January 26, 2005

Cabela's good, Caballes bad, Caballes+Whren very, very bad

From Alaska, where the right to be left alone is sacred, Alaskablawg spells out just how bad the prognosis is for the Fourth Amendment once you read Caballes in light of earlier precedent:

What I have not seen anybody say yet... is how chilling this decision is when combined with Whren. ...(I)n 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.

This essentially has been SOP for patrol officers who've happened to have a canine companion riding along when they've made a pretext stop. When you already have a dog on board, it doesn't take much more time during the traffic stop to walk the K-9 around the outside of the car you've pulled over. Once the dog indicates, you order the occupants out and let the dog in. In the past I'd been successful (PDF file) arguing against the delay in bringing a drug dog to the scene, but that'll be remedied easily enough, I imagine, by assigning K-9's to all patrol vehicles. In a few years' time, it'll be hard to remember when it wasn't perfectly routine for a speeding ticket to come with a thorough canine sniffing of your car.

In such subtle and undramatic ways does our freedom erode. Now, can somebody tell me why after reading our northern colleague's post, I feel a such powerful subliminal urge to stock up on outdoor gear at ?

1 Comment:

Gritsforbreakfast said...

That's pretty fancy lawyering. I don't know the state case law, but in Texas that wait-for-the-dog stuff is SOP and makes a lot of reluctant people consent to searches. In fact, we've got 40+ drug task forces (like the one in the Tulia case) that don't even give tickets at 98% of traffic stops -- they're just pure pretext to pull folks over and ask consent to search. None of those guys have more than one dog per task force. Sometimes there isn't a dog and they just say it to pressure consent.

Thanks for plugging Grits' posts on this, BTW. Best,