Vice Squad
Tuesday, February 01, 2005
The Good News in the Dog-Sniff Case

Well, missing nearly two weeks of blogospheric activity is proving irremediable. So much has happened in the vice policy world that I simply can't do it justice. I'll just mention in the next few days a few happenings that have now caught my attention. First, the dog sniff case.

On the surface, and maybe even deeper down, it looks as if the Supreme Court has dealt the Fourth Amendment another drug-related setback. Orin Kerr of the Volokh Conspiracy tells more. If you are not worried about the outcome in this case, Ken Lammers of Crim Law helps explain why you should be.

But here's the good news, as I see it: look at the precise holding: "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment." Specifically, "that no individual has any right to possess" -- what could that mean? There are some federally-licensed and supplied medical marijuana patients in the US! So even marijuana does not seem to fit within the holding, although it was a marijuana bust. But more specifically, any drug with an accepted research or medical use -- cocaine, or ecstasy, for instance -- could be distinguished. As it reads, the holding specifically applies only to schedule 1 drugs that are not licensed for research purposes. So it may be that there is some hope that this case will not lead to carte blanche for unwarranted dog sniffs.

Incidentally, a query to legal types: the Chief Justice, we are told, "took no part in the decision of this case". Now does this mean that Justice Stevens assigned the authorship of the opinion of the Court? And is it possible that he voted with the majority for strategic purposes, so that he could assign the opinion to himself, and then produce a not very well-argued, and possibly quite narrow decision? Oh no, I have become a conspiracy theorist! I did hear that one of the side effects of that anti-malarial medicine I was taking in Senegal was paranoia.

Even if there is no good news here, and the Supremes have concluded such unwarranted sniffs are not unconstitutional, that's not the end of the story. Now is the time for the Illinois State legislature to step into the breach, and to make it illegal to use a dog sniff absent reasonable suspicion or some tougher standard.

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