dogs would return false positives between 12.5 and 60 percent of the time, depending on the length of the search.23 As Justice Souter points out, once it is realized that the “infallible dog” has a fallibility rate of up to 60 percent it quickly becomes apparent that a drug dog’s alert does not necessarily signal the presence of hidden contraband.24 A search that occurs pursuant to one of these false alerts is going to reveal information that is intended to be kept private and in which there is a legitimate expectation of privacy. This compromise of an otherwise legitimate expectation of privacy should be enough for the technology to trigger the ire of the Kyllo court, a court more fixated on what might be observed rather then what was actually observed.25

The second faulty assumption is the “well-trained police dog” only alerts to the presence of contraband.26 In order for this assumption to be true, the odor of contraband must always indicate its presence, a statement that is inherently problematic. Consider that the dog is only capable of using his sense of smell. Everyone has smelled something that is not actually present. For example, when leaving a smoky bar, it is possible to smell like cigarette smoke even though one does not smoke. Now consider an individual subject of the dog sniff who had been around someone who had smoked an illicit drug, wouldn’t the dog alert to the smell of the illicit drugs, even though the subject of the sniff had never possessed the drugs?

It is important to note that “the presence of contraband” and the “odor of contraband” can be two different things. Certainly, it is fair to concede that there are numerous reasons the odor of contraband may emanate from a car. It is possible that there is contraband in the car. It is also possible that a substance that is derived from a drug that could be contraband is present in the car. It is also possible that the driver has either knowingly or unknowingly been in the presence of someone that uses illicit drugs or that someone who has used those drugs has been a passenger in the car. It is therefore not accurate to say definitively that a dog alert is indicative only of the presence of contraband. Accordingly, Caballes cannot pass its own test and cannot help but offend Kyllo.

In the above examples, the drug sniff would reveal that the driver of the car either knowingly or unknowingly associates with people who use illegal drugs. Certainly, the court has held that associations that a person has are constitutionally protected.27 Under the logic advanced by the Kyllo court, the possibility of revealing a constitutionally protected association should be enough to require some suspicion prior to the “unleashing of the dogs.” In the same vein, it is important to note that there are several prescription drugs that contain an amphetamine as the active ingredient. Drug dogs are trained to smell amphetamines in order to detect methamphetamines. However, Ritalin, Dexedrine and Adderall are drugs commonly used to treat Attention Deficit Disorder/Attention Deficit Hyperactive Disorder which contain amphetamines as their active ingredient.28 Since the prescription medications are not contraband, their owner should enjoy a legitimate expectation of privacy. If legitimate privacy interests could be compromised by drug dog sniff, the Kyllo court would contend that an unconstitutional search had occurred.

In the above examples, legitimate privacy interests are compromised by an accurate canine alert — that is that the dog alerted as a result of actually detecting one of the odors that the dog has been trained to detect. Now suppose that a dog alerts falsely, as the state of Illinois admits they have been known to do up to 60 percent of the time.29 Following a canine alert, the police search the car. Imagine all of the things that can be found in the car to which there is a legitimate privacy interest. Additionally, police unaware a dog has alerted falsely will assume the dog alerted because of drugs and will operate assuming a valid alert. Normally the police operate under the assumption that the dog has alerted correctly. Are the officers going to just accept that the dog was wrong if it alerts and no drugs are found? Or is it more likely that by virtue of the fact that a canine has alerted the driver will become the subject of a drug investigation?

The second prong of the Kyllo evaluation addresses the use of canines as a technology. Like the thermal imager in Kyllo, a canine represents a crude technology that can be refined to provide the government with the ability to pry further into the lives of its citizens through the use an interpretation of odors. The question becomes whether the use of odors that have been captured and interpreted is intrusive enough to be considered offensive to the Fourth Amendment at the time it was written. This possible comparison was not lost on the U.S. Supreme Court during the oral arguments of stage of Caballes. The court heard arguments that made passing references to whether dogs may have been used to detect the odor of contraband in 1790. The court dismissed those arguments in a moment of levity regarding precisely what dogs were doing in 1790 in order to determine whether a dog sniff falls into the category of continually developing technology that was the subject in Kyllo.30 However, this moment of levity concerning what dogs may or may not have been doing in 1790 resulted in only nervous laughter intended to divert attention from the very real possibility that Kyllo and Caballes are at odds with each other.

