Reaching the Limits of a Policy Argument Exercise by Robert Anderson Professor of the Practice University of Denver Sturm College of Law

Reaching the limits of a policy argument exercise teaching notes Exercise set up – initial discussion Exploring the keys to objective analysis Question: What will a judge base a decision on?

1. Right on the law – The strongest position is one based on binding authority where the client’s situation is plainly analogous or plainly distinguishable

2. Right on the policies or purposes of the law 3. Fair for the parties 4. Morally right

Fact gathering module Purpose: The purpose of this module is to give students the experience of conducting an initial fact-gathering conference with a client Attachment: Dog search initial client conference - client’s talking points Break class into teams of two, assigning one person in each team the role of attorney, and the other the role of client Distribute client’s talking points Instruct attorneys to gather facts from clients

Encourage two-part approach to questioning: first, ask open-ended questions, e.g., “what happened,” “what did the officer say,” asking specific questions only for clarification. Second, after client has conveyed the story, ask specific follow-up questions as needed.

Exploring policy module Purpose: In this module, students consider possible policy arguments before examining relevant caselaw. Discussing search and seizure rules

Fourth Amendment to the U.S. Constitution protects individuals from “unreasonable search and seizure.”

The Fourth Amendment applies to searches involving areas where individuals have a “reasonable expectation of privacy.”

Searches generally require a search warrant signed by a judge, or the consent of the person being searched, or under certain exceptional circumstances the existence of probable cause that the individual has committed a crime.

The Terry test – For a search incident to a traffic stop without a warrant to be “reasonable” under the Fourth Amendment, it must satisfy two conditions: 1) The initial stop must be justified 2) Subsequent action, such as a search, must be related to the reason for the initial

stop Questions for policy discussion

What would the policies or purposes inherent in these rules suggest about whether the dog search was legal?

If one considers what is generally fair for police officers and drivers in this situation, should this search be legal?

Putting laws and rules aside entirely, is it morally right to allow this search? Some potential policy and fairness arguments against the search

Policy – Traffic stops as pretext for drug search Policy – Opens door to using dogs for harassment/discrimination Policy – Slippery slope undermining warrant requirement Policy – Slippery slope regarding undermining reasonable expectation of privacy, would

lead to indiscriminate sweeps of parking lots and sidewalks Policy – Undermines consent doctrine Policy – Undermines Terry doctrine for investigative stop requiring 1) police action

justified at inception, and 2) police action reasonably related in scope to the circumstances that justified the interference in the first place

Fair for the parties – False positives, i.e., dogs make mistakes Fair for the parties – Elongated stops Fair for the parties – Embarrassment and inconvenience

Reaching the limits of a policy argument module Purpose: In this module, the students explore how the relevant caselaw takes policy into account. Then, the students see how policy arguments can become moot once binding authority has settled a legal question. Attachment: Illinois v. Caballes Attachment: U.S. v. Johnson oral argument audio (e-mail randerson@law.du.edu for audio file) Attachment: U.S. v. Johnson oral argument transcript Illinois v. Caballes discussion

USSC (Stevens) concludes that individuals have no cognizable privacy interest in contraband, that conduct that does not compromise any legitimate privacy interest is not a “search.”

USSC concludes that use of well-trained narcotics-detection dog that does not expose noncontraband items that would otherwise remain hidden from public view does not implicate legitimate privacy interests.

USSC concludes that where stop was not extended beyond time necessary to issue warning ticket and to conduct ordinary inquiries incident to such a stop, another officer’s arrival at scene and use of narcotics-detection dog to sniff around exterior of motorist’s vehicle did not rise to level of cognizable infringement on motorist’s 4th A. rights.

Dissent: Defendant was doing 71 in a 65. Dissent: Majority diminishes Fourth Amendment when it eviscerates purpose of second

part of Terry rule, that action must be reasonably related in scope to circumstances justifying the stop. Drug dog changes the scope of the stop: stop becomes broader, more adversarial, and longer.

Dissent: It shouldn’t matter for Fourth Amendment inquiry that action is well calculated to apprehend the guilty.

Dissent: Majority removes the requirement of cause to search, clearing the way for police abuse (e.g. drug sweeps of parked cars along sidewalks and in parking lots).

Discussion prior to U.S. v. Johnson oral argument audio

Johnson case involved a drug conviction following a dog search similar to the circumstances in Caballes.

The Caballes decision was announced while the Johnson case was being briefed to the 7th Circuit Court of Appeals, but prior to oral argument.

Discussion following U.S. v. Johnson oral argument

Should counsel have proceeded with argument following the announcement of the Caballes decision?

What other arguments could counsel have made at oral argument? Bearer of bad news module Purpose: In this module, students get experience with having to tell a client that the answer to the legal question is “no.” Attachment: Dog search second client conference – client talking points Return class to initial attorney-client teams Distribute client’s talking points Instruct attorneys to lead conference with client, explaining that Caballes decision forecloses the argument that dog search was unconstitutional

Encourage attorneys to convey the substance of the majority’s decision in lay terms, and to be emphatic in communicating that the constitutionality argument is dead, while also communicating that there may be other arguments to pursue. Instruct the attorneys to ask the client how the client wishes to proceed in light of this report.

Initial client conference – client talking points You have just completed a move from California to Denver. You drove your four-door car to Colorado. The car was almost completely filled with most of your belongings. About two hours short of Denver you were stopped by a highway trooper. You have contacted this attorney to discuss the stop, which you believe was illegal, and which has left you angry and discouraged. Facts to communicate in response to general questioning While driving east on I-70 near Silt, Colorado, you were pulled over by a Colorado state trooper. The police officer indicated that he had observed you speeding. Upon the police officer’s request, you handed over your license and registration, which the officer took back to his car to use in performing a background search. The officer returned to your car and informed you that he was going to issue a citation for speeding. By that time, you were aggravated that your arrival in Denver was being pushed back and that you were receiving a ticket, and you asked the officer how much longer issuing the ticket would take. The officer did not answer the question but instead began to question you: Had you ever been arrested before? Had you ever done drugs before? Did you currently have any drugs or other contraband in the car? You answered all of the officer's questions in the negative, growing more and more impatient with the elongated traffic stop. Then the officer asked if you would consent to a search of the vehicle, suggesting that you should not mind a quick search if you did not have contraband, or anything else to hide, in the vehicle. You did not think that the officer had any right or reason to do so, and declined to consent. The officer then informed you that a second officer and his drug-sniffing canine had just arrived to assist in the traffic stop. Still in the process of writing out the speeding citation, the original officer asked you to step out of the vehicle while the second officer walked the dog around the vehicle. The dog alerted the officers to the trunk area of the car, and the officers began searching the trunk. The trunk was full to bursting with your belongings, and the officers’ very thorough search took an hour to complete. The search revealed no drugs or other form of contraband. Hypothetical adapted from Amanda M. Basch, Sniffing Out the Problems: A Casenote Study of the Analysis and Effects of the Supreme Court's Decision in Illinois v. Caballes, 25 St. Louis U. Pub. L. Rev. 417, 417 (2006). Facts to communicate in response to specific questions

You were speeding. You were doing 81 miles per hour on a stretch of highway where

you had seen that the posted limit was 75 miles per hour. You were not carrying any drugs in the car when you were stopped, nor had you

consumed any drugs during your trip. It took about five minutes for the officer to do the initial background check with your

license. With respect to the questions the officer asked, you were truthful, except with respect to

having done drugs before. You did occasionally smoke marijuana in college. If you are asked why you have contacted the attorney, you are upset at what the

officer’s invasion of your privacy and blatant disregard for your wishes not to have your vehicle searched. After all, you had only been stopped for speeding and had already declined consent to search before the police brought in the dog.

