Amicus Curiae Brief — Illinois v. Caballes

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“Supreme Coun, U.S.

p corl Fiteo

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JUN 29 2004

No. 03-923 | OFFICE OF THE CLERK |

In the Supreme Court of the Gnited States

CORRECT

STATE OF ILLINOIS, PETITIONER

Vv.

Roy I. CABALLES

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

THEODORE B. OLSON

Solicitor General

Counsel of Record

CHRISTOPHER A. WRAY

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

JOHN A. DRENNAN

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Fourth Amendment requires reason-

able, articulable suspicion to justify using a drug-detec-

tion dog to sniff a vehicle during a legitimate traffic

stop.

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 2

Summary of argument 5

Argument:

A dog sniff during the course of a lawful traffic

stop is valid under the Fourth Amendment without

any requirement of reasonable suspicion 8

A. The seizure of respondent was supported by

probable cause and therefore permissible ................. 8

' B. The dog sniff of respondent’s car was not a

“search” under the Fourth Amendment 9

C. The dog sniff did not render the manner of

conducting the seizure unreasonable 12

D. The dog sniff did not convert the traffic stop

in this case into an impermissible Terry stop ............ 14

1. The traffic stop was not subject to the

limitations of a Terry stop 14

2. Even viewed as a Terry stop, the stop here

was permissible 17

Conclusion 22

TABLE OF AUTHORITIES

Cases:

Atwater v. City of Lago Vista, 532 U.S. 318

(2001) 13

Berkemer v. McCarty, 468 U.S. 420 (1984) ......cccccccseseees 15

California v. Carney, 471 U.S. 386 (1985) .. 12

City of Indianapolis v. Edmond, 531 U.S. 32

(2000) 5, 6, 10, 13

Colorado v. Banister, 449 U.S. 1 (1981) _ 19

Dow Chemical Co. v. United States, 476 U.S. 227

(1986) 12

Florida v. Bostick, 501 U.S. 429 (1991) ......cccccccccccceeeeeeneee .

(IIT)

Cases—Continued: Page

Hiibel v. Sixth Judicial Dist. Ct. of Nev., No. 03-5554

(June 21, 2004) ... 14, 18

Horton v. California, 496 U.S. 128 (1990) 8

Iilinois v. Lidster, 1248. Ct. 885 (2004) . 11-12

Knowles v. lowa, 525 U.S. 113 (1998) 17, 19

Kyllo v. United States, 533 U.S. 27 (2001) 11

Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995),

cert. denied, 519 U.S. 812 (1996)... 12

Michigan v. Long, 463 U.S. 1032 (1983) = , 16

Michigan v. Summers, 452 U.S. 692 (1981) ...ccccccccseeneees 15

Miranda vy. Arizona, 384 U.S. 436 (1966) 0... cccccceeeeeee 15

Muehler v. Mena, cert. granted, No. 03-1423

Se Ne 15

New York v. Class, 475 U.S. 106 (1986) ..0......ccccccceeeeeeeeees 11

Pennsylvania v. Mimms, 434 U.S. 106 (1977) «0.0.0... 16

People v. Cox, 782 N.E.2d 275 (Ill. 2002), cert. denied,

SDS, Ca, SUDO GIIIED cccecrrnneiensnetpiesrectemntntcianicsniauiiiinanas 4.14

Tennessee v. Garner, 471 U.S. 1 (1985) ......................000000. 13

Terry V. Ohio, 392 U.S. 1 (19GB) .......cccccccccssesssssesssesesees 4, 6,17

United States v. $404,905.00 in U.S. Currency,

182 F.3d 643 (Sth Cir. 1999), cert. denied, 528 U.S.

See GREED ensenecmnsmannemennintsmeinetentinmensteeniaie 15, 21

United States v. Brignoni-Ponce, 422 U.S. 873

| 17, 18

lwited States v. Childs, 277 F 3d 497 (7th Cir.).

cert. denied, 537 U.S. $23 (2OOZ) ..........cccccsseersenseereennsees 15, 20

lnited States v. Holt, 264 F.3d 1215 (10th Cir.

EEUU ccuntemennenmenennbianenabitiininesiiesattiaiiiinaeeiaas 15

l'nited States v. Jacobsen, 466 U.S. 109 (1984) .......... 8,9, 10

l'nited States v. Morales-Zamora, 914 F.2d 200

GER TED ccrsssrrenceeeseemeatissiniiadinnantinsiiianiaaials 12

lnited States v. Morga n, 270 F.3d 625 (sth Cir.),

cert. denied, 537 U.S. 849 (QOOZ) .00.........ccceccsrseeeenseescsesenees 21

United States v. Place, 462 U.S. 696 (1983) ................ 5, 6, 9,

10, 17, 19, 21

A eet

Cases—Continued: Page

United States v. Purcell, 236 F.3d 1274 (11th Cir.),

cert. denied, 534 U.S. 830 (2001) 20, 21

United States v. Rodriguez-Morales, 929 F.2d 780

(1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992) ............ 12

United States v. Seals, 987 F.2d 1102 (5th Cir.