If it is conceded that a dog sniff would have been regarded as a search by the framers of the Fourth Amendment, then it would fall into the realm of intrusions that the Fourth Amendment forbids. Conceptually, there is little difference between using a tool which allows an officer to “see” heat that is being freely radiated to the outside world and using a tool which allows an officer to be aware of an odor that is being freely emitted to the outside world. While the state in Kyllo tried to contend that such an enhancement was no different than the use of a microphone on the outside of a phone booth (which the court has approved in Katz, the court refused to apply such a mechanical interpretation to the Fourth Amendment.)31 The Kyllo court determined using a standard that would free the state to take full advantage of advancing technology to interpret radiation, odors or sounds that exit a constitutionally protected area and enter the “public domain” would unacceptably weaken the Fourth Amendment.32

In defense of the Caballes decision, some have advanced the notion that a dog sniff of a vehicle should receive less scrutiny because there is less of an expectation of privacy in a car on a public roadway. Certainly we have always believed, and the court has always held, that there is a greater expectation of privacy in the home, in an office or on the person than in a vehicle on a public roadway.33 Unfortunately time has proven that while people holding such a belief are correct in principle, they have not correctly applied the holding of Caballes. It is not for the sake of being repetitive, but for clarity’s sake that the ultimate premise of Caballes is restated. In the simplest terms, there is no privacy interest in contraband.34 If there is no privacy interest compromised when the government employs means that only reveal the presence of contraband, then the Fourth Amendment is not implicated, and there is no check on the government’s ability to seek that contraband. In this way, there is no distinction between contraband in a vehicle, contraband in the home or contraband hidden on the person.

A dog sniff has already been used as the basis of a search warrant for a house. Houston narcotics officers were involved in a 2000 investigation that began with the arrest of a local drug dealer who had revealed his supplier. After months of investigation, the officers were not able to gather any further information that could serve as a basis for a search warrant, nor were they able to confirm the allegations made by the local drug dealer. That is when officers approached the garage with a drug dog. The dog alerted, indicating that it detected the odor of contraband emanating from the garage. The officers used the drug dog’s alert as the basis for their search warrant.35 When the defendant’s appeal was heard, the Texas Appellate Court for the First District held that a “drug-dog sniff can do no more than reveal the presence or absence of contraband... and is thus not a ‘search’ for Fourth Amendment purposes.”36 If the dog sniff does not implicate the Fourth Amendment, the court’s holding clears the way for suspicionless dog sniffs of private houses.37 On April 4, 2005, the United States Supreme Court de-clined to grant certiorari and let this Texas holding stand — consistent as it is with Caballes.

Some may think that the Supreme Court would surely not extend this dog sniff to the person. The circuit courts that have heard argument in these matters have all resolved the issue based on the proximity of the dog. In Horton v. Goose Creek Independent School District, the Fifth Circuit Court of Appeals held that a dog sniff of a person was a search, and therefore implicated the Fourth Amendment because of the close proximity between the dog and the person.38 The circuit court noted that the “[i]ntentional close proximity sniffing of the person is offensive...” regardless of whether it is a human or dog that is doing the sniffing.39 How then can this holding be reconciled with Caballes?

The only possible explanation would be that the “sniffer” had entered some protected “zone of privacy.” However, this argument cannot stand the test of reasonable inquiry under Caballes. If the officer is where he has a right to be, or more importantly if the dog is where it has a right to be, how can a “zone of privacy” be offended? Further, in order to offend the Fourth Amendment, some legitimate privacy interest must have the potential to be compromised. If the dog will only alert to the contraband, as the court asserts, and there is no privacy interest in contraband, the Fourth Amendment cannot be offended by a dog sniff.40 In light of Caballes, when a dog that will only alert to the presence of contraband sniffs a person, what privacy interest is compromised? The only possible answer in the post-Caballes world is “none.”

WHERE HAS KYLLO GONE?

The greatest concern with the Caballes case, and the reason the ultimate holding is disturbing, is not that the state seems to have been given a broad power that can be used to search for drugs. Instead, the concern is with regard to the word contraband. When the court announced that there was no privacy interest in contraband, it is difficult not to remember that contraband is simply something that is not legal to possess. The problem with the statement, “there is no privacy interest in contraband,” is contraband is a word used to describe many things, depending on the time at which it is used. Muskets and musket balls would have been considered contraband in the hands of the Colonial soldiers who fought in the Revolutionary War. Hiding a run away slave may have been considered possession of contraband. Books would have been considered contraband in the hands of the newly freed slaves.

