Washing the Fourth Amendment Away

Erosion is a subtle process. In the course of a year a beach may lose a minuscule amount of sand that is hardly worth noticing. Yet if that process continues unabated for years, the beach eventually disappears.

Something similar is happening to Fourth Amendment rights in Illinois, especially in the context of automobile searches. The latest example is a case from the 4th District Appellate Court, People v. Bartelt, 894 N.E.2d 482 (2008), defense leave to appeal granted Nov. 26, No. 107276. It deals with the use of a drug-sniffing dog during a vehicle stop.

First, some background.

In 2003, the Illinois Supreme Court examined the use of drug-sniffing dogs in People v. Caballes, 207 Ill.2d 504 (2003) (''Caballes I''). There the state police, without any reasonable suspicion that drugs were present, used a drug-sniffing dog during a traffic stop for speeding. The dog alerted and drugs were found in the car. The Illinois Supreme Court suppressed the drugs. It began its analysis by conceding that the dog sniff itself was not a ''search'' under the Fourth Amendment. But the ''scope'' of a traffic stop must be restricted by both the ''duration'' and the ''manner'' of the stop. The court conceded that the dog sniff did not improperly increase the ''duration'' of the stop. But the problem was the ''manner'' of the stop: the police could provide absolutely no reason why they shifted their interest from the speeding charge to whether the car contained drugs. Therefore, the use of the dog meant that the police activity impermissibly changed the ''manner'' of the stop from a focus on speeding to a focus on drugs. Because the police thus improperly expanded the ''scope'' of the stop, the court suppressed the drugs.

The U.S. Supreme Court reversed. Illinois v. Caballes, 543 U.S. 405 (2005). First, the court held that in considering the proper scope of the stop ''manner'' was irrelevant; the only relevant consideration was ''duration.'' Since the dog sniff was not a search and it did not improperly extend the ''duration'' of the stop, it was proper.

On remand, the Illinois Supreme Court simply acquiesced in the U.S. Supreme Court's decision and held for the prosecution. People v. Caballes, 221 Ill.2d 282 (2006) ('' Caballes II'').

The Bartelt case is another dog sniff of a vehicle where the police conceded they did not have probable cause for a drug search. The twist here is that the police ordered the driver to actually aid the dog in sniffing for drugs. They did this by telling Cheryl L. Bartelt to roll up the windows of her car and to turn the blower on ''high.'' The officer testified that this was presented to Bartelt as an order, not an option. The dog thus sniffed air that was being blown out of the interior of the car. After the dog alerted, a search of the car uncovered contraband drugs.

The trial judge granted the defense motion to suppress. He ruled that ordering the air in the car to be blown outside was the functional equivalent of allowing the dog to actually enter the car. Since the police lacked probable cause for such an entry, the drugs were suppressed.

The 4th District reversed in a 2-1 decision. The majority noted that it would have been proper to make the driver open the door and exit the car. See Pennsylvania v. Mimms, 434 U.S. 106 (1977). Thus, the court concluded that the use of the blower only means that the driver is being asked to expose a little more air than opening the door would expose. The court concluded that this was reasonable under the Fourth Amendment.

The most disturbing aspect of the case is that neither the majority nor the dissent cited a recent U.S. Supreme Court case that is relevant to the issue. Instead, the majority cited two federal cases that the 5th U.S. Circuit Court of Appeals decided in the 1980s that held that it was proper for DEA agents to squeeze the air out of bags in order facilitate dog sniff tests.

Yet the majority failed to even mention Bond v. U.S., 529 U.S. 334 (2000). In that case, federal agents walked through a Greyhound bus and randomly squeezed the soft luggage that passengers had placed in the overhead storage spaces. One agent felt a brick-like object in a bag, received consent from the owner to open it, and proceeded to find contraband drugs. The government argued that the squeezing was not an illegal search because it was no different from the kind of handling that one would expect from strangers while traveling.

The U.S. Supreme Court held for the defense in an opinion written by Chief Justice William H. Rehnquist. The court characterized the squeezing as ''physical invasive inspection,'' as opposed to purely visual inspection. Although a passenger expects that his bag while in transit may be handled in some way, he does not expect that others will ''feel the bag in an exploratory manner.'' The government's behavior violated the Fourth Amendment.

Government agents need probable cause to search either a bag or a car. The government's actions in forcing Bartelt to aid in their exploration of the air in the car could certainly be analogized to the exploration of the bags condemned in Bond. But even putting Bond aside, Bartelt is another example of the inexorable chipping away of Fourth Amendment rights in Illinois. As illustrated above, in just five years we have not only gone from forbidding the automatic use of dog sniffs during traffic stops to allowing them; now Bartelt holds that drivers can actually be forced to assist officers in conducting dog sniffs of their cars without any showing of either probable cause or reasonable suspicion.

Where does it end?

A recent case from the Court of Appeals of New Mexico suggests one way out. State v. Ochoa, No. 24,720 (Nov. 3).

Obviously, traffic stops can be simply pretexts for investigations based on mere hunches. And the U.S. Supreme Court has held that pretextual traffic stops are not prohibited by the Fourth Amendment. See Whren v. U.S., 517 U.S. 806 (1996). Yet in Ochoa a fed-up court held that the Whren analysis was not only ''unpersuasive,'' but also ''incompatible'' with New Mexico's protective standards for searches and seizures of automobiles. In its place, the court instituted a totality-ofcircumstances test to ferret out those traffic stops that are mere subterfuges for hunches not supported by probable cause.

So can Illinois follow New Mexico's example? Unfortunately, the Illinois Supreme Court has shackled itself through the so-called ''limited lockstep'' doctrine from critically examining most U.S. Supreme Court precedent in the area of search and seizure. See Caballes II. Yet hope springs eternal. On Nov. 26, the Illinois Supreme Court granted leave to appeal in Bartelt. Thus, there is a chance that the court may at least hold that the police cannot arbitrarily order a driver to act to make Fido's job easier.