By now I am sure that loyal readers of this Blawg are familiar with the Cabellas decision, which held that a police do not have to have reasonable suspicion to conduct a drug dog sniff of a vehicle which has been properly stopped for a routine traffic stop (In the unlikely event that I am ever up for a judicial position, I freely admit to plagiarizing that statement from CrimProf Blog). The criminal blawgosphere is buzzing about how truly wretched this decision is. Here are comments from Grist for Breakfast, Skelly (who was kind enough to link to the PDF file), CrimLaw, Volokh, The Law Guy, The Agitator and Drug War Rant. I think that the comments of The Law Guy and Drug War Rant express my mood. Law Guy analogizes the decision to Giles Corey (if you do not know who that is, check out the post) and Drug War Rant wonders if this is the Justices pissing on the grave of the Fourth Amendment.
What I have not seen anybody say yet, and if it is out there, feel free to point me to the site or link, is how chilling this decision is when combined with Whren. For those who do not know, in Whren v. US, the Supreme Court held that the subjective intent of a police officer is irrelevant in determining the legality of a traffic stop. So, if a cop wants to stop you because you fit a 'drug courier profile', the cop just has to follow you long enough to make a minor traffic stop and then pull you over. With Cabellas, that cop can have a drug dog in his car and there is nothing you can do about it constitutionally.
The argument of the Supremes, that this is not an unreasonable interference with Cabellas' privacy interest, seems to me to be utter horseshit. There are some major problems with this theory. First, the idea of a reasonable expectation of privacy came about from Katz (at least I think it was Katz. Since being in AK, I cite to state law cases because they give so much better law). Katz was using a telephone to run an interstate gambling operation. The cops put a bug in the phone booth and the Supreme Court held that before they could do that, they needed a warrant because even in the telephone booth, Katz had a reasonable expectation of privacy. It would seem that if the cops had to show probable cause to record a conversation in a phone booth, they should have to show the same before running a drug dog around your car.
I also wonder how far the Supremes would push this. The opinion does not explicitly say but seems to suggest that Caballes consented to a search after the drug dogs hit on the trunk. What if he did not consent. Would the drug dog's reaction give probable cause? If it did, would the cops be able to hold Cabelles there at the scene until they got a search warrant? You know and I know the answers to those questions. I also wonder what the hell Stevens was thinking in writing this decision. He's supposed to be a liberal! Just goes to show that liberals and conservatives will screw the Constitution and us if they get the chance.
It's really hard to watch an amendment die a slow death a la Giles Corey. Sometimes I think it would be easier if we quit kidding around and just repealed it and declare by fiat that we have no privacy rights. That would make matters easier to decide cases and it would be a lot more honest than what we have right now. The sad part is that most of the people in this country would probably support that if it meant we got rid of the 'drug problem' or the 'pornography problem' or 'crime problem' or some sort of other problem. Unfortunately, we would then find that we have a huge 'government puts its damn nose into every crevice and orifice of our body problem', but by then, it would be too late.
