Can police dogs be used at routine stops?

Drug dealers beware!

If you are planning to transport narcotics in your car, don't speed, don't change lanes without signaling, don't drive with a broken tail light, and don't even think about spitting that gum out the window.

Because if a police officer pulls you over, there is an increasing possibility that as you are being written up for that minor traffic infraction, another police officer with a drug-sniffing dog will show up and your $50 ticket could suddenly become 12 years in prison on a drug-trafficking conviction.

With an increasing number of police departments nationwide deploying narcotics-detecting dogs as an adjunct to traffic enforcement, many civil libertarians are complaining that Fourth Amendment privacy protections are, quite literally, going to the dogs.

Today, the issue arrives at the US Supreme Court where the justices must decide whether the use of a drug-detecting dog in conjunction with a minor traffic stop amounts to an unreasonable search or seizure.

"While dog sniffs are not physically invasive, they do intrude on reasonable privacy interests," says Ralph Meczyk, a Chicago lawyer, in his brief to the court. "Using a drug dog during an otherwise routine stop can be intimidating, accusatory, and humiliating."

Mr. Meczyk's client has personal experience on that score. On a November evening in 1998, Roy Caballes was pulled over by an Illinois State Police trooper for driving 71 m.p.h. in a 65 m.p.h. zone on Interstate 80. As the trooper checked Mr. Caballes's license and registration, another trooper arrived on the scene with a drug dog.

The first trooper informed Caballes that he was only issuing a warning for speeding. But before he could finish writing the warning summons, the drug dog alerted to the presence of narcotics in Caballes's trunk. The trooper then searched the trunk and found marijuana.

Caballes, who had two prior arrests for marijuana distribution, was found guilty of marijuana trafficking. He was sentenced to 12 years in prison and fined the street-market value of the seized drugs - $256,136.

His conviction was upheld on appeal, but the Illinois Supreme Court reversed by a 4-to-3 vote. The majority justices ruled that although the trooper was justified in making the initial traffic stop for speeding, it was unreasonable for the trooper to authorize the drug-dog sniff because he had no basis to suspect Caballes had drugs in his car.

Illinois Solicitor General Gary Feinerman disagrees with the state high court's approach. He says canine sniffs are not the equivalent of Fourth Amendment searches since all they involve is walking a dog around the outside of a car.

"Police officers need no individualized suspicion that illegal drugs are present to justify conducting an external canine sniff of a vehicle at a lawful traffic stop," Mr. Feinerman says in his brief to the court.

What the justices must decide is whether a valid road stop is all that is necessary to justify a canine drug sniff.

The American Civil Liberties Union warns in a friend of the court brief that the case could become the thin edge of a wedge leading to routine use of increasingly intrusive techniques such as DNA testing and advanced imaging technologies.

Others say such concerns are overblown. Narcotics dogs are just a law- enforcement tool, no more intrusive to privacy rights than a patrolman's flashlight.

"Is it against the law to use a flashlight at night to look into a car to see if someone has a weapon on the front seat?" asks Mark Rispoli, legal counsel for the California Narcotic Canine Association. "That is all the dog is, it is just a tool."

Mr. Rispoli, who trains drug dogs and their handlers, says the Illinois case is a textbook example of the proper way to combine a valid traffic stop with effective use of a drug-dog sniff.

It took the trooper approximately 15 minutes to conduct the traffic stop and write the warning summons. The drug sniff was conducted within that same time period, with no additional delay to the motorist, according to court briefs. Rispoli says the traffic stop is not converted into a drug investigation until after the drug dog alerts to the presence of narcotics. It is the alert from the drug dog that provides the probable cause necessary to then conduct a narcotics investigation by searching the vehicle, he says.

In contrast, the Illinois Supreme Court says that the arrival on the scene of the canine drug dog improperly broadens the scope of the investigation from a traffic violation into a drug case. The Illinois court said that the trooper had no basis to suspect there were drugs in the car, and that a search initiated on "nothing more than a vague hunch" could not satisfy the probable cause requirement necessary to conduct a search that is reasonable under Fourth Amendment requirements.

A decision in the case, Illinois v. Caballes, is expected by next June.