125 S.Ct. 834 Supreme Court of the United States

ILLINOIS, Petitioner, v.

Roy I. CABALLES.

No. 03–923. | Argued Nov. 10, 2004. | Decided Jan. 24, 2005.

SynopsisBackground: Defendant was convicted,followingbench trial in theCircuitCourt, LaSalleCounty,H.ChrisRyan,Jr.,J.,ofcannabistrafficking, and he appealed from denial ofmotion to suppress evidence discoveredduring traffic stopofvehiclehewasdriving.TheIllinoisAppellateCourtaffirmed.Grantingpetition for leave to appeal, the IllinoisSupremeCourt,Kilbride,J.,207Ill.2d504,280Ill.Dec. 277, 802 N.E.2d 202, reversed.Certiorariwasgranted.

[Holding:]TheUnitedStatesSupremeCourt,JusticeStevens,heldthat,wherelawfultrafficstopwasnotextendedbeyondtimenecessaryto issue warning ticket and to conductordinary inquiries incident to such a stop,another officer’s arrival at scene while stopwasinprogressanduseofnarcotics‐detectiondog to sniff around exterior of motorist’svehicle did not rise to level of cognizableinfringement on motorist’s FourthAmendmentrights,suchaswouldhavetobesupported by some reasonable, articulablesuspicion.

Vacatedandremanded.JusticeSouterdissentedandfiledopinion.JusticeGinsburgdissentedand filedopinion,inwhichJusticeSouterjoined.Chief Justice Rehnquist took no part in thedecisionofthecase.

**835*405Syllabus**

Thesyllabusconstitutesnopartof theopinion of the Court but has beenpreparedby theReporterofDecisionsfor the convenience of the reader. SeeUnited States v. Detroit Timber &LumberCo.,200U.S.321,337,26S.Ct.282,50L.Ed.499.

After an Illinois state trooper stoppedrespondent for speeding and radioed in, asecondtrooper,overhearingthetransmission,drove to the scene with his narcotics‐detection dog and walked the dog around**836respondent’scarwhilethefirsttrooperwroterespondentawarningticket.Whenthedogalertedatrespondent’strunk,theofficerssearched the trunk, found marijuana, andarrested respondent. At respondent’s drugtrial,thecourtdeniedhismotiontosuppressthe seized evidence, holding, inter alia, thatthedog’salertingprovidedsufficientprobablecausetoconductthesearch.Respondentwasconvicted, but the Illinois Supreme Courtreversed,findingthatbecausetherewerenospecificandarticulable facts to suggestdrugactivity,useofthedogunjustifiablyenlarged

aroutinetrafficstopintoadruginvestigation.Held: A dog sniff conducted during aconcededlylawfultrafficstopthatrevealsnoinformation other than the location of asubstancethatnoindividualhasanyrighttopossess does not violate the FourthAmendment.Pp.837–838.207 Ill.2d 504, 280 Ill.Dec. 277, 802 N.E.2d202,vacatedandremanded.STEVENS, J., delivered the opinion of theCourt, in which O’CONNOR, SCALIA,KENNEDY,THOMAS,andBREYER, JJ., joined.SOUTER,J.,filedadissentingopinion,post,p.838.GINSBURG,J., filedadissentingopinion,in which SOUTER, J., joined, post, p. 843.REHNQUIST,C.J.,tooknopartinthedecisionofthecase.

AttorneysandLawFirms

ChristopherA.Wray,fortheUnitedStatesasamicus curiae, by special leave of the Court,supportingthepetitioner.

Lisa Madigan, Attorney General of Illinois,GaryFeinerman,CounselofRecord,SolicitorGeneral, Linda D. Woloshin, Mary Fleming,Assistant Attorneys General, Chicago, IL, forpetitioner.

RalphE.Meczyk,CounselofRecord,LawrenceH.Hyman,Chicago,IL,forrespondent.

Opinion

JusticeSTEVENSdeliveredtheopinionoftheCourt.

*406 Illinois State Trooper Daniel Gillettestopped respondent for speeding on aninterstatehighway.WhenGilletteradioedthepolicedispatchertoreportthestop,asecondtrooper, Craig Graham, a member of the

Illinois State Police Drug Interdiction Team,overheardthetransmissionandimmediatelyheaded for the scene with his narcotics‐detection dog. When they arrived,respondent’s carwason the shoulderof theroadandrespondentwasinGillette’svehicle.WhileGillettewasintheprocessofwritingawarning ticket, Graham walked his dogaround respondent’s car. The dog alerted atthe trunk. Based on that alert, the officerssearched the trunk, found marijuana, andarrested respondent. The entire incidentlastedlessthan10minutes.*407Respondentwasconvictedofanarcoticsoffense and sentenced to 12 years’imprisonmentanda$256,136 fine.The trialjudge denied his motion to suppress theseized evidence and to quash his arrest. Heheld that the officers had not unnecessarilyprolongedthestopandthatthedogalertwassufficientlyreliabletoprovideprobablecausetoconductthesearch.AlthoughtheAppellateCourt affirmed, the Illinois Supreme Courtreversed,concludingthatbecausethecaninesniff was performed without any “ ‘specificandarticulablefacts’”tosuggestdrugactivity,the use of the dog “unjustifiably **837enlarg[ed] thescopeofa routine traffic stopintoadruginvestigation.”207Ill.2d504,510,280Ill.Dec.277,802N.E.2d202,205(2003).Thequestiononwhichwegrantedcertiorari,541U.S.972,124S.Ct.1875,158L.Ed.2d466(2004), is narrow: “Whether the FourthAmendment requires reasonable, articulablesuspiciontojustifyusingadrug‐detectiondogto sniff a vehicle during a legitimate trafficstop.”Pet.forCert.i.Thus,weproceedontheassumption that the officer conducting thedog sniff had no information aboutrespondentexceptthathehadbeenstoppedfor speeding; accordingly, we have omittedanyreferenceto factsaboutrespondentthatmighthavetriggeredamodicumofsuspicion.

