Caballes: Despite dogged defense, Court endorses sniff search
Fourth Amendment/Dog sniffs: In Illinois v. Caballes, __ U.S. __, 2005 WL 123826 (Jan. 24, 2005), available here, the Supreme Court tolerates a drug dog sniff during part of a normal traffic stop.
Players: A drug dog and a speeding defendant.
Facts: A state trooper stopped Caballes for speeding. Illinois v. Caballes, __ U.S. __, 2005 WL 123826, *1 (Jan. 24, 2005). While the trooper was writing a ticket, a second trooper walked a drug car around the car. Id. The dog alerted to the trunk, and marijuana was found – the whole stop lasting less than twelve minutes. Id. Caballes was convicted and sentenced to twelve years in jail and a quarter-million dollar fine. Id.
Issue(s): "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Id.
Held: "[T]he use of a well-trained narcotics-detection dog – one that does not expose noncontraband items that otherwise would remain hidden from public view,– during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Id. at *3.
Of Note: Justice Souter offers a vigorous dissent, questioning the fallibility of narcotics dogs. Id. at *4. He explained that a drug dog is not a perfect machine that should automatically create sufficient cause for a search. Id. at *4-*5 (Souter, J., dissenting). Justice Ginsburg would reject walking the dog around the car as an improper expansion of a Terry stop. Id. at *8-*9 (Ginsburg, J., dissenting). She warns, correctly, "Today's decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots." Id. at *9.
How to Use: We can anticipate narcotic dogs in highway patrol cars now that the Supreme Court has given the green light in Caballes. Note that there seems to be some limitations in the majority’s decision. First, the majority seized on the fact that the defense did not challenge the accuracy of the dog (a challenge which could made in future cases). Moreover, the original (traffic) stop was conceded to be lawful (although the dissenters think, highly suspicious). Finally, the dog sniff did not lengthen the traffic stop – had it done so, the search might have violated Terry.
For Further Reading: Dogs have their own web page of controlling law; see here. This law enforcement site has an index of decisions relating to police dogs. There are a number of law enforcement pages on police dogs; one describes a sniff as "probable cause on a silver platter" and describes how to anticipate and counter defense challenges; see site here.
Jonathan Soglin has thoughtful additional analysis at his blog, available here. Of particular interest is his strategies for contesting dog sniffs in the trial courts.
Steven Kalar, Senior Litigator N.D. Cal.
Players: A drug dog and a speeding defendant.
Facts: A state trooper stopped Caballes for speeding. Illinois v. Caballes, __ U.S. __, 2005 WL 123826, *1 (Jan. 24, 2005). While the trooper was writing a ticket, a second trooper walked a drug car around the car. Id. The dog alerted to the trunk, and marijuana was found – the whole stop lasting less than twelve minutes. Id. Caballes was convicted and sentenced to twelve years in jail and a quarter-million dollar fine. Id.
Issue(s): "Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop." Id.
Held: "[T]he use of a well-trained narcotics-detection dog – one that does not expose noncontraband items that otherwise would remain hidden from public view,– during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Id. at *3.
Of Note: Justice Souter offers a vigorous dissent, questioning the fallibility of narcotics dogs. Id. at *4. He explained that a drug dog is not a perfect machine that should automatically create sufficient cause for a search. Id. at *4-*5 (Souter, J., dissenting). Justice Ginsburg would reject walking the dog around the car as an improper expansion of a Terry stop. Id. at *8-*9 (Ginsburg, J., dissenting). She warns, correctly, "Today's decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots." Id. at *9.
How to Use: We can anticipate narcotic dogs in highway patrol cars now that the Supreme Court has given the green light in Caballes. Note that there seems to be some limitations in the majority’s decision. First, the majority seized on the fact that the defense did not challenge the accuracy of the dog (a challenge which could made in future cases). Moreover, the original (traffic) stop was conceded to be lawful (although the dissenters think, highly suspicious). Finally, the dog sniff did not lengthen the traffic stop – had it done so, the search might have violated Terry.
For Further Reading: Dogs have their own web page of controlling law; see here. This law enforcement site has an index of decisions relating to police dogs. There are a number of law enforcement pages on police dogs; one describes a sniff as "probable cause on a silver platter" and describes how to anticipate and counter defense challenges; see site here.
Jonathan Soglin has thoughtful additional analysis at his blog, available here. Of particular interest is his strategies for contesting dog sniffs in the trial courts.
Steven Kalar, Senior Litigator N.D. Cal.
posted by Steve Kalar at 1/30/2005 04:45:00 PM
2 Comments:
I have some thoughts about Caballes and Steve Kalar's post in a post of my own today at my Criminal Appeal Web log.
Jonathan Soglin
It has happened! A federal appeals Court in Richmond, Virginia has held that the applying the federal sentencing guidelines after Booker is PLAIN ERROR, in other words an error so fundamental that the sentencing must be re-done in almost all cases which were sentenced after June 26, 2000.
See, * United States v. Hughes, ___ F.3d ____, 2005 WL 147059, 2005 U.S. App. LEXIS 1189(4th Cir. Jan. 24, 2005) (finding plain error in sentencing of defendant under mandatory guideline scheme and remanding for resentencing under advisory scheme)
Link: http://pacer.ca4.uscourts.gov/lastweek.htm
Mr. Hughes, a white collar criminal, was convicted of bankruptcy fraud and perjury, (traditionally considered white collar crimes). The District Court had applied five different enhancements, raising Mr. Hughes offense level from a 6 to a 22, and taking him from a range of 0-6 months imprisonment to 41 to 51 months. Ultimately the judge sentenced this white collar offender/criminal with no prior convictions to 46 months in prison.
The Fourth Circuit, a court not exactly known for its leniency to convicted criminals reversed. In a remarkable decision, the Court held that "PLAIN ERROR" had occurred. In other words, that the denial of Mr. Hughes's Sixth Amendment rights was so substantial that he could not be faulted for failing to object at the time of sentencing.
What does this all mean? The Plain Error ruling of the Fourth Circuit is huge in terms of impact of federal prisoners and specifically, white collar offenders. Many white collar offenders and other federal prisoners' lawyers failed to object at the time of sentencing to judges enhancing their sentences. (This is not meant to criticize those lawyers, it is reasonable to assert that no one could have seen the Apprendi/Booker revolution comming).
However, IF YOU ARE A FEDERAL DEFENDANT WHO WAS SENTENCED AFTER JUNE 26, 2000 IN A FEDERAL COURT IN MARYLAND, VIRGINIA, WEST VIRGINIA, NORTH CAROLINA, OR SOUTH CAROLINA, YOU ARE PROBABLY ENTITLED TO A RESENTENCING.
If you are a federal prisoner, the Hughes ruling can help in a very dramatic fashion. It can persuade a judge to give you another chance at sentencing, and it can help the judge reduce your sentence.
Mr. Chip Venie was a former Fourth Circuit Staff Attorney and is intimately familiar with the procedures for obtaining resentencing relief in that Court. In addition, Mr. Venie is a member of the Ninth Cicruit bar and can help you pursue your federal appeal in almost all western states. Mr. Venie has handled over 130 Federal Criminal Appeals and Habeas Petitions.
Chip Venie
chipesq@hotmail.com
(619) 235-8300
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