State's Court of Last Resort is in D.C.

Ah, the verities of life! Death ... taxes ... and the U.S. Supreme Court reversing a pro-defense search and seizure decision from Illinois.

Last month the Supreme Court decided Illinois v. Caballes, No. 03-923 (Jan. 24). The Illinois Supreme Court had held that, without articulable facts to suggest drug activity, it was unconstitutional to use a drugsniffing dog during a routine traffic stop. The U.S. Supreme Court reversed and found such a procedure to be reasonable under the Fourth Amendment.

The result itself was not surprising; after all, defense search and seizure claims have not fared well in Washington over the last 35 years.

But the fun fact is that this keeps The Streak alive. By my count -- and if I am mistaken, please let me know -- the last 10 pro-defense Illinois search and seizure decisions reviewed by the U.S. Supreme Court have all resulted in victories for the prosecution.

(My count, in addition to Caballes, includes Illinois v. Lidster, 540 U.S. 419 (2004); Illinois v. McArthur, 531 U.S. 326 (2001); Illinois v. Wardlow, 528 U.S. 119 (2000); Illinois v. Rodriguez, 497 U.S. 177 (1990); Illinois v. Krull, 480 U.S. 340 (1987); Illinois v. Batchelder, 463 U.S. 1112 (1983) (per curiam) (state court decision had Fourth Amendment implications, although the Supreme Court decided case on straight due process analysis); Illinois v. Andreas, 463 U.S. 765 (1983); Illinois v. Lafayette, 462 U.S. 640 (1983); Illinois v. Gates, 462 U.S. 213 (1983)).

In the area of search and seizure, watching an Illinois court try to get a pro-defense decision affirmed by the U.S. Supreme Court is like watching Charlie Brown trying to kick a football held by Lucy Van Pelt.

Caballes is the latest reversal. The case began when State Trooper Daniel Gillette radioed the police dispatcher that he was stopping Roy I. Caballes for driving 71 mph in a 65-mph zone. Trooper Craig Graham heard this broadcast and immediately proceeded to the scene with a drug-sniffing dog.While Gillette was writing a warning ticket, Graham walked the dog around Caballes' car. The dog "alerted," indicating the possible presence of contraband, and the police recovered drugs from the trunk.

In finding that the use of the dog violated the Fourth Amendment, the Illinois Supreme Court relied on a series of cases in which it had established standards for evaluating the reasonableness of routine traffic stops. See, e.g., People v. Harris, 207 Ill.2d 515 (2003); People v. Gonzalez, 204 Ill.2d 220 (2003); People v. Cox, 202 Ill.2d 462 (2002).

The court had found that a traffic stop is limited by the dual inquiry of Terry v. Ohio, 392 U.S. 1 (1968). Terry first asks whether the officer's action in initiating the stop was justified; it then asks whether the officer's action during the stop was reasonably related in scope to the circumstances that justified the stop in the first place.

The "scope" inquiry depends on two factors: both the duration of the stop as well as the manner in which the stop is conducted. The scope requirement has been characterized as a "common-sense limitation on the power of law enforcement officers. ... It prevents police from transforming a limited traffic stop into a general inquisition." Harris, at 528, quoting U.S. v. Holt, 264 F.3d 1215, 1240 (10th Cir. 2001) (Murphy, J., concurring in part and dissenting in part).

Relying on this matrix, the Illinois Supreme Court held that the use of the drug-sniffing dog against Caballes improperly broadened the scope of the routine traffic stop. The court found that the police had absolutely no grounds for expanding a stop for speeding into an investigation for drugs. Therefore, the court suppressed the drugs found in the trunk.

The U.S. Supreme Court viewed the case from a much different perspective. In an opinion for six members of the court written by Justice John Paul Stevens, the court held that the use of the dog did not improperly expand the scope of the stop. First, it noted that even the Illinois Supreme Court did not contend that the "duration" of the stop was unjustified. And as to the "manner," it held that the dog sniff would be held unreasonable only if the sniff itself actually infringed Caballes' constitutionally protected interest in privacy.

Here the court relied on its decision in U.S. v. Place, 462 U.S. 696 (1983), which held that a dog sniff was "sui generis"; since it could only reveal the existence of contraband -- or not -- it infringed on no reasonable expectation of privacy and therefore could not be considered a "search." Thus, the court reversed the Illinois Supreme Court and found the dog sniff to be proper.

Why was this case even before the U.S. Supreme Court? As you know, a state appellate court may always insulate a pro-defense decision by simply basing its decision on an "adequate and independent state ground" -- such as its state constitution. The U.S. Supreme Court has held that as long as a state appellate court clearly and expressly predicates its ruling on state law, the U.S. Supreme Court is powerless to review the decision. Michigan v. Long, 463 U.S. 1032 (1983).

In none of the 10 cases did the Illinois courts even try to use "adequate and independent state grounds" to protect these pro-defense decisions. But the more chilling point is that they may not have been able to invoke the "adequate and independent state ground" doctrine even if they had wanted to do so.

This is because more than 20 years ago the Illinois Supreme Court announced that Article I, section 6 -- the search and seizure provision of the Illinois Constitution -- should ordinarily be interpreted in exactly the same way the U.S. Supreme Court interprets the Fourth Amendment. People v. Tisler, 469 N.E. 2d 147 (1984); People v. Lampitok, 798 N.E.2d 91, 99 (2003) (same).

This interpretive approach is known as "lockstep" -- meaning the state provision has no independent vitality but merely marches in lockstep behind the lead of the U.S. Supreme Court's interpretation of the analogous provision in the federal Bill of Rights.

Ordinarily, a state court can insulate a pro-defense provision from review by clearly and expressly predicating its decision on its own state law. Long, supra. But in the area of search and seizure, Illinois could not do this even if it wanted to. That is because by invoking lockstep it has forfeited the right to claim its ruling is really based on adequate and independent state grounds.

When a state court is not merely using federal cases for guidance, but rather concedes that the federal cases compel a certain result, then the U.S. Supreme Court has jurisdiction to review the state judgment. Fitzgerald v. Racing Association of Central Iowa, 539 U.S. 103 (2003); Pennsylvania v. Muniz, 496 U.S. 582, 588 n. 4 (1990); Michigan v. Long, 463 U.S. 1032 (1983).

Lockstep in the area of search and seizure has reduced the Illinois Supreme Court from having the final say on these issues, to being little more than the 12th Circuit Court of Appeals. In the last two decades, Illinois appellate decisions on search and seizure have been consistently reversed by the U.S. Supreme Court. During this period Illinois appellate courts have had a pro-defense search and seizure decision reversed on the average of once every two years.

Caballes may be the latest, but it will certainly not be the last.