[1] [2] Here, the initial seizure of respondentwhen he was stopped on the highway wasbasedonprobablecauseandwasconcededlylawful. It isnevertheless clear that a seizurethat is lawful at its inception canviolate theFourthAmendmentifitsmannerofexecutionunreasonablyinfringesinterestsprotectedbytheConstitution.UnitedStatesv.Jacobsen,466U.S. 109, 124, 104 S.Ct. 1652, 80 L.Ed.2d 85(1984).Aseizurethatisjustifiedsolelybytheinterest in issuing a warning ticket to thedrivercanbecomeunlawfulifitisprolongedbeyond the time reasonably required tocomplete that mission. In an earlier caseinvolvingadogsniffthatoccurredduringanunreasonably prolonged traffic stop, theIllinoisSupremeCourtheldthatuseofthedogand the subsequent discovery *408 ofcontraband were the product of anunconstitutional seizure. People v. Cox, 202Ill.2d 462, 270 Ill.Dec. 81, 782 N.E.2d 275(2002).Wemayassumethatasimilarresultwouldbewarrantedinthiscaseifthedogsniffhad been conducted while respondent wasbeingunlawfullydetained.In the state‐court proceedings, however, thejudgescarefullyreviewedthedetailsofOfficerGillette’sconversationswithrespondentandtheprecisetimingofhisradiotransmissionstothedispatchertodeterminewhetherhehadimproperlyextendedthedurationofthestoptoenablethedogsnifftooccur.Wehavenotrecountedthosedetailsbecauseweacceptthestate court’s conclusion that the duration ofthestopinthiscasewasentirelyjustifiedbythetrafficoffenseandtheordinary inquiriesincidenttosuchastop.Despite this conclusion, the Illinois SupremeCourtheldthattheinitiallylawfultrafficstopbecameanunlawfulseizuresolelyasaresultof the canine sniff that occurred outsiderespondent’s stopped car. That is, the courtcharacterizedthedogsniffasthecauseratherthan the consequence of a constitutional

violation. In its view, the use of the dogconvertedthecitizen‐policeencounterfromalawful traffic stop into a drug investigation,and because the shift in purpose was notsupported by any reasonable suspicion thatrespondent possessed narcotics, it wasunlawful. Inourview,conductingadogsniffwould not change the character of a trafficstop that is lawful at its inception andotherwise executed in a reasonablemanner,unless the dog sniff itself infringedrespondent’s constitutionally protectedinterestinprivacy.Ourcasesholdthatitdidnot.[3] [4] Official conduct that does not“compromise any legitimate interest inprivacy”isnotasearchsubjecttotheFourthAmendment. Jacobsen, 466 U.S., at 123, 104S.Ct.1652.Wehaveheldthatanyinterest inpossessing contraband cannot be deemed“legitimate,”andthus,governmentalconductthatonlyrevealsthepossessionofcontraband“compromisesnolegitimateprivacyinterest.”Ibid. This is because the expectation *409“that certain facts will not come to theattentionoftheauthorities”isnotthesameasan interest **838 in “privacy that society ispreparedtoconsiderreasonable.”Id.,at122,104 S.Ct. 1652 (punctuation omitted). InUnitedStatesv.Place,462U.S.696,103S.Ct.2637, 77 L.Ed.2d 110 (1983), we treated acanine sniff by a well‐trained narcotics‐detection dog as “sui generis ” because it“discloses only the presence or absence ofnarcotics,acontrabanditem.”Id.,at707,103S.Ct. 2637; see also Indianapolis v. Edmond,531U.S.32,40,121S.Ct.447,148L.Ed.2d333(2000). Respondent likewise concedes that“drug sniffs are designed, and if properlyconductedaregenerallylikely,torevealonlythe presence of contraband.” Brief forRespondent17.Although respondentarguesthattheerrorrates,particularlytheexistenceof false positives, call into question thepremisethatdrug‐detectiondogsalertonlyto

contraband, therecordcontainsnoevidenceor findings that support his argument.Moreover, respondent does not suggest thatanerroneousalert,inandofitself,revealsanylegitimate private information, and, in thiscase, the trial judge found that the dog sniffwassufficientlyreliabletoestablishprobablecause to conduct a full‐blown search of thetrunk.[5] [6] Accordingly, the use of a well‐trainednarcotics‐detection dog—one that “does notexpose noncontraband items that otherwisewould remain hidden from public view,”Place,462U.S.,at707,103S.Ct.2637—duringa lawful traffic stop, generally does notimplicate legitimateprivacy interests. In thiscase, the dog sniff was performed on theexterior of respondent’s car while he waslawfully seized for a traffic violation. Anyintrusion on respondent’s privacyexpectations does not rise to the level of aconstitutionallycognizableinfringement.[7]Thisconclusionisentirelyconsistentwithourrecentdecisionthattheuseofathermal‐imaging device to detect the growth ofmarijuanainahomeconstitutedanunlawfulsearch.Kyllov.UnitedStates,533U.S.27,121S.Ct.2038,150L.Ed.2d94(2001).Critical tothatdecisionwasthefactthatthedevicewascapable of detecting lawful activity—in thatcase,intimatedetailsina*410home,suchas“atwhathoureachnighttheladyofthehousetakesherdailysaunaandbath.”Id.,at38,121S.Ct. 2038. The legitimate expectation thatinformation about perfectly lawful activitywill remain private is categoricallydistinguishable from respondent’s hopes orexpectations concerning the nondetection ofcontrabandinthetrunkofhiscar.Adogsniffconductedduringaconcededly lawful trafficstop that reveals no information other thanthelocationofasubstancethatnoindividualhasanyrighttopossessdoesnotviolatetheFourthAmendment.

ThejudgmentoftheIllinoisSupremeCourtisvacated,andthecaseisremandedforfurtherproceedings not inconsistent with thisopinion.Itissoordered.THE CHIEF JUSTICE took no part in thedecisionofthiscase.

JusticeSOUTER,dissenting.I would hold that using the dog for thepurposes of determining the presence ofmarijuana in the car’s trunk was a searchunauthorized as an incident of the speedingstop and unjustified on any other ground. IwouldaccordinglyaffirmthejudgmentoftheSupreme Court of Illinois, and I respectfullydissent.InUnitedStatesv.Place,462U.S.696,103S.Ct.2637,77L.Ed.2d110(1983),wecategorizedthe sniff of the narcotics‐seekingdog as “suigeneris” under the Fourth Amendment andhelditwasnotasearch.Id.,at707,103S.Ct.2637. The classification rests not only uponthelimitednature**839oftheintrusion,buton a further premise that experience hasshown to be untenable, the assumption thattrainedsniffingdogsdonoterr.Whatwehavelearned about the fallibility of dogs in theyearssincePlacewasdecidedwoulditselfbereason to call for reconsidering Place’sdecisionagainsttreatingtheintentionaluseofatraineddogasasearch.Theportentofthisvery case, however, adds insistence *411 tothe call, for an uncritical adherence toPlacewould render the Fourth Amendmentindifferent to suspicionless andindiscriminate sweeps of cars in parkinggarages and pedestrians on sidewalks; if asniff is not preceded by a seizure subject toFourthAmendmentnotice, itescapesFourth

Amendment review entirely unless it istreated as a search.We should not wait forthese developments to occur beforerethinkingPlace’sanalysis,whichinvitessuchuntowardconsequences.11

I also join JusticeGINSBURG’s dissent,post, p. 843. Without directlyreexamining the soundness of theCourt’s analysis of government dogsniffs in Place, she demonstrates thatinvestigation intoamatterbeyondthesubjectof the traffic stophereoffendstheruleinTerryv.Ohio,392U.S.1,88S.Ct. 1868,20L.Ed.2d889 (1968), theanalysisI,too,adopt.

