Search and Seizure. US Supreme Court Lets State Rulings Barring Drug Dog House Searches and Restricting Traffic Stop Drug Searches Stand

The US Supreme Court Monday refused to hear two appeals from states where the courts have moved to impose restrictions on drug-related searches. While the court’s decision not to hear the cases signals no change in federal law, it does mean that residents of the states in question will be protected from the practices at issue.

In the first case, Florida v. Rabb, police received a tip that James Rabb was growing marijuana in his home. They pulled him over for a traffic violation and found him in possession of a small amount of marijuana and some books about growing pot, then went to his home and had a drug dog sniff the exterior. The dog alerted, and the police used that alert as the basis for a search warrant. A subsequent search found a grow operation, and Rabb was charged on that basis.

A Florida appeals court threw out Rabb’s conviction, arguing that the drug dog sniff of a home amounted to an unconstitutional invasion of privacy.

 Last year, the state of Florida appealed to the US Supreme Court, and the high court ordered the appeals court to reconsider its decision in the wake of the Supreme Court’s 2005 drug dog search ruling in Illinois v. Caballes,(click to read more about this case) where the court approved the constitutionality of drug dog sniffs during traffic stops. But the Florida appeals court instead cited another US Supreme Court case, Kyllo v. US, (click to read more about this case) where the court held that the use of infrared sensors to detect heat emissions from a grow lamp was an impermissible violation of the Fourth Amendment.

By refusing to hear Florida’s appeal in the Rabb case, the court signaled it was not prepared to extend its Caballes reasoning to home searches.

On the other hand, the high court last year also refused to hear the case of David Gregory Smith, (click to read more about this case)  in which the Utah Supreme Court upheld his conviction after a search triggered by a drug dog sniff at his front door.

In the second case, Illinois v. Sloup, John Sloup was arrested for possession of a crack pipe during a traffic stop. Sloup appealed his conviction on the grounds that the police officer did not have reasonable suspicion an offense had been committed before asking Sloup’s permission to search his vehicle. An Illinois appeals court agreed with Sloup, and overturned his conviction. By refusing to take the state’s appeal, the US Supreme Court let the decision stand.

The two cases are binding only in the states where they were tried, but could provide grist for the mill in other states as well when courts there hear similar cases. In the meantime at least, Florida residents are safe from warrantless drug dog sniffs of their homes (but Utah residents are not) and Illinois residents have slightly more protection from unwarranted searches during traffic stops.

Drug War Issues Search and Seizure


Newsbrief: Supreme Court Allows Drug Dog Vehicle Searches Without Cause 1/28/05

The Supreme Court has once again expanded the ability of police to conduct warrantless searches, this time okaying the use of drug-sniffing dogs to check motorists detained for traffic violations even when police have no reason to suspect they have committed a crime. The decision provides constitutional protection for what has become an increasingly common practice on the nation’s highways in the war on drugs. It also, according to an impassioned dissenting opinion, could lead to widespread drug dog sweeps of sidewalks and parking lots.

The Monday ruling came in the case of Roy Caballes, who was stopped by Illinois police for speeding on Interstate 80 in 1998. While Caballes complied with the request to produce his driver’s license, registration, and proof of insurance, troopers brought a drug dog to sniff his car because he “seemed nervous.” The dog alerted, providing police with probable cause to search Caballes’ vehicle, where they found pounds of marijuana. He was sentenced to 12 years in prison, but his conviction was overturned by the Illinois Supreme Court, which held that police “impermissibly broadened the scope of the traffic stop” by using the drug-sniffing dog without suspicion that Caballes possessed drugs.

At the Supreme Court Cabelles’ attorney argued that the Fourth Amendment protects motorists from searches such as dog sniffs, which he said could be humiliating and intimidating and should not be allowed without particularized suspicion. But the state of Illinois, backed by the Bush administration Department of Justice — and precedent in the federal courts — argued that walking a drug-sniffing dog around a vehicle to see if it could detect illicit drugs was not a “search.”

In a 6-2 decision, the Supreme Court found for the state. “The dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation,” wrote Justice John Paul Stevens for the majority. “Any intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.” But Stevens wasn’t done yet. “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,” he added.