Cir.), cert. denied, 510 U.S. 853 (1993) 12

United States v. Shabazz, 993 F.2d 431 (5th Cir.

1993) 21

United States v . Sharpe, 470 U.S. 675 (1985) 000008 17,21

United States v. Villamonte-Marquez, 462 U.S.

579 (1983) 19

Welsh v. Wisconsin, 466 U.S. 740 (1984) 13

Whren v. United States, 517 U.S. 806 (1996) .......... - 8,13,19

Wilson v. Arkansas, 514 U.S. 927 (1995) 13

Winston v. Lee, 470 U.S. 753 (1985) 13

Wyoming v. Houghton, 526 U.S. 295 (1999) 12

Constitution and statute:

U.S. Const. Amend. IV passim

720 Ill. Comp. Stat. Ann. § 550/5.1(a) (West 1998) .............. 3

In the Supreme Court of the Anited States

No. 03-923

STATE OF ILLINOIS, PETITIONER

Roy I. CABALLES

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether officers

must have reasonable, articulable suspicion of a narcot-

ics crime before having a dog sniff a car to determine

the presence of narcotics during the course of a legiti-

mate traffic stop. Because the United States uses

trained canines to detect concealed weapons and per-

sons in stopped vehicles, and because the government

prosecutes cases in which evidence from dog-sniff tests

is developed by state authorities, the Court’s resolution

of that question will affect federal criminal investiga-

tions and prosecutions.

(1)

STATEMENT

1. On November 12, 1998, at approximately 5 p.m.,

Illinois State Trooper Daniel Gillette stopped re-

spondent on Interstate Route 80 in La Salle County,

Illinois, for driving 71 miles per hour in a 65 mile per

hour zone. Gillette radioed the police dispatcher to say

that he was making the stop and to ask for a check on

respondent’s license plates. Hearing the radio trans-

mission, a second trooper, Craig Graham, departed for

the scene with his drug-detection dog. Pet. App. 1a,

12a.

Once Gille*te pulled over respondent’s vehicle, he in-

formed respondent that he had been speeding and

asked to see his driver’s license, vehicle registration,

and proof of insurance. Respondent complied. Gillette

noticed an atlas on the front seat, an open ashtray, the

smell of air freshener, and a pair of suits hanging in the

back without any other luggage. Gillette told respon-

dent to reposition his vehicle out of traffic on the shoul-

der of the road and then to come back to the police car.

After both vehicles were moved away from traffic, re-

spondent entered the patrol car and was told by Gillette

that he would be receiving a warning ticket. Gillette

then radioed the police dispatcher to check on the va-

lidity of respondent’s driver’s license and to check for

outstanding warrants. Pet. App. 2a, 12a.

While waiting to hear back from the dispatcher, Gil-

lette asked respondent about his destination and what

Gillette had observed was respondent’s “dressed up”

attire. Respondent replied that he was moving from

Las Vegas to Chicago, and that he was dressed up be-

cause he was a salesman, although currently unem-

ployed. Respondent was nervous and continued to be

nervous even after being told that he would be issued

only a warning, which Gillette found unusual. Pet. App.

2a, 12a-13a.

At 5:09:58, the dispatcher advised Gillette that re-

spondent had surrendered a valid Illinois driver’s li-

cense to Nevada and, at 5:11:58, the dispatcher con-

firmed the validity of respondent’s Nevada driver’s li-

cense. Gillette immediately requested respondent’s

criminal history from the dispatcher. Gillette next re-

quested respondent’s permission to search his vehicie,

but respondent refused. Gillette asked whether re-

spondent had ever been arrested, and respondent said

that he had not. At 5:12:42, the dispatcher advised Gil-

lette that respondent had two prior arrests for mari-

juana distribution. Gillette began to write the warning

ticket. While writing the ticket, Gillette was inter-

rupted by another officer calling him on the radio about

an unrelated matter. Pet. App. 2a, 13a, 17a n.1.

Also during the time Gillette was writing the ticket,

Trooper Graham arrived and started walking his dog

around respondent’s vehicle. At approximately 5:13,

while Gillette was still writing the ticket, Graham in-

formed Gillette that the dog alerted at respondent’s

trunk. Gillette then searched the trunk and found mari-

juana. At 5:15, Gillette changed the activity code for

the stop to a narcotics investigation. Respondent was

arrested and taken to the police station. Pet. App. 3a,

13a, 24a.