At the heart both of Place and the Court’sopiniontodayisthepropositionthatsniffsbya trained dog are sui generis because areactionbythedogingoingalertisaresponseto nothing but the presence of contraband.2See ibid. (“[T]he sniff discloses only thepresence or absence of narcotics, acontraband item”); ante, at 838 (assumingthat“acaninesniffbyawell‐trainednarcotics‐detectiondog”willonlyreveal“‘thepresenceorabsenceofnarcotics,acontrabanditem’”(quotingPlace,supra,at707,103S.Ct.2637)).Hence, the argument goes, because the sniffcanonlyrevealthepresenceofitemsdevoidofanylegaluse,thesniff“doesnotimplicatelegitimateprivacy interests”and isnot tobetreatedasasearch.Ante,at838.2

Another proffered justification for suigeneris status is that a dog sniff is aparticularly nonintrusive procedure.UnitedStatesv.Place,462U.S.696,707,103S.Ct.2637,77L.Ed.2d110(1983).Iagree with Justice GINSBURG that theintroduction of a dog to a traffic stop(let alone an encounterwith someone

walkingdownthestreet)caninfactbequiteintrusive.Post,at845.

The infallible dog, however, is a creature oflegal fiction. Although the Supreme Court ofIllinoisdidnotgetintothesniffingaveragesofdrugdogs,theirsupposedinfallibilityisbeliedby judicial opinions describing well‐trainedanimals sniffing and alerting with less thanperfect accuracy, whether *412 owing toerrorsbytheirhandlers,thelimitationsofthedogs themselves, or even the pervasivecontamination of currency by cocaine. See,e.g.,UnitedStatesv.Kennedy,131F.3d1371,1378(C.A.101997)(describingadogthathada 71% accuracy rate); United States v.Scarborough,128F.3d1373,1378,n.3(C.A.101997) (describing a dog that erroneouslyalerted4timesoutof19whileworkingforthepostal service and 8% of the time over itsentire career);United States v. Limares, 269F.3d 794, 797 (C.A.7 2001) (accepting asreliable a dog that gave false positivesbetween7%and38%of the time);Laimev.State,347Ark.142,159,60S.W.3d464,476(2001)(speakingofadogthatmadebetween10 and 50 errors); United States v.$242,484.00,351F.3d499,511(C.A.112003)(noting that because asmuch as 80% of allcurrencyincirculationcontainsdrugresidue,adogalert“isoflittlevalue”),vacatedonothergroundsbyrehearingenbanc,357F.3d1225(C.A.11 2004);United States v.Carr, 25 F.3d1194, 1214–1217 (C.A.3 1994) (Becker, J.,concurring in part and dissenting in part)(“[A] **840 substantial portion of UnitedStates currency ... is tainted with sufficienttraces of controlled substances to cause atrained canine to alert to their presence”).Indeed,astudycitedbyIllinoisinthiscaseforthepropositionthatdogsniffsare“generallyreliable” shows thatdogs in artificial testingsituations return false positives anywherefrom12.5%to60%ofthetime,dependingon

the length of the search. See Reply Brief forPetitioner 13; Federal Aviation Admin., K.Garneretal.,DutyCycleoftheDetectorDog:ABaseline Study 12 (Apr.2001) (prepared byAuburn U. Inst. for Biological DetectionSystems). In practical terms, the evidence isclear that the dog that alerts hundreds oftimeswillbewrongdozensoftimes.Once the dog’s fallibility is recognized,however,thatendsthejustificationclaimedinPlacefortreatingthesniffassuigenerisunderthe Fourth Amendment: the sniff alert doesnotnecessarilysignalhiddencontraband,andopening the container or enclosed spacewhose emanations the doghas*413 sensedwillnotnecessarilyrevealcontrabandoranyotherevidenceofcrime.Thisisnot,ofcourse,to deny that a dog’s reaction may providereasonable suspicion, or probable cause, tosearchthecontainerorenclosure;theFourthAmendment does not demand certainty ofsuccess to justify a search for evidence orcontraband.ThepointissimplythatthesniffandalertcannotclaimthecertaintythatPlaceassumed,bothintreatingthedeliberateuseofsniffing dogs as sui generis and then takingthatcharacterizationasa reasontosay theyare not searches subject to FourthAmendmentscrutiny.Andwhenthatauraofuniqueness disappears, there is no basis inPlace’s reasoning, and no good reasonotherwise, to ignore the actual function thatdog sniffs perform. They are conducted toobtain information about the contents ofprivate spaces beyond anything that humansenses could perceive, even whenconventionally enhanced.The information isnot provided by independent third partiesbeyondthereachofconstitutionallimitations,but gathered by the government’s ownofficers in order to justify searches of thetraditionalsort,whichmayormaynotrevealevidence of crime butwill disclose anythingmeanttobekeptprivateintheareasearched.Thus in practice the government’s use of a

trained narcotics dog functions as a limitedsearch to reveal undisclosed facts aboutprivate enclosures, to be used to justify afurther and complete searchof the enclosedarea.Andgiven the fallibilityof thedog, thesniff is the first step in a process that maydisclose “intimate details” without revealingcontraband,justasathermal‐imagingdevicemightdo,asdescribedinKyllov.UnitedStates,533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94(2001).33

Kyllo was concerned with whether asearchoccurredwhenthepoliceusedathermal‐imaging device on a house todetectheatemanationsassociatedwithhigh‐powered marijuana‐growinglamps. In concluding that using thedevicewasasearch,theCourtstressedthatthe“Government[maynot]us[e]adevice...toexploredetailsofthehomethat would previously have beenunknowable without physicalintrusion.” 533 U.S., at 40, 121 S.Ct.2038. Any difference between thedwelling inKyllo and the trunk of thecar here may go to the issue of thereasonableness of the respectivesearches, but it has no bearing on thequestionofsearchornosearch.Norisitsignificant that Kyllo’s imaging devicewould disclose personal detailsimmediately, whereas they would berevealed only in the further step ofopening the enclosed space followingthe dog’s alert reaction; in practicaltermsthesamevaluesprotectedbytheFourthAmendmentareatstakeineachcase.ThejustificationsrequiredbytheFourth Amendment may or may notdifferasbetweenthetwopractices,butifconstitutionalscrutinyisinorderfortheimager,itisinorderforthedog.

**841 *414 Itmakes sense, then, to treat asniff as the search that it amounts to inpractice,andtorelyonthebodyofourFourthAmendmentcases,includingKyllo,indecidingwhether such a search is reasonable. As ageneral proposition, using a dog to sniff fordrugsissubjecttotherulethattheobjectofenforcing criminal laws does not, withoutmore, justify suspicionless FourthAmendment intrusions. See Indianapolis v.Edmond,531U.S.32,41–42,121S.Ct.447,148L.Ed.2d333(2000).SincethepoliceclaimtohavehadnoparticularsuspicionthatCaballeswasviolatinganydruglaw,4thissniffsearchmuststandorfallonitsbeingancillarytothetrafficstopthatleduptoit.Itistruethatthepolicehadprobablecausetostopthecarforanoffensecommittedintheofficer’spresence,whichCaballesconcedescouldhavejustifiedhisarrest.SeeBriefforRespondent31.Thereisnooccasiontoconsiderauthority incidentto arrest, however, seeKnowlesv. Iowa,525U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492(1998), forthepolicedidnothingmorethandetain Caballes long enough to check hisrecordandwritea ticket.Asa consequence,the reasonableness of the search must beassessed in relation to the actual delay thepolice chose to impose, and as JusticeGINSBURGpointsout inheropinion,post,at844,theFourthAmendmentconsequencesofstoppingforatrafficcitationaresettledlaw.4

Despite the remarkable fact that thepolice pulled over a car for going 71miles an hour on I–80, the Statemaintainsthatexcessivespeedwastheonly reason for the stop, and the casecomestousonthatassumption.