Still, at least for two justices, providing a constitutional imprimatur for suspicionless drug dog sniffing of vehicles was too much. In a dissent joined in part by Justice David Souter, Justice Ruth Bader Ginsburg warned that the majority opinion could make traffic stops more “adversarial” and lead to widespread drug dog searches. “Injecting such animals into a routine traffic stop changes the character of the encounter between the police and the motorist. The stop becomes broader, more adversarial and (in at least some cases) longer,” she wrote. “Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population,” she wrote. The decision “clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots.”

While Monday’s ruling allows police to use the occasion of a traffic stop to let drug-sniffing dogs check out a vehicle, it does not allow for the indefinite detention of drivers to give the dogs time to arrive to do the non-search search. Lower federal courts have varied in determining what period of time constitutes a constitutionally permissible detention, with some allowing waits of up to 90 minutes.

Steven Silverman, executive director of the Flex Your Rights Foundation, counsels drivers confronted with threats of calling in the drug dogs to exercise their rights and simply ask to be on their way. “Basically, if police can’t bring a dog to the scene in the time it takes to run your tags and write a ticket, the use of the dog becomes constitutionally suspect,” said Silverman. “In our video, ‘BUSTED: The Citizen’s Guide to Surviving Police Encounters,’ we warn viewers that police will often threaten to bring dogs to the scene. Since police cannot detain you for the purpose of investigating an additional crime — unless they have evidence you’ve committed one — our advice is still to ask if you are free to go.”

Click here to read the case, Illinois v. Caballes, 03-923, online — scroll down to reach the opinion.


Supreme Court Nixes Warrantless Heat-Sensor Searches, Oregon Grow-Op Case Updates Fourth Amendment to Deal With New Technologies 6/15/01

Police must first obtain a search warrant before using a heat-sensing device to look inside a person’s home, a narrowly divided Supreme Court ruled Monday. In an unusual Supreme Court alliance, conservative justices Antonin Scalia and Clarence Thomas joined with liberals David Souter, Ruth Bader Ginsburg and Steven Breyer to form a 5-4 majority.

While the Rehnquist Supreme Court has historically taken an accepting approach to drug war erosion of Fourth Amendment protections from illegal search and seizure, the ruling in Kyllo v. US marks the third time this year that the court has rejected drug searches and imposed limits on a drug war that previously seemed limitless. In an Indianapolis case last November (, the Court held that suspicionless drug checkpoints on public highways violated the Constitution. And in a recent South Carolina case (, the Court ruled out state drug testing of pregnant mothers without their consent.

“This is an important victory for the Fourth Amendment because it says again the home is a protected area,” University of Iowa law professor James Tomkovicz, who filed a friend-of-the-court brief for the American Civil Liberties Union, told the Los Angeles Times. “I think [the justices] were worried about what comes next, the technology that would allow the government to stay out but detect what is going on inside the home.”

“One less thing to worry about,” one Washington area indoor marijuana grower chortled to DRCNet. “I definitely feel more secure in my home now.”

Monday’s ruling came in the case of Florence, Oregon, resident Danny Kyllo, who was arrested in 1992 for growing marijuana after federal agents used a thermal imaging device to pick up infrared radiation from within his home. The agents told a federal magistrate the heat signature matched the pattern of a marijuana grow-op. The judge then approved a search warrant based largely on the thermal imaging evidence, and agents subsequently raided the house.

Kyllo was indeed growing marijuana — 100 plants were found during the search — and eventually accepted a conditional guilty plea, which allowed him to appeal the legality of the warrantless thermal imaging surveillance. On appeal, he argued that the seized plants could not be used as evidence against him because police did not have a search warrant before surveilling his home with the thermal imaging device. Kyllo lost at the federal appellate level when the 9th US Federal Court of Appeals’ ruled that the use of heat sensors did not constitute a search of Kyllo’s home and therefore did not require a search warrant.

The Supreme Court disagreed. For the majority, the question to be decided was two-fold. First, did thermal imaging surveillance constitute a search in the constitutional sense; and second, if so, was such a warrantless search reasonable and therefore constitutional?