2. Respondent was charged with one count of caz-

nabis trafficking, in violation of 720 Ill. Comp. Stat.

Ann. 550/5.1(a) (West 1998). He filed a motion to sup-

press the seized drug evidence and to quash the arrest.

The trial court denied the motion and, after a stipulated

bench trial, found respondent guilty. The court sen-

tenced him to 12 years of imprisonment and a $256,136

fine. Pet. App. 3a, 13a-14a.

3. The Appellate Court of Illinois affirmed. Pet.

App. lla-19a. The court rejected respondent’s argu-

ment that the delay occasioned by Officer Gillette’s re-

quest for a criminal-history check on respondent—the

44-second period between the time the dispatcher con-

firmed the validity of respondent’s Nevada driver's

license and the time Gillette received respondent's

criminal historvy—unreasonably extended the period of

the detention. /d. at 16a-17a. The court held that the

delay was “de minimis,” and that it “was not an unrea-

sonable delay under the totality of the circumstances.”

Id. at 17a. The court further held that the police did not

need reasonable suspicion to justify the canine sniff. Jd.

at 5a, 18a n.2.

4. a. The Supreme Court of Illinois reversed by a 4-

3 vote. Pet. App. la-6a. The court held that, although

the traffic stop in this case was based on probable

cause, the reasonableness of the stop had to be deter-

mined under the “principles” of Terry v. Ohio, 392 U.S.

1 (1968). Pet. App. 3a-4a. The majority relied on its

earlier decision in People v. Cow, 782 N.E. 2d 275, 280

(Ill. 2002), cert. denied, 12% S. Ct. 2574 (2003), in which

it had held that the police had impermissibly extended

both the duration and the scope of a traffic stop by

using a drug-sniffing dog that arrived on the scene 15

minutes after the initial detention. /bid. The Cox court

concluded that the police erred because they “did not

have ‘specific and articulable facts which, taken

together with rational inferences therefrom,’ reason-

ably warranted an extended detention of defendant’s

vehicle, and the ensuing drug-sniff test.” /d. at 281.

In this case, the court concluded that, although it was

undisputed that the traffic stop was properly initiated,

“the police impermissibly broadened the scope of the

traffic stop * * * into a drug investigation because

there were no specific and articulable facts to support

the use of a canine sniff.” Pet. App. 4a-5a. In particu-

lar, the majority stated that “(t]he police did not detect

the odor of marijuana in the car or note any other evi-

dence suggesting the presence of illegal drugs.” Jd. at

4a. The majority added that the trooper’s observations

concerning respondent—that he said he was moving

from one state to another but had little visible luggage;

that the car smelled of air freshener; that he was

dressed for business but was driving across the country

while unemployed; and that he seemed unusually nerv-

ous—were insufficient viewed singularly or collectively

to “support a canine sniff.” Jd. at 5a.

b. Justice Thomas filed a dissenting opinion. Pet.

App. 6a-10a. He argued that Cowx’s conclusion that the

police may not conduct a dog sniff of a vehicle absent

reasonable suspicion was dicta that conflicts with this

Court’s decisions holding that a canine sniff is not a

search and that walking a narcotics-detection dog

around the exterior of a vehicle does not transform a

legitimate seizure of a vehicle into a search. Jd. at 7a

(citing United States v. Place, 462 U.S. 696, 707 (1983),

and City of Indianapolis v. Edmond, 531 U.S. 32

(2000)). The dissent argued that if a dog sniff were in

fact a search, the majority’s conclusion that the search

was permissible on the basis of reasonable suspicion

was in error because probable cause is required to con-

duct a warrantless search of a vehicle. Jd. at 9a-10a.

SUMMARY OF ARGUMENT

The traffic stop of respondent, including the dog sniff,

was not an unreasonable search or seizure under the

Fourth Amendment. Although the traffic stop was un-

doubtedly a “seizure” of respondent, it was constitu-

tionally valid because it was supported by probable

cause to believe that respondent had violated state traf-

fic laws. And there was no unreasonable “search” in

this case, because this Court’s cases establish that a dog

sniff of a vehicle is not a search under the Fourth

Amendment at all. As the Court has explained in

United States v. Place, 462 U.S. 696 (1983), and City of

Indianapolis v. Edmond, 531 U.S. 32 (2000), a dog sniff

does not intrude upon legitimate expectations of pri-

vacy because it does not invade a protected place, it re-

veals only very limited information about the presence

of contraband drugs, and it does not cause undue em-

barrassment or inconvenience. That conclusion is rein-

forced when the dog sniff is directed toward a vehicle,

which this Court has long recognized is the subject of a

diminished expectation of privacy.