*415 In Berkemer v.McCarty, 468 U.S. 420,439–440, 104 S.Ct. 3138, 82 L.Ed.2d 317(1984), followed in Knowles, supra, at 117,119S.Ct.484,weheldthattheanalogueofthe

commontrafficstopwasthelimiteddetentionfor investigationauthorizedbyTerryv.Ohio,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). While Terry authorized a restrictedincidental search for weapons whenreasonable suspicionwarrants such a safetymeasure,id.,at25–26,88S.Ct.1868,theCourttook care to keep a Terry stop fromautomaticallybecomingafootinthedoorforall investigatory purposes; the permissibleintrusionwasboundedbythejustificationforthe detention, id., at 29–30, 88 S.Ct. 1868.5Although facts disclosed by enquiry withinthislimitmightgivegroundstogofurther,thegovernment could not otherwise takeadvantageofasuspect’simmobilitytosearchfor evidence unrelated to the reason for thedetention.ThathastobetheruleunlessTerryisgoingtobecomeanopensesameforgeneralsearches,andthatrulerequiresholding thatthepolicedonothavereasonablegroundstoconduct sniff searches for drugs simplybecause they have stopped someone toreceive a ticket for a highway offense. Sincethepolicehadnoindicationofillegalactivitybeyond thespeedof thecar in this case, thesniff search should be held unreasonableunder the Fourth Amendment and its fruitsshouldbesuppressed.5

Thus, in Place itself, the Governmentofficials had independent grounds tosuspect that the luggage in questioncontained contraband before theyemployedthedogsniff.462U.S.,at698,103 S.Ct. 2637 (describing how Placehad acted suspiciously in line at theairportandhadlabeledhisluggagewithinconsistentandfictionaladdresses).

NothinginthecaserelieduponbytheCourt,United States v. Jacobsen, 466 U.S. 109, 104S.Ct.1652,80L.Ed.2d85(1984),unsettledthelimitofreasonableenquiryadoptedinTerry.

In Jacobsen, the Court found that no FourthAmendment search occurred when federalagents analyzed **842 powder they hadalready lawfully obtained. The Court notedthat because the test could only revealwhetherthepowderwascocaine, theownerhad no legitimate privacy interest at stake.466 U.S., at 123, 104 S.Ct. 1652. *416 Asalready explained, however, the use of asniffing dog in cases like this is significantlydifferentandproperlytreatedasasearchthatdoes indeed implicate Fourth Amendmentprotection.In Jacobsen, once the powder was analyzed,that was effectively the end of the matter:either the powder was cocaine, a fact theowner had no legitimate interest inconcealing,oritwasnotcocaine,inwhichcasethetestrevealednothingaboutthepowderoranything else that was not alreadylegitimatelyobvious to thepolice.But in thecaseofthedogsniff,thedogdoesnotsmellthedisclosed contraband; it smells a closedcontainer. An affirmative reaction thereforedoes not identify a substance the policealreadylegitimatelypossess,but informsthepoliceinsteadmerelyofareasonablechanceof finding contraband they have yet to puttheirhandson.Thepolicewillthenopenthecontaineranddiscoverwhatever lieswithin,beitmarijuanaortheowner’sprivatepapers.Thus, while Jacobsen could rely on theassumption that the enquiry in questionwould either show with certainty that aknown substance was contraband or wouldreveal nothingmore, both the certainty andthe limit on disclosure that may follow aremissingwhenthedogsniffsthecar.66

It would also be error to claim thatsomevariantoftheplain‐viewdoctrineexcusesthe lackof justificationforthedog sniff in this case.When an officerobservesanobject leftby itsowner in

plain view, no search occurs becausethe owner has exhibited “no intentiontokeep[theobject]tohimself.”Katzv.UnitedStates,389U.S.347,361,88S.Ct.507,19L.Ed.2d576(1967)(Harlan,J.,concurring). In contrast, when anindividual conceals his possessionsfrom the world, he has grounds toexpect some degree of privacy. Whileplainviewmaybeenhancedsomewhatby technology, see, e.g.,Dow ChemicalCo. v.United States, 476 U.S. 227, 106S.Ct. 1819, 90 L.Ed.2d 226 (1986)(allowing for aerial surveillance of anindustrialcomplex),therearelimits.AsKyllo v.United States, 533 U.S. 27, 33,121S.Ct.2038,150L.Ed.2d94(2001),explained in treating the thermal‐imaging device as outside the plain‐view doctrine, “[w]e have previouslyreserved judgment as to how muchtechnologicalenhancementofordinaryperception” turns mere observationintoaFourthAmendmentsearch.WhileKyllo laid special emphasis on theheightened privacy expectations thatsurround the home, closed car trunksare accorded some level of privacyprotection.See,e.g.,NewYorkv.Belton,453U.S.454,460,n.4,101S.Ct.2860,69 L.Ed.2d 768 (1981) (holding thateven a search incident to arrest in avehicledoesnotitselfpermitasearchofthe trunk). As a result, if FourthAmendment protections are to havemeaninginthefaceofsuperhuman,yetfallible, techniques like the use oftraineddogs,thosetechniquesmustbejustified on the basis of theirreasonableness, lest everything bedeemedinplainview.

*417TheCourttodaydoesnotgosofarastosay explicitly that sniff searches by dogs

trainedtosensecontrabandalwaysgetafreepass under the Fourth Amendment, since itreserves judgment on the constitutionalsignificance of sniffs assumed to be moreintrusivethanadog’swalkaroundastoppedcar,ante,at838.Forthisreason,Idonottakethe Court’s reliance on Jacobsen as actuallysignaling recognitionofabroadauthority toconduct suspicionless sniffs fordrugs inanyparkedcar,aboutwhichJusticeGINSBURGisrightlyconcerned,post,at845–846,orontheperson of any pedestrian minding his ownbusinessonasidewalk.ButtheCourt’sstatedreasoning provides no apparent stoppingpoint shortof suchexcesses.For thesakeofproviding a workable framework to analyzecasesonfactslikethese,whicharecertaintocomealong,Iwouldtreatthedogsniffasthefamiliar search it is in fact,**843 subject toscrutinyundertheFourthAmendment.77

I should take care myself to reservejudgment about a possible casesignificantlyunlikethisone.Allofusareconcerned not to prejudge a claim ofauthority to detect explosives anddangerous chemical or biologicalweapons that might be carried by aterrorist who prompts noindividualized suspicion. Suffice it tosay here that what is a reasonablesearch depends in part ondemonstrated risk. Unreasonable sniffsearches for marijuana are notnecessarilyunreasonablesniffsearchesfor destructive or deadly material ifsuicidebombsareasocietalrisk.