In the majority opinion, Justice Scalia wrote: “Where, as here, the government uses a device that is not in general public use to explore intimate details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”

Quoting earlier Fourth Amendment search and seizure rulings, Scalia wrote that “at the very core” of the amendment “stands the right of a man to retreat into his own home and there be free from government intrusion. It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been unaffected by the advance of technology,” Scalia wrote.

“In the case of the search of a home’s interior — the prototypical and hence most commonly litigated area of protected privacy — there is a ready criterion, with roots deep in common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw the protection of this minimum expectation would allow police technology to erode the privacy guaranteed by the Fourth Amendment.”
The minority opinion, authored by Justice Stevens and joined by Chief Justice Rehnquist and Justices O’Connor and Kennedy, bought the Justice Department argument that thermal imaging did not constitute a search and was therefore permissible without obtaining a search warrant. “No intimate details of the home were observed, and there was no intrusion upon the privacy of individuals,” wrote Stevens.

But, Scalia retorted in the majority opinion, heat-sensing devices “might disclose, for example, at what hour of each night the lady of the house takes her daily sauna and bath — a detail that many would consider ‘intimate.’”

The Supreme Court has in recent years upheld a number of police surveillance techniques on the grounds that they did not constitute searches under the Constitution. Tactics okayed by the Court include the use of drug-sniffing dogs, the use of binoculars to look in a yard, and the use of low flying airplanes and helicopters to spy on private property. In all of those instances, the court held that officers were free to use their senses to peer into a private area.

Sophisticated surveillance devices that can see through walls are different, the court held. Allowing warrantless searches with such devices “would leave the homeowner at the mercy of advancing technology — including imaging technology that could discern all human activity in the home,” Scalia wrote.

While with this ruling, the American people have seen fundamental constitutional protections brought into the 21st Century, it’s not all over yet for Danny Lee Kyllo. Although the Supreme Court reversed the appeal’s court ruling on the admissibility of thermal imaging evidence, it did not throw out Kyllo’s conviction. Instead, it remanded his case back to the federal circuit court to decide whether, absent the thermal imaging evidence, any basis to order a search warrant existed.

The ruling and the dissent are both available at online

Newsbrief: Supreme Court Lets Stand Ruling Allowing Drug Dog Searches Outside People’s Homes 4/8/05

On Monday, the US Supreme Court declined to hear an appeal of a Houston case in which police used a drug dog to sniff outside a man’s garage. The non-ruling comes on the heels of the court’s January decision ratifying the use of drug dogs in traffic stops. In that ruling, dissenting justices David Souter and Ruth Bader Ginsburg warned that it could lead to more intrusive drug dog searches, and police in Houston are apparently prepared to test the limits of the law.

But they won’t have to. Instead, the Supreme Court let stand a federal appeals court ruling against David Gregory Smith. In that case, police sicced a drug dog on Smith’s garage and when the drug dog alerted, police used the alert as the basis for a search of Smith’s home. As a result, he was arrested and ultimately convicted of drug possession. Smith argued that the drug dog sniff was an improper police search that violated his Fourth Amendment rights against arbitrary searches.

“The use of a drug-sniffing dog at the entrance of a private home to detect the contents of the dwelling strips the citizenry of the most basic boundary of personal privacy by gathering invisible information coming from the interior of the home,” Smith argued in his appeal.

While the US Supreme Court has upheld the use of drug dogs, confusion lingers over the permissible extent of their use. Smith argued that the correct precedent in his case was not the January highway drug dog case but a 2001 case involving the use of thermal imaging, in which the court held that a warrant was necessary. “No distinction exists between a thermal-imaging device and drug-sniffing dog in that they are both sense-enhancing and permit information regarding the interior of a home be gathered which could not otherwise be obtained without physical intrusion into a constitutionally protected area,” Smith argued.

But by refusing to accept Smith’s case, the Supreme Court both affirmed his conviction (and 37-year sentence for methamphetamine possession) and left unsettled the limits to drug dog searches.
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