Nor did the manner of conducting the seizure in this

case render it unreasonable under the Fourth Amend-

ment. A search anc seizure that is conducted in such a

Way as to make an exceptional intrusion into privacy or

property interests protected by the Fourth Amend-

ment may be found to be unreasonable. But, precisely

because a dog sniff does not intrude into privacy or

property interests protected by the Fourth Amend-

ment, its use during an otherwise reasonable traffic

stop cannot convert the stop into an unreasonable

search or seizure under the Fourth Amendment.

The Illinois Supreme Court held that the permissible

scope of the traffic stop in this case was governed by

the principles of Terry v. Ohio, supra, and it held that

the dog sniff unjustifiably broadened that scope by con-

verting the stop into a drug investigation without rea-

sonable suspicion. The traffic stop in this case, how-

ever, Was a probable-cause stop based on an observed

violation of law, not a reasonable-suspicion stop subject

to the scope limitations of Terry. Accordingly, the rea-

sonableness of the stop does not depend on whether it

satisfies the scope limitations of the Terry doctrine.

Even if viewed as a Terry stop, the traffic stop in this

case would satisfy Fourth Amendment standards. In

conducting a Terry stop, law enforcement agents may

intrude on privacy and property interests protected by

the Fourth Amendment only insofar as is reasonable to

confirm or dispel their reasonable suspicions. Under

Place and Edmond, however, the dog sniff of respon-

dent’s vehicle did not intrude on respondent’s legiti-

mate expectations of privacy or on his property inter-

ests at all. Contrary to the Illinois Supreme Court’s

view, the fact that law enforcement agents during a

traffic stop may engage in conduct, such as a dog sniff,

that does not intrude on protected Fourth Amendment

interests does not broaden the scope of the stop. Even

if viewed as a Terry stop, therefore, the stop in this

case was not unreasonably broad.

Respondents have argued that the traffic stop in this

case was unconstitutional because its duration was un-

reasonably extended. The Illinois Supreme Court, how-

ever, did not examine the duration of the traffic stop

in this case, and that court’s recitation of the facts

establishes, to the contrary, that the dog sniff did not

extend the duration of the stop. The entire stop, from

inception to the time the marijuana was discovered,

took less than nine minutes, well within the reasonable

time period for a routine traffic stop.

ARGUMENT

A DOG SNIFF DURING THE COURSE OF A LAW-

FUL TRAFFIC STOP IS VALID UNDER THE

FOURTH AMENDMENT WITHOUT ANY REQUIRE-

MENT OF REASONABLE SUSPICION

The Fourth Amendment’s prohibition on the viola-

tion of the “right of the people to be secure in their per-

sons, houses, papers and effects, against unreasonable

searches and seizures,” U.S. Const. Amend. IV, serves

to protect “two types of expectations, one involving

‘searches, the other ‘seizures.’ A ‘search’ occurs when

an expectation of privacy that society is prepared to

consider reasonable is infringed.” See United States v.

Jacobsen, 466 U.S. 109, 112 (1984). “[A] seizure de-

prives the individual of dominion over his or her person

or property.” Horton v. California, 496 U.S. 128, 133

(1990); see Florida v. Bostick, 501 U.S. 429, 434 (1991).

Because the dog sniff of respondent’s car was neither

an unreasonable search nor an unreasonable seizure, it

did not violate the Fourth Amendment.

A. The Seizure Of Respondent Was Supported By Probable

Cause And Therefore Permissible

Respondent was undoubtedly “seized” under the

Fourth Amendment when he was stopped for a traffic

violation, but that seizure was permissible. As this

Court has explained, “[t]Jemporary detention of indi-

viduals during the stop of an automobile by the police,

even if only for a brief period and for a limited purpose,

constitutes a ‘seizure’ of ‘persons’ within the meaning

of” the Fourth Amendment. Whren v. United States,

517 U.S. 806, 809-810 (1996). But “(t]he decision to stop

an automobile is reasonable where the police have

probable cause to believe that a traffic violation has oc-

curred.” Jd. at 810. In this case, Trooper Gillette him-

self observed respondent exceeding the speed limit.

Pet. App. la, 12a. Accordingly, he had probable cause

to stop the vehicle. The resulting seizure of respondent

and the vehicle was reasonable, and therefore permissi-

ble, under the Fourth Amendment.