Justice GINSBURG, with whom JusticeSOUTERjoins,dissenting.Illinois State Police Trooper Daniel GillettestoppedRoyCaballesfordriving71milesper

hourinazonewithaposted*418speedlimitof65milesperhour.TrooperCraigGrahamoftheDrugInterdictionTeamheardontheradiothatTrooperGillettewasmakingatrafficstop.Although Gillette requested no aid, Grahamdecidedtocometothescenetoconductadogsniff. Gillette informed Caballes that he wasspeeding and asked for the usualdocuments—driver’slicense,carregistration,and proof of insurance. Caballes promptlyprovided the requested documents butrefusedtoconsent toasearchofhisvehicle.After calling his dispatcher to check on thevalidity of Caballes’ license and foroutstandingwarrants,Gillettereturnedtohisvehicle to write Caballes a warning ticket.Interrupted by a radio call on an unrelatedmatter, Gillette was still writing the ticketwhenTrooperGrahamarrivedwithhisdrug‐detectiondog.Grahamwalkedthedogaroundthecar,thedogalertedatCaballes’trunk,and,after opening the trunk, the troopers foundmarijuana. 207 Ill.2d 504, 506–507, 280Ill.Dec.277,278,802N.E.2d202,203(2003).The Supreme Court of Illinois held that thedrugevidenceshouldhavebeensuppressed.Id.,at506,280Ill.Dec.,at278,802N.E.2d,at202.AdheringtoitsdecisioninPeoplev.Cox,202Ill.2d462,270Ill.Dec.81,782N.E.2d275(2002), the court employed a two‐part testtaken fromTerryv.Ohio, 392U.S.1,88S.Ct.1868,20L.Ed.2d889(1968),todeterminetheoverallreasonablenessofthestop.207Ill.2d,at508,280Ill.Dec.,at278,802N.E.2d,at204.The court asked first “whether the officer’saction was justified at its inception,” andsecond“whetheritwasreasonablyrelatedinscopetothecircumstanceswhichjustifiedtheinterference inthe firstplace.”Ibid. (quotingPeople v.Brownlee, 186 Ill.2d 501, 518–519,239Ill.Dec.25,34,713N.E.2d556,565(1999)(inturnquotingTerry,392U.S.,at19–20,88S.Ct. 1868)). “[I]t is undisputed,” the courtobserved, “that the traffic stopwasproperlyinitiated”;thus,thedispositiveinquirytrained

onthe“secondpartoftheTerrytest,”inwhich“[t]heStatebears theburdenof establishingthattheconductremainedwithinthescopeofthestop.”207Ill.2d,at509,280Ill.Dec.,at279,802N.E.2d,at204.*419ThecourtconcludedthattheStatefailedto offer sufficient justification for the caninesniff: “The police did not detect the odor ofmarijuana in the car or note any otherevidence suggesting the presence of illegaldrugs.”Ibid.Lacking“specificandarticulablefacts” supporting the canine sniff, ibid.(quoting Cox, 202 Ill.2d, at 470–471, 270Ill.Dec.81,782N.E.2d,at281),thecourtruled,“the police impermissibly broadened thescopeofthetrafficstopinthiscaseintoadruginvestigation.”207Ill.2d,at509,280Ill.Dec.,at279,802N.E.2d,at204.1IwouldaffirmtheIllinois**844SupremeCourt’sjudgmentandhold that the drug sniff violated the FourthAmendment.1

The Illinois Supreme Court heldinsufficient to support a canine sniffGillette’sobservationsthat(1)CaballessaidhewasmovingtoChicago,buthisonlyvisiblebelongingsweretwosportcoats in the backseat; (2) the carsmelled of air freshener; (3) Caballeswas dressed for business, but wasunemployed; and (4) Caballes seemednervous. Even viewed together, thecourtsaid,theseobservationsgaveriseto“nothingmorethanavaguehunch”of“possiblewrongdoing.” 207 Ill.2d 504,509–510,280Ill.Dec.,at279–280,802N.E.2d202,204–205(2003).ThisCourtproceeds on “the assumption that theofficerconductingthedogsniffhadnoinformation about [Caballes].”Ante, at837.

InTerryv.Ohio,theCourtupheldthestopand

subsequentfriskofanindividualbasedonanofficer’s observation of suspicious behaviorandhisreasonablebeliefthatthesuspectwasarmed.See392U.S.,at27–28,88S.Ct.1868.InaTerry‐type investigatorystop, “theofficer’saction[mustbe]justifiedatitsinception,and... reasonably related in scope to thecircumstances which justified theinterference in the first place.” Id., at 20, 88S.Ct. 1868. In applying Terry, the Court hasseveraltimesindicatedthatthelimitationon“scope”isnotconfinedtothedurationoftheseizure; it also encompasses the manner inwhichtheseizureisconducted.See,e.g.,Hiibelv.Sixth JudicialDist.CourtofNev.,HumboldtCty.,542U.S.177,188,124S.Ct.2451,2459,159L.Ed.2d292(2004)(anofficer’srequestthat an individual identify himself “has animmediaterelationtothepurpose,rationale,and practical demands of a Terry stop”);UnitedStatesv.Hensley,469U.S.221,235,105S.Ct.675,83L.Ed.2d604(1985)(examining,under Terry, *420 both “the length andintrusiveness of the stop and detention”);Floridav.Royer, 460U.S. 491,500,103S.Ct.1319, 75 L.Ed.2d 229 (1983) (pluralityopinion) (“[A]n investigative detentionmustbe temporary and last no longer than isnecessarytoeffectuatethepurposeofthestop[and] the investigative methods employedshould be the least intrusive meansreasonably available to verify or dispel theofficer’ssuspicion....”).“A routine traffic stop,” the Court hasobserved,“isarelativelybriefencounterand‘ismoreanalogoustoaso‐calledTerrystop...thantoaformalarrest.’”Knowlesv.Iowa,525U.S.113,117,119S.Ct.484,142L.Ed.2d492(1998)(quotingBerkemerv.McCarty,468U.S.420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317(1984)); see also ante, at 841 (SOUTER, J.,dissenting) (The government may not “takeadvantageofasuspect’simmobilitytosearchfor evidence unrelated to the reason for thedetention.”).2 I would apply Terry’s

reasonable‐relation test, as the IllinoisSupremeCourtdid,todeterminewhetherthecanine sniff impermissibly expanded thescopeoftheinitiallyvalidseizureofCaballes.2

TheBerkemer Court cautioned thatbyanalogizingatrafficstoptoaTerrystop,it did “not suggest that a traffic stopsupported by probable causemay notexceed the bounds set by the FourthAmendment on the scope of a Terrystop.”468U.S., at439,n.29,104S.Ct.3138. This Court, however, looked toTerryearlierindecidingthatanofficeracted reasonably when he ordered amotorist stopped for driving withexpired license tags to exit his car,Pennsylvania v. Mimms, 434 U.S. 106,109–110,98S.Ct. 330,54L.Ed.2d331(1977) (per curiam), and laterreaffirmed the Terry analogy whenevaluatingapoliceofficer’sauthoritytosearchavehicleduringaroutinetrafficstop,Knowles,525U.S.,at117,119S.Ct.484.

