dog sniff of an inanimate object that law enforcement officers have lawfully seized is not a search within the meaning of the Fourth Amendment. The U.S. Supreme Court once again confirmed this principle in the Court's recent decision of Illinois v. Caballes.1 In Caballes the Court addressed the use of a narcotics-detection dog to sniff a car during the course of a traffic stop. In a 6-2 vote overturning the judgment of the Illinois Supreme Court, the U.S. Supreme Court stated that a "dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment."2
The Traffic Stop
In Caballes an Illinois state trooper stopped the defendant for speeding. After the trooper informed the dispatcher that he was making the stop, another trooper who heard the radio transmission immediately went to the location of the stop with his narcotics-detection dog. The trooper who made the traffic stop had not requested the assistance of the canine unit.
When the canine unit arrived at the scene, the defendant's car was parked on the shoulder of the highway. The defendant was sitting in the car of the trooper who had pulled him over for the traffic violation and that trooper was still writing him a warning ticket. The second trooper walked his dog around the defendant's car. The dog quickly alerted to the defendant's trunk. The troopers searched the trunk and found marijuana inside. The U.S. Supreme Court specifically noted that the "entire incident lasted less than 10 minutes."3
The trial court denied the defendant's motion to suppress and found the defendant guilty after a bench trial. The trial court sentenced the defendant to a $256,136 fine and 12 years' imprisonment. The appellate court affirmed. The Illinois Supreme Court reversed the judgments of the lower courts and concluded that the use of the dog in the case unjustifiably expanded the scope of the traffic stop without the requisite level of suspicion to suggest drug activity.
The Dog Sniff
In Caballes the U.S. Supreme Court agreed to review the case4 to address the narrow question of "whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop."5 Because the Court proceeded under the assumption that the trooper who walked the dog around the car had no information about the defendant other than that he had been stopped for speeding, the Court omitted any reference to any facts about the defendant that may have been suspicious.
The Court found that the trooper's stop of the defendant for speeding was a concededly lawful seizure based on probable cause. The Court stated, however, that it "is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution."6 The Court explained that a traffic stop could become unlawful if the seizure is justified only by the interest in issuing a warning ticket and it "is prolonged beyond the time reasonably required to complete that mission."7
The U.S. Supreme Court took issue with the Illinois Supreme Court's position that the canine sniff outside of the defendant's car made the initially lawful stop for the speeding violation an unlawful seizure. The Illinois Supreme Court had expressed the view that the use of the dog without any reasonable suspicion that the defendant's car contained narcotics converted the police-citizen encounter from the traffic stop into a drug investigation. In considering this issue, the U.S. Supreme Court stated,
In our view, conducting a dog sniff would not change the character of a traffic stop that is lawful at its inception and otherwise executed in a reasonable manner, unless the dog sniff itself infringed respondent's constitutionally protected interest in privacy. Our cases hold that it did not.8
The U.S. Supreme Court cited a number of its prior decisions in reaching the conclusion that the use of the dog in Caballes did not violate the Fourth Amendment. For example, the court cited the 1984 case of United States v. Jacobsen.9 The Jacobsen case involved a Drug Enforcement Administration (DEA) agent who opened a damaged package containing four plastic bags of white powder concealed in a tube initially opened by employees of an overnight delivery company. The agent removed a trace amount of the powder from one of the bags, conducted a field test, and determined the substance to be cocaine. The Court concluded, "A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy."10 Citing to Jacobsen, the Court in Caballes stated, "Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment."11