B. The Dog Sniff Of Respondent's Car Was Not A “Search”

Under The Fourth Amendment

There was also no unreasonable “search” in this case,

because the dog sniff of respondent’s car is not a

“search” under the Fourth Amendment at all. Al-

though respondent may have expected that the mari-

juana in his car would not be discovered, “(t]he concept

of an interest in privacy that society is prepared to rec-

ognize as reasonable is, by its very nature, critically dif-

ferent from the mere expectation, however well justi-

fied, that certain facts will not come to the attention of

authorities.” United States v. Jacobsen, 466 U.S. 109,

122 (1984). This Court’s cases establish that, hecause a

dog sniff of a vehicle does not interfere with a legiti-

mate expectation of privacy under the Fourth Amend-

ment, the dog sniff of respondent’s vehicle was not a

“search” subject to the Amendment’s requirements.

1. In United States v. Place, 462 U.S. 696 (1983),

agents arranged for a narcotics detection dog to sniff a

suitcase that they had seized at an airport. The Court

noted that “if this investigative procedure is itself a

search requiring probable cause, the initial seizure of

respondent’s luggage for the purpose of subjecting it to

the sniff test * * * could not be justified on less than

probable cause.” Jd. at 706. The Court held, however,

that probable cause was unnecessary, because “the par-

ticular course of investigation that the agents intended

to pursue here—exposure of respondent’s luggage,

which was located in a public place, to a trained ca-

nine—did not constitute a ‘search’ within the meaning

of the Fourth Amendment.” /d. at 707.

The Court reached that conclusion based on an analy-

sis of the particular features of a dog sniff. The Court

recognized that “a person possesses a privacy interest

in the contents of personal luggage that is protected by

the Fourth Amendment.” 462 U.S. at 707. But a canine

sniff “does not require opening the luggage,” it “does

not expose noncontraband items that otherwise would

remain hidden from public view,” and it “discloses only

the presence or absence of narcotics, a contraband

item.” Jbid. Moreover, it does not cause “the embar-

rassment and inconvenience entailed in less discrimi-

nate and more intrusive investigative methods.” /bid.

Because the canine sniff “is so limited both in the man-

ner in which the information is obtained and in the con-

tent of the information revealed by the procedure,” the

Court concluded that it was not a search under the

Fourth Amendment. Jhid; see Jacobsen, 466 U.S. at

123 (citing Place and holding that chemical test “that

can reveal whether a substance is cocaine, and no other

arguably ‘private’ fact, compromises no legitimate pri-

vacy interest”).

2. In City of Indianapolis v. Edmond, 531 U.S. 32

(2000), the Court applied that reasoning to a dog sniff of

a car conducted, as here, without any individualized

suspicion. In Edmond, police officers set up a traffic

checkpoint to interdict unlawful drugs, and dog sniffs

were performed on cars stopped at the checkpoint. /d.

at 35. The Court held that the checkpoint constituted a

seizure under the Fourth Amendment, which the Court

ultimately held to be unconstitutional because not ac-

companied by some measure of individualized suspicion.

Id. at 41. But the Court expressly rejected the argu-

ment that the dog sniff was a search subject to Fourth

Amendment standards. To the contrary, the Court held

that “[t}he fact that officers walk a narcotics-detection

dog around the exterior of each car * * * does not

transform the seizure into a search.” /d. at 40 (citing

Place). That is because “an exterior sniff of an automo-

bile does not require entry into the car and is not de-

signed to disclose any information other than the pres-

ence or absence of narcotics.” [bid.'

3. Under Place and Edmond, the dog sniff of the car

in this case is not a Fourth Amendment “search.” As in

those cases, the dog sniff did not intrude into the

interior of the item searched, it did not reveal non-

contraband items not ordinarily exposed to public view,

it provided only limited information about the presence

of contraband drugs, and it did not cause the owner em-

barrassment or even inconvenience. That is sufficient

to establish that, just as in Place or Edmond, the

Fourth Amendment does not require police officers to

have an independent justification, in the form of par-

ticularized suspicion, before having a dog sniff a motor

vehicle during the course of a lawful traffic stop.

That conclusion is reinforced by this Court’s long

“recognil[tion] that the physical characteristics of an

automobile and its use result in a lessened expectation

of privacy therein.” New York v. Class, 475 U.S. 106,

112 (1986); see J//inois v. Lidster, 124 5S. Ct. 885, 889

' This Court's holding in AKyl/o v. United States, 533 U.S. 27

(2001), that use of a thermal-imaging device to detect the heat

radiating from a house was a “search” under the Fourth Amend-

ment is not to the contrary, both because Ay//o involved the

“interior of the home,” id. at 34, an area where “privacy expecta-

tions are most heightened,” id. at 33, and because Ay//o involved

the use of technology that did not merely reveal the presence of

contraband, see id. at 35-36.