Itishardlydispositivethatthedogsniffinthiscasemaynothavelengthenedthedurationofthe stop. Cf. ante, at 837 (“A seizure ... canbecomeunlawfulifitisprolongedbeyondthetime reasonably required to complete [theinitial]mission.”).Terry, itmerits repetition,instructsthat**845anyinvestigationmustbe“reasonably related in scope to thecircumstances which justified theinterferenceinthefirstplace.”392U.S.,at20,88 S.Ct. 1868 (emphasis added). Theunwarranted *421 and nonconsensualexpansionoftheseizureherefromaroutinetrafficstoptoadruginvestigationbroadenedthe scope of the investigation in a mannerthat,inmyjudgment,runsafouloftheFourthAmendment.3

3

The question whether a police officerinquiring about drugs withoutreasonable suspicionunconstitutionally broadens a trafficinvestigationisnotbeforetheCourt.Cf.Floridav.Bostick,501U.S.429,434,111S.Ct. 2382, 115 L.Ed.2d 389 (1991)(policequestioningofabuspassenger,whomighthavejustsaid“No,”didnotconstituteaseizure).

TheCourtrejectstheIllinoisSupremeCourt’sjudgment and, implicitly, the application ofTerrytoatrafficstopconverted,bycallingina dog, to a drug search. The Court so rules,holding that a dog sniff does not render aseizure that is reasonable in timeunreasonableinscope.Ante,at837.Dogsniffsthatdetectonlythepossessionofcontrabandmay be employed without offense to theFourth Amendment, the Court reasons,because they reveal no lawful activity andhence disturb no legitimate expectation ofprivacy.Ante,at837–838.Inmyview, theCourtdiminishes theFourthAmendment’sforcebyabandoningthesecondTerry inquiry (was the police action“reasonably related in scope to thecircumstances [justifiying] the [initial]interference”).392U.S.,at20,88S.Ct.1868.Adrug‐detectiondogisanintimidatinganimal.Cf.United States v.Williams, 356 F.3d 1268,1276 (C.A.10 2004) (McKay, J., dissenting)(“drugdogsarenotlapdogs”).Injectingsuchananimal intoa routine traffic stopchangesthe character of the encounter between thepolice and the motorist. The stop becomesbroader, more adversarial, and (in at leastsomecases) longer.Caballes—who,as farasTroopers Gillette and Graham knew, wasguiltysolelyofdrivingsixmilesperhouroverthe speed limit—was exposed to theembarrassment and intimidation of being

investigated, on a public thoroughfare, fordrugs. Even if the drug sniff is notcharacterized as a Fourth Amendment“search,”cf.Indianapolis*422v.Edmond,531U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333(2000);United States v. Place, 462 U.S. 696,707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983),the sniff surely broadened the scope of thetraffic‐violation‐relatedseizure.The Court has never removed police actionfrom Fourth Amendment control on theground that the action is well calculated toapprehendtheguilty.See,e.g.,UnitedStatesv.Karo, 468 U.S. 705, 717, 104 S.Ct. 3296, 82L.Ed.2d 530 (1984) (Fourth Amendmentwarrant requirement applies to policemonitoringofabeeperinahouseevenif“thefacts[justify]believingthatacrimeisbeingorwill be committed and that monitoring thebeeperwherever it goes is likely toproduceevidence of criminal activity.”); see alsoMinnesotav.Carter,525U.S.83,110,119S.Ct.469, 142 L.Ed.2d 373 (1998) (GINSBURG, J.,dissenting) (“FourthAmendment protection,reserved for the innocent only, would havelittle force in regulating police behaviortoward either the innocent or the guilty.”).Under today’s decision, every traffic stopcouldbecomeanoccasiontocallinthedogs,tothedistressandembarrassmentofthelaw‐abidingpopulation.The Illinois Supreme Court, it seems to me,correctlyapprehendedthedangerinallowingthepolicetosearchforcontrabanddespitetheabsence of cause to suspect its presence.Today’s decision, in contrast, clears thewayfor suspicionless, **846 dog‐accompanieddrug sweepsof parked cars along sidewalksand in parking lots. Compare, e.g., UnitedStates v. Ludwig, 10 F.3d 1523, 1526–1527(C.A.101993)(upholdingasearchbasedonacanine drug sniff of a parked car in amotelparking lot conducted without particularsuspicion), with United States v. Quinn, 815

F.2d153,159(C.A.11987)(officersmusthavereasonable suspicion that a car containsnarcotics at the moment a dog sniff isperformed),andPlace,462U.S., at706–707,103 S.Ct. 2637 (Fourth Amendment notviolatedbyadogsniffofapieceofluggagethatwas seized, pre‐sniff, based on suspicion ofdrugs). Nor would motorists haveconstitutional grounds for complaint shouldpolice with dogs, stationed at long trafficlights,circlecarswaitingfortheredsignaltoturngreen.*423 Today’s decision also undermines thisCourt’s situation‐sensitive balancing ofFourth Amendment interests in othercontexts.Forexample,inBondv.UnitedStates,529 U.S. 334, 338–339, 120 S.Ct. 1462, 146L.Ed.2d365(2000),theCourtheldthatabuspassengerhadanexpectationofprivacyinabagplacedinanoverheadbinandthatapoliceofficer’s physical manipulation of the bagconstituted an illegal search. If canine drugsniffs are entirely exempt from FourthAmendment inspection, a sniff couldsubstitute for an officer’s request to a buspassenger for permission to search his bag,withthissignificantdifference:Thepassengerwouldnothavetheoptiontosay“No.”Thedogsniff in this case, itbearsemphasis,was for drug detection only. A dog sniff forexplosives, involving security interests notpresentedhere,wouldbeanentirelydifferentmatter. Detector dogs are ordinarily trainednot as all‐purpose sniffers, but for discretepurposes. For example, theymay be trainedfor narcotics detection or for explosivesdetection or for agricultural productsdetection. See, e.g., U.S. Customs & BorderProtection, Canine Enforcement TrainingCenterTrainingProgramCourseDescriptions,http://www.cbp.gov/xp/cgov/border_security/canines/training_program.xml (allInternet materials as visited Dec. 16, 2004,and available in Clerk of Court’s case file)