The Court also mentioned United States v. Place12 and Indianapolis v. Edmond,13 two prior U.S. Supreme Court cases that addressed narcotics-detection dog sniffs. The 1983 case United States v. Place involved the exposure of a temporarily detained piece of luggage to a narcotics-detection dog. In Place agents seized Place's bag and, 90 minutes later, submitted it to a canine sniff. The Court found the initial seizure of Place's luggage legitimate based on a reasonable suspicion that it contained contraband. However, the Court proceeded to find that the length of the detention of the bag, standing alone, constituted a Fourth Amendment violation in the absence of probable cause. After stating that a person has a privacy interest protected by the Fourth Amendment in the contents of luggage, the Court concluded that the exposure of the luggage to a canine sniff did not constitute a search. The Court stated:
A "canine sniff" by a well-trained narcotics-detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which the information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.14
In City of Indianapolis v. Edmond officers walked a narcotics-detection dog around cars stopped at a narcotics checkpoint established by police. Although the Court found that the checkpoints violated the Fourth Amendment, the Court stated the following with respect to the canine sniffs:
The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. Like the dog sniff in Place, a sniff by a dog that simply walks around a car is "much less intrusive than a typical search."15
Reaffirming this principle in Caballes, the Court stated that it had previously treated a narcotics-detection dog sniff as unique "because it 'discloses only the presence or absence of narcotics, a contraband item.'"16
In Caballes the Court found it significant that the second trooper walked the dog around the outside of the defendant's car while he was lawfully seized for speeding. The Court stated, "Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement."17 This is consistent with the previous positions taken by the Court in both Place and Edmond. The Court also stated that there was no evidence or findings in the record to support the defendant's argument that dog alert error rates call into question whether narcotics-detection canines only alert to contraband.
The Court ended its short opinion in Caballes with a discussion of its 2001decision in Kyllo v. United States.18 In Kyllo the Court ruled that "the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search."19 The Kyllo Court had been concerned about using a device to detect lawful activity taking place in a person's home. The Court distinguished the Caballes decision from Kyllo by specifically stating, "The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car."20
The holding in Caballes is a narrow one, but the case provides important guidance for law enforcement. Following the logic of the Caballes majority, the Court confirmed that there is no legitimate privacy interest in contraband. Because a dog sniff by a well-trained narcotics-detection dog is likely to disclose only the presence or absence of a contraband item, that sniff is not a Fourth Amendment search when done during a lawfully made and ongoing traffic stop. The Court has confirmed, once again, the principle that once the police lawfully seize an item, the use of a narcotics-detection dog to sniff the item without a search warrant or other applicable exception to the search warrant requirement does not transform the seizure into an unlawful search.
It also should be noted that the Court stated that an initially lawful seizure could be transformed into an unlawful seizure if "its manner of execution unreasonably infringes interests protected by the Constitution."21 If a narcotics-detection dog sniff were conducted during an unlawful detention, the Court implied that the use of the dog and any resulting discovery of contraband would be found to constitute the product of an unlawful seizure.22 Because of the narrowness of the Court's decision in Caballes, officers should continue to consult with their legal advisors regarding the use of narcotics-detection dogs during traffic stops and in other investigative situations and contexts.23 ■
1 ___ S. Ct. ___, 2005 WL 123826 (U.S.).
2 Id. at ___, 2005 WL 123826 at *3.
3 Id. at ___, 2005 WL 123826 at *1.
4 541 U.S. 972 (2004).
5 ___ S. Ct. ___, 2005 WL 123826 (U.S.).
6 Id. at ___, 2005 WL 123826, at *1.
7 Id. at ___, 2005 WL 123826, at *2.
9 466 U.S. 109 (1984).
10 Id. at 123.
11 ___ S. Ct. ___, 2005 WL 123826 (U.S.).
12 462 U.S. 696 (1983).
13 531 U.S. 32 (2000).
14 462 U.S. 696, 707 (1983).
15 531 U.S. 32, 40 (2000).
16 ___ S. Ct. ___, ___, 2005 WL 123826 at *2 (U.S.).
17 Id. at ___, 2005 WL 123826, at *3.
18 533 U.S. 27 (2001).
19 ___ S. Ct. ___, ___, 2005 WL 123826 at *3 (U.S.).
21 Id. at ___, 2005 WL 123826, at *2.
23 For additional information regarding these issues, see Jayme S. Walker, "Using Drug Detection Dogs-An Update," FBI Law Enforcement Bulletin (April 2001): 25.