(2004); Wyoming v. Houghton, 526 U.S, 295, 308 (1999);

California v. Carney, 471 U.S. 386, 391-392 (1985).

Cars are used on public streets and are subject to per-

Vasive governmental regulation. The car in this case

Was stationed on the side of a public highway when the

dog sniff took place. Car owners do not have a reason-

able expectation that they could prevent dogs from

sniffing their vehicles located on public streets. Cf.

Dow Chemical Co. v. United States, 476 U.S. 227, 238

(1986). For that reason, too, a dog sniff does not consti-

tute a “search” under the Fourth Amendment and does

not require an independent justification.”

C. The Dog Sniff Did Not Render The Manner Of Conduct-

ing The Seizure Unreasonable

Even a search or seizure that is reasenable at its in-

ception may be conducted in such a fashion as to violate

- The courts of appeals have generally agreed that, because a

dog sniff is not a search, a dog sniff on the exterior of a stopped

vehicle need not be justified by a showing of reasonable suspicion

that the sniff will uncover evidence of illegal activity. See Merrett

Vv. Moore, 5s F.3d 1547, 1558 11th Cir. 1995) (rejecting argument

that the use of dogs to sniff the exterior of cars at a roadblock

without an individualized reasonable suspicion of drug-related

criminal activity amounted to an unconstitutional search), cert.

denied, 519 U.S. 812 (1996); United States v. Seals, 987 F.2d 1102.

11) (oth Cir.) (“We hold that the dog sniff, under these circum-

stances, Is not a ‘search’ within the meaning of the Fourth Amend-

ment and therefore an individualized reasonable suspicion of drug-

related criminal activity is not required when the dog sniff is

employed during a lawful seizure of the vehicle.”), cert. denied, 510

LUS. 853 (1903): lwited States vy. Rodriquez-Morales, 929 F 2d 780,

7Se-7TSY (Ist Cir. 1991) (distinguishing earlier case and holding that

“ls jo long as the automobile is lawfully impounded, the canine sniff

test can be performed without any showing of reasonable sus-

picion”), cert. denied, 502 U.S. 1080 (1992); United States v.

Morales-Zamora, WA F 2d 200, 208 (10th Cir. 1990).

the Fourth Amendment. Where a search or seizure is

“conducted in an extraordinary manner, unusually

harmful to an individual's privacy or even physical in-

terests,” the Fourth Amendment requires a balancing

of interests to determine whether the search or seizure

was nonetheless “reasonable.” Whren v. United States,

517 U.S. 806, 819 (1996). “(T]he question whether a

search or seizure is ‘extraordinary’ turns, above all else,

on the manner in which the search or seizure is exe-

cuted.” Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001). As examples of cases in which such a further

inquiry into the manner of conducting a search is neces-

sary, the Court in Atwater and Whren listed seizure by

means of deadly force, see Texnessee v. Garner, 471

U.S. 1 (1985); unannounced entry into a home; see Wi/-

son Vv. Arkansas, 514 U.S. 927 (1995), entry into a home

without a warrant; see We/sh v. Wisconsin, 466 U.S.

740 (1984); and physical penetration of the body, see

Winston v. Lee, 470 U.S. 753 (1985). See also Atwater,

532 U.S. at 354; Whren, 517 U.S. at 818.

Where a search or seizure does not involve such an

exceptional degree of intrusion into privacy or physical

interests protected by the Fourth Amendment, no spe-

cial inquiry into the manner of conducting a search or

seizure is necessary. That is the case here, because a

dog sniff does not constitute such an exceptional intru-

sion. This Court has made clear that a dog sniff of a ve-

hicle is not a “search” at all. See City of Indianapolis v.

Edmond, supra. It follows that a dog sniff cannot be an

exceptional intrusion into constitutionally protected

privacy interests. Nor does a dog sniff involve any in-

trusion on the owner's protected interests in dominion

over his or her person or property. Accordingly, the

fact that a dog sniff is conducted during a traffic stop

does not call into question the manner of conducting the

stop, and it therefore does not suggest that the stop has

become “unreasonable” under the Fourth Amendment.

D. The Dog Sniff Did Not Convert The Traffic Stop In This

Case Into An Impermissible Terry Stop

The Illinois Supreme Court determined that it must

apply the “test adopted in Terry v. Ohio * * * to de-

termine the overall reasonableness of the stop” in this

case. Pet. App. 3a. Applying Terry, the court con-

cluded that the dog sniff “impermissibly broadened the

scope of the traffic stop in this case into a drug investi-

gation because there were no specific and articulable

facts to support the use of a canine sniff.” Jd. at 4a-5a

(citing People v. Cor, 782 N.E.2d 275, 280 (Ill. 2002),

cert. denied, 123 S. Ct. 2574 (2003)). The court erred

because the traffic stop in this case was not a

reasonable-suspicion Terry stop and because, even if

the principles of Terry governed, the stop in this case

would have been permissible.