(describing Customs training courses innarcoticsdetection);TransportationSecurityAdministration, Canine and ExplosivesProgram, http://www.tsa.gov/public/display?theme=32(describing Transportation SecurityAdministration’s explosives detection canineprogram); U.S. Dept. of Agriculture, Animaland Plant Health Inspection Service, USDA’sDetector Dogs: Protecting AmericanAgriculture (Oct.2001), available athttp://www.aphis.usda.gov/oa/pubs/detdogs.pdf (describing USDABeagleBrigadedetectordogstrainedtodetectprohibited fruits, plants, andmeat); see alsoJennings,OriginsandHistoryofSecurityandDetectorDogs,inCanineSportsMedicineandSurgery16,18–19(M.Bloomberg,J.Dee,&R.Taylor eds.1998) (describing narcotics‐detector*424dogsusedbyBorderPatrolandCustoms,andbombdetectordogsusedbytheFederal Aviation Administration and theSecret Service, but noting the possibility insomecircumstancesofcrosstrainingdogsformultiple tasks); S. Chapman, Police Dogs inNorthAmerica64,70–79(1990)(describingnarcotics‐andexplosives‐detectiondogsandnotingthepossibilityofcrosstraining).Thereis no indication in this case that the dogaccompanying Trooper Grahamwas trainedfor anything other than drug detection. See207 Ill.2d, at 507, 280 Ill.Dec., at 278, 802N.E.2d,at203(“TrooperGrahamarrivedwithhis drug‐detection dog ....”); Brief forPetitioner3(“TrooperGrahamarrivedwithadrug‐detectiondog....”).**847ThisCourthasdistinguishedbetweenthegeneralinterestincrimecontrolandmoreimmediate threats to public safety. InMichiganDept.ofStatePolicev.Sitz,496U.S.444,110S.Ct.2481,110L.Ed.2d412(1990),thisCourtupheldtheuseofasobrietytrafficcheckpoint. Balancing the State’s interest inpreventingdrunkdriving,theextenttowhichthat could be accomplished through the

checkpoint program, and the degree ofintrusion the stops involved, the Courtdetermined that the State’s checkpointprogram was consistent with the FourthAmendment. Id., at 455, 110 S.Ct. 2481. TenyearsafterSitz,inIndianapolisv.Edmond,531U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333, thisCourtheldthatadruginterdictioncheckpointviolated theFourthAmendment.Despite theillegal narcotics traffic that the Nation isstruggling to stem, the Court explained, a“general interest in crime control” did notjustify the stops. Id., at 43–44, 121 S.Ct. 447(internalquotationmarksomitted).TheCourtdistinguishedthesobrietycheckpointsinSitzon the ground that those checkpoints weredesignedtoeliminatean“immediate,vehicle‐boundthreattolifeandlimb.”531U.S.,at43,121S.Ct.447.The use of bomb‐detection dogs to checkvehicles for explosives without doubt has acloserkinship to thesobrietycheckpoints inSitzthantothedrugcheckpointsinEdmond.As the Court observed in Edmond: “[T]heFourth Amendment would almost certainlypermit an appropriately tailored *425roadblock set up to thwart an imminentterrorist attack ....” 531 U.S., at 44, 121 S.Ct.447.EveniftheCourtweretochangecourseandcharacterizeadogsniffasanindependentFourth Amendment search, see ante, p. 838(SOUTER, J., dissenting), the immediate,present danger of explosives would likelyjustify a bomb sniff under the special needsdoctrine.See,e.g.,ante,at843,n.7(SOUTER,J., dissenting); Griffin v.Wisconsin, 483 U.S.868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709(1987)(permittingexceptionstothewarrantandprobable‐causerequirementsforasearchwhen“specialneeds,beyondthenormalneedfor law enforcement,” make thoserequirements impracticable (quoting NewJersey v.T.L.O., 469 U.S. 325, 351, 105 S.Ct.733, 83 L.Ed.2d 720 (1985) (Blackmun, J.,concurringinjudgment))).

***

Forthereasonsstated,Iwouldholdthatthepolice violated Caballes’ Fourth Amendmentrights when, without cause to suspectwrongdoing,theyconductedadogsniffofhisvehicle.IwouldthereforeaffirmthejudgmentoftheIllinoisSupremeCourt.

ParallelCitations

125S.Ct.834,160L.Ed.2d842,73USLW4111,05Cal.DailyOp.Serv.648,2005DailyJournalD.A.R.849,18Fla.L.WeeklyFed.S100

U.S. v. Johnson Case No. 04-2732 United States Seventh Circuit Court of Appeals Argued March 2, 2005 Judge Easterbrook: Our third case for argument this morning is United States against Johnson. Judge Easterbrook: Mr. Scacchetti. Appellant’s Counsel: Your honors. . . May it please the court. I believe I have reserved two minutes for rebuttal. Judge Bauer: Yup, you have. Appellant’s Counsel: Thank you. Judge Bauer: Now go ahead. Appellant’s Counsel: I’ll be honest with this court. I don’t think that the position that we have is one that this court has. . . has honored, has found to be a very strong one. But I think that we have a problem with police taking advantage of interrogation situations, of hoping that they will find evidence, of making pretextual stops and using the situation by saying yes, this gentleman was speeding and then ultimately finding cocaine and being happy when they make the arrest and ultimately make the conviction. Judge Sykes: Counsel, is there anything left of your argument after the Supreme Court’s decision in January in the Caballes case? Appellant’s Counsel: I understand. I mean, I’m here because I feel very strongly about this. I mean, my words are probably not being heard by very many people. But I feel it necessary that some people need to listen. There are . . . Judge Sykes: Any way to distinguish it? Appellant’s Counsel: (sigh) Judge Sykes: I mean I understand that you object to the premise of that holding. . . Appellant’s Counsel: I hope you can find one.

Judge Bauer: Well, what you want us to do is overrule the Supreme Court. Appellant’s Counsel: I want you to find ways to help me distinguish this, Judge. I just. . . I’m very disturbed. Judge Bauer: Well, you can be disturbed on your own time. Why are you intruding on mine? I can’t reverse the Supreme Court. Appellant’s Counsel: Because I want you to be disturbed, too. Judge Bauer: Well, if I am disturbed it is for arguments that have nothing to do with reality. Appellant’s Counsel: I understand, and I don’t want to argue. I want to help effect a change that is positive to this country. Judge Bauer: Is there anything in your argument that is different than your brief? Appellant’s Counsel: (sigh) Judge Bauer: Or have you expended your spleen on the brief itself? Appellant’s Counsel: The only thing I would tell you at this point that is not in here is that the government talks about how the, the, the. . . consent is, is. . . We need to look at the issue of consent. There is, there obviously is. . . Judge Bauer: Consent isn’t necessary under the facts of this case. Appellant’s Counsel: Based on the dog. Judge Bauer: Based on the Supreme Court. Appellant’s Counsel: I know. I know. Well, I have nothing else to say. Good luck. Judge Easterbrook: Thank you Counsel. Mr. Brookman. Counsel. Counsel! Your seat is at Counsel’s table. Appellant’s Counsel: Your honor. I apologize. I was walking back in frustration.

Appellee’s Counsel: May it please the Court. My name is Matt Brookman, I’m an Assistant U.S. Attorney from the. . . Judge Bauer: I assume you don’t want us to overrule the Supreme Court. Appellee’s Counsel: I don’t. Judge Bauer: That’s good. Appellee’s Counsel: Thank you very much. I appreciate your time. Judge Easterbrook: Thank you very much. The case is taken under advisement.

Second client conference – client talking points Your attorney will be delivering the results of research that show that the Colorado state trooper’s use of a dog to search your vehicle was most likely constitutional under relevant caselaw. Returning to your role as a layperson, simulate one of the following responses to your attorney’s report.

Instruct your attorney that you still think that the search was illegal and that you want the attorney to make that argument in court. Ask your attorney if your instructions will be followed, letting the attorney know that otherwise you will find another attorney who will.

Tell the attorney that whatever the attorney says must be right. When the attorney asks you how you want to proceed, say that you want the attorney to decide what to do.

Tell the attorney that you don’t think that you should have to pay for the work that the attorney performed since the attorney is not giving helpful advice. Ask the attorney how much the attorney will discount the fee.