To say that there is no privacy interest in contraband sends Kyllo on its way to obsolescence. Should the government wish to be empowered to look for something or destroy a privacy interest in something, all that is necessary is to make the item sought contraband. Moreover, if there is no privacy interest in contraband, the state is free to use technology that is readily available and adapt it to indicate the presence of contraband. Any technology that could be so adapted could be immediately deployed, and so long as it was only capable of detecting only contraband, it would not be subject to Fourth Amendment scrutiny.

As a result of the holding in Caballes, our society is a little less free. When the Fourth Amendment was first written, it protected the privacy interests of the people to be “secure in their persons, houses, papers, and effects against unreasonable searches and seizure.”41 These protections were afforded without regard as to whether the “papers or effects” were contraband. It seems almost since the moment those words were written, the government has been trying to find ways to gather evidence of criminal wrongdoing by gradually chipping away at the protections guaranteed by the Fourth Amendment. The state has continued to find “gray areas” and the court has continued to carve out exceptions, until ultimately a case like Caballes completely eliminates any protection for contraband.

It is fortunate that future justices on future Supreme Courts have the ability to modify or overturn the Caballes decision. However, the fate of the protections afforded to the citizens are in the hands of the attorneys who will not accept attacks on personal liberty and continue to carefully choose cases which challenge holdings such as Caballes. It is the responsibility of attorneys to continue to insist that precious civil liberties have been wrongfully eroded. This end can be accomplished by using the facts of some future case to show Caballes is not consistent with Kyllo. In future cases, attorneys should consider filing suit to prevent police dogs from sniffing cars when their alerts are found to result in constitutionally protected information being revealed to the police. Arguments such as this can be particularly effective in cases where a drug dog’s sniff has allowed a search that yielded evidence of other crimes, but no drugs were located. In these instances, it should be argued that as a result of a false alert, the dog allowed a search that would have been otherwise constitutionally prohibited. Perhaps through repeated lessons in the ramifications of Caballes, attorneys can lead Kyllo back to the Supreme Court.

1. Illinois v. Caballes, 125 S. Ct. 834 (2005).

2. Id. at 836.

3. Id.. at 836-837.

4. Id.. at 837.

5. Id. at 837-838.

6. Id.

7. Id.

8. Id at 838.

9. Kyllo v. United States, 533 U.S. 27 (2001).

10. Id at 838.

11. Argument of Pet. at 5:9-14, Illinois v. Caballes, 125 S. Ct. 834 (2005).

12. Caballes, 125 S. Ct. at 845-846.

13. Argument of Pet. at 10:9-15, Illinois v. Caballes, 125 S. Ct. 834.

14. Id. at 17:5-7.

15. Kyllo, 533 U.S. at 34.

16. Id. at 38-39.

17. Id at 40.

18. Kyllo, 533 U.S. 40.

19. Caroll v. United States, 267 U.S. 132 (1925).

20. Caroll v. United States, 267 U.S. at 149.

21. Caballes, 125 S. Ct. at 837-838.

22. Id. at 839.

23. Id. at 840.

24. Id.

25. Kyllo, 533 U.S. at 38-39.

26. Caballes, 125 S. Ct. at 838.

27. Elfbrandt v. Russell, 384 U.S. 11, 18 (1966).

28. Crime and Misconduct Commission, The Illicit Market for ADHD Prescription Drugs in Queensland, <http://www.cmc.qld.gov.au/CRIMEBULLETIN4.html> (accessed April 30, 2005).

29. Caballes, 125 S. Ct. at 840.

30. Argument of Pet. at 20:7-18, Illinois v. Caballes, 125 S. Ct. 834.

31. Kyllo, 533 U.S. at 35

32. Id. at 36.

33. Cardwell v. Lewis, 417 U.S. 583, 590-591 (1974).

34. Caballes, 125 S. Ct. at 837.

35. Smith v. State, 2004 Tex.App. LEXIS 1121, 3-4 (Feb. 5, 2005).

36. Id. at 9-10.

37. Supreme Court won’t Hear Drug Dog Case, USA Today (April 4, 2005) <http://www.usatoday.com/news/washington/2005-04-04-drug-dogs_x.htm?csp=34>

38. Horton v. Goose Creek Independent School District, 690 F.2d 470, 479 (5th Cir. 1982).

39. Id.

40. Caballes, 125 S. Ct. at 837.

41. U.S. Const. Amend. IV.

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