Peoria Journal Star

November 11, 2004

Madigan defends drug-sniffing dogs before high court

Dori Meinert
Copley News Service

WASHINGTON -- Illinois Attorney General Lisa Madigan urged the U.S. Supreme Court on Wednesday to allow police to use drug-sniffing dogs without a specific reason during an otherwise legitimate traffic stop.

Making her first appearance before the nation's high court, Madigan asked the justices to overturn an Illinois Supreme Court ruling last year that said police must have a "reasonable suspicion" that a vehicle contains drugs before they use a dog during a traffic stop.

The court's decision, in this case out of LaSalle County, Ill., could have broad ramifications for police searches and individual privacy rights.

"This court has made clear on several occasions ... that a sniff by a drug-detection dog is not a search," Madigan said in opening her argument. She noted that a canine sniff is unobtrusive and only reveals the presence of drugs.

However, Chicago attorney Ralph Meczyk, who represents the motorist pulled over in the traffic stop that prompted the case, countered that the drug-sniff was a search and therefore violated his client's constitutional right to privacy under the 4th Amendment.

"What makes this stop so pernicious is that it takes place in front of the whole world," Meczyk said. "It is humiliating. It is accusatory. It is profoundly embarrassing."

The case began in 1998 when the Illinois State Police stopped Roy Caballes for driving 6 miles per hour over the 65 mph speed limit on I-80 in LaSalle County. While one officer was writing a warning ticket, another officer arrived with a drug-detection dog, which signaled an alert at the vehicle's trunk in less than a minute. Police searched the trunk and found a large quantity of marijuana. Caballes, who lives in Las Vegas, was convicted of drug trafficking and sentenced to 12 years in prison. He was fined $256,136, the street value of the drugs.

Caballes lost on appeal, but the appeals court ruling was reversed 4-3 by the Illinois Supreme Court last November. The majority opinion, written by Illinois Supreme Court justice Thomas Kilbride, concluded that police brought the dog in based on a "vague hunch" that Caballes might have been involved in wrongdoing.

The Justice Department and 30 states are siding with Illinois officials.

"Dogs are used all over the country with great success for law enforcement," said Assistant U. S. Attorney General Christopher Wray, who joined Madigan in defending the use of drug-sniffing dogs.

Supporting Caballes are the American Civil Liberties Union and the National Association of Defense Lawyers.

Madigan's appearance before the U.S. Supreme Court is rare for an Illinois attorney general. Her office couldn't say when the last time a state attorney general personally argued a case.

Nationally, it's not unusual for a state's attorney general to personally argue a case either to highlight its significance or to enjoy the prestige, said Mark Dobson, a law professor at the Nova Southeastern University Law Center in Ft. Lauderdale, Fla. Dobson reviewed the case for the American Bar Association.

During the hour-long oral argument, several justices questioned whether Madigan's position would open the door for more intrusive searches. As the justices typically do, Justice David Souter interrupted her after only a few sentences asking whether some middle ground on searches could be reached.

"What's to prevent the practice of taking dogs through every garage in the United States?" Souter asked. "We're opening a rather large vista for dog intrusion."

Justice Ruth Bader Ginsburg said, "Dogs can be frightening, humiliating."

Madigan responded that widespread use of dogs is unlikely to occur as law enforcement agencies have limited resources. Later, she told reporters that there are only 34 canine units in Illinois. In 35,000 traffic stops a month, drug-detection dogs are used in only about 125 cases.

She also told the justices that dogs are commonly used by law enforcement and that millions of people have dogs as pets.

Justice Antonin Scalia said drug-sniffing dogs have been around a long time and "the Republic seems to have survived."

Justice Sandra Day O'Connor asked Caballes' lawyer whether a "reasonable suspicion" standard would restrict anti-terrorism efforts.

"On Capitol Hill, we're worried about terrorist attacks. Can police decide they are going to sniff every car?" O'Connor asked.

Meczyk, representing Caballes, said he would see that as a public safety exception.

Chief Justice William Rehnquist, who is undergoing treatment for thyroid cancer, wasn't present for the arguments. But Justice John Paul Stevens said he would participate in the decision, relying on transcripts of the case.

A decision in Illinois vs. Caballes, 03-923, is expected early next year.

There were several light moments in the 50-minute argument.

Stevens drew a laugh from the crowded chamber when he asked if the Illinois State Police pull over every motorist on I-80 going six miles over the speed limit, saying he might have done just that.

"We're always happy to have you in Illinois," Madigan told Stevens, who formerly served on the Illinois-based 7th Circuit Court of Appeals.

Caballes' lawyer asked at one point "I guess you're saying I'm the underdog in this case?"

Outside the Supreme Court building, Madigan answered reporters' questions and posed for photos.

Madigan's limited courtroom experience was an issue raised by her opponent in her campaign for the state's top legal post in 2002. Asked after the arguments if she had been nervous, she said: "I was very well-prepared and it's the pinnacle for any lawyer to be able to argue before the Supreme Court."

Madigan was accompanied by LaSalle County State's Attorney Joe Hettel and Brian Towne, the prosecuting attorney in the case.

"When we first argued this case, I had no idea that we would be here today," Towne said. "I've handled a lot of these narcotics cases across Interstate 80 in my career and this was very similar to many that I've handled. So the fact that the court took this one pleases me and I'm hopeful that the court will rule in our favor."