1. The traffic stop was not subject to the limitations of a

Terry stop.

a. The traffic stop in this case was not a Terry stop,

and it was not subject to the limitations applicable to

the scope of such scops. Under Terry, an “officer’s rea-

sonable suspicion that a person may be involved in

criminal activity permits the officer to stop the person

for a brief time and take additional steps to investigate

further.” Hiibel v. Sixth Judicial Dist. Ct. of Nev., No.

03-5554 (June 21, 2004), slip op. 6. In this case, Trooper

Gillette had probable cause—indeed, a particularly

clear form of probable cause—to stop respondent,

because he had observed respondent violating the traf-

fic laws by exceeding the speed limit. Accordingly, the

stop in this case was a probable-cause stop based on

an observed violation of the law, not a reasonable-

suspicion stop subject to the scope limitations of the

Terry doctrine.

b. Although this Court has analogized traffic stops

to Terry stops for some purposes, those cases do not

suggest that a traffic stop is impermissible if it does

not conform to Terry’s limitations. In Berkemer v.

McCarty, 468 U.S. 420, 439 (1984), this Court noted that

a traffic stop is analogous to a Terry stop in its brief du-

ration and non-police dominated atmosphere. The

Court reasoned that “(t]he comparatively nonthreaten-

ing character of detentions of this sort” supports the

conclusion that “persons temporarily detained pursuant

to such stops are not ‘in custody’ for the purposes of

Miranda {v. Arizona, 384 U.S. 436 (1966)].” 468 U.S. at

440. But the Court was careful to explain that “(nJo

more is implied by this analogy than that most traffic

stops resemble, in duration and atmosphere, the kind of

brief detention authorized in Terry.” Id. at 439 n.29.

The Court added that it “of course doles] not suggest

that a traffic stop supported by probable cause may not

exceed the bounds set by the Fourth Amendment on

the scope of a Terry stop.” Ibid.’ Berkemer accordingly

* Two courts of appeals have held that the permissible scope

of questioning during a traffic stop based on probable cause is

broader than for a stop based on reasonable suspicion. See United

States v. $404,905.00 in U.S. Curvency, 182 F.3d 643 (8th Cir.

1999), cert. denied, 528 U.S. 116) (2000); United States v. Childs,

277 F.3d 947 (7th wir.) (en bane), cert. denied, 537 U.S. 829 (2002),

but see United Sates v. Ho!t, 264 F.3d 1215, 1217, 1230 (10th Cir.

2001) (en banc) (finding that traffic stops should be analyzed under

Terry regardless of whether based on probable cause or reasonable

suspicion). A similar question regarding the scope of questioning

during a detention of occupants during execution of a search war-

rant, see Michigan v. Summers, 452 U.S. 692 (1981), is presented

in Muehler v. Mena, cert. granted, No. 03-1423 (June 21, 2004).

expressly disavowed the proposition that a probable-

cause traffic stop is subject to the limitations applicable

to Terry stops based on reasonable suspicion.

The Illinois Supreme Court cited two cases from this

Court in applying Terry limitations to the traffic stop in

this ease. See Pet. App. 4a. Neither case, however,

supports the court’s conclusion. In Michigan v. Long,

463 U.S. 1032 (1983), this Court held that, during a

Terry stop of a suspect in a vehicle, police officers may

undertake a protective search of the vehicle for weap-

ons if they have reasonable suspicion that the suspect is

potentially dangerous. /d. at 1051. The Court, how-

ever, made clear that the case involved “a protective

search” following a Terry stop, “and not a search justi-

fied by probable cause to arrest for speeding, driving

while intoxicated, or any other offense.” /d. at 1035 n.1.

In Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per

curiam), the Court relied on Terry for the proposition

that police officers may take reasonable steps to protect

their safety during a traffic stop (as during any other

stop) of an individual, id. at 110, and the Court also held

that the frisk of the motorist for weapons once a suspi-

cious bulge had been observed was justified under

Terry, id. at 111-112. The Court’s brief per curiam

opinion nowhere discusses whether a probable-cause

traffic stop must be analyzed as a Terry stop, and the

Court’s holdings did not depend on a conclusion that a

probable-cause traffic stop is subject to all of the same

limitations as a Terry stop.

c. Long and Mimms accordingly do not support the

Illinois Supreme Court’s holding that a probable-cause

traffic stop is subject to the seope limitations of a Terry

stop, and Berkemer suggests to the contrary. That

does not mean that a probable-cause traffic stop is sub-

ject to no Fourth Amendment limitations. See, e..,

Knowles v. lowa, 525 U.S. 113, 117 (1998) (noting that a

routine traffic stop “does not by itself justify the often

considerably greater intrusion attending a full field-

type search” incident to a custodial arrest). But prob-

able cause is the “gold standard” under the Fourth

Amendment, and its presence authorizes a more exten-

sive intrusion than can be justified when only reason-

able suspicion is present. See, e.g., Place, 462 U.S. at

709 (noting that “the brevity of the invasion of the indi-

vidual’s Fourth Amendment interests is an important

factor in determining whether the seizure is so mini-

mally intrusive as to be justifiable on reasonable suspi-

cion”) (emphasis added); United States v. Brignoni-

Ponce, 422 U.S. 873, 880 (1975) (“Because of the limited

nature of the intrusion, stops of this sort may be justi-

fied on facts that do not amount to the probable cause

required for an arrest.”). Accordingly, for the reasons

given above, see pp. 8-14, supra, the probable-cause

traffic stop in this case was “reasonable” under the

Fourth Amendment, regardless of whether it exceeded

the limitations on the proper scope of a Terry stop.

2. Even viewed as a Terry stop, the stop here was per-

missible.

a. In any event, even viewed as a Terry stop, the

traffic stop in this case would satisfy Fourth Amend-

ment standards. Under Terry, an investigatory stop

based on reasonable suspicion must be “reasonably re

lated in scope to the circumstances which justified the

interference in the first place.” Terry, 392 U.S. at 20.

That “scope” limitation means that the police may in-

trude on protected Fourth Amendment interests only

insofar as reasonable “to confirm or dispel their suspi-

cions.” United States v. Sharpe, 470 U.S. 675, 686

(1985); see Brignoni-Ponce, 422 U.S. at 881-882

(“further detention or search” beyond what is neces-

sary to resolve suspicion “must be based on consent or

probable cause”).*

b. Under Place and Edmond, the dog sniff of re-

spondent’s vehicle was not an intrusion on respondent’s

reasonable expectation of privacy or on his exercise of

dominion over his person and his possessions. Even

under Terry standards, therefore, the dog sniff did not

intrude on interests protected by the Fourth Amend-

ment, and the Illinois Supreme Court erred in conclud-

ing that the dog sniff “impermissibly broadened the

scope of the traffic stop in this case.” Pet. App. 4a.

Accordingly, even under Ter. s, the dog sniff would not

have rendered the stop unconstitutional.

The Illinois Supreme Court’s error resulted from its

apparent belief that any action taken by a police officer

during a Terry stop that does not directly relate to con-

firming or dispelling the officer’s reasonable suspicion

broadens the stop unjustifiably. The Fourth Amend-

ment, however, is not concerned with establishing a

general code of police conduct, but with protection of

legitiniate expectations of privacy and of interests in

4 In Hiibel v. Sixth Judicial Dist. Ct. of Nev., No. 03-5554 (June

21, 2004), the Court rejected the argument that a state law

requiring suspects to identify themselves during a Terry stop

“circumvents the probable cause requirement, in effect allowing an

officer to arrest a person for being suspicious.” Slip op. 9. The

Court explained that “an officer may not arrest a suspect for

failure to identify himself if the request for identification is not

reasonably related to the circumstances justifying the stop.” /d. at

10. The Court’s statement in Hiibel does not suggest that

everything a police officer does in the course of a Terry stop must

be related to the purposes of the stop, even if the police officer’s

conduct (i.e., asking a question or having a dog sniff a vehicle) does

not intrude on protected Fourth Amendment interests.

the ability to exercise dominion over one’s person and

property. A Terry stop is thus “impermissibly broad-

ened,” in the court’s terms, only if the officer takes ac-

tion that intrudes on Fourth Amendment interests

more than can be justified by the nature of the stop.

See, e.g., Knowles, 525 U.S. at 117-118; Place, 462 U.S.

at 707-710. The fact that the officer may engage in

other conduct—even conduct that could detect the pos-

sibility of an otherwise unrelated crime—that does not

intrude on Fourth Amendment interests does not

broaden the scope of a Terry stop or other Fourth

Amendment search or seizure. See, e.g., Whren v.

United States, 517 U.S. 806, 812-813 (1996) (no violation

of Fourth Amendment when narcotics were observed in

car stopped for traffic violation); United States v. Vil-

lamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (no viola-

tion of Fourth Amendment in plain-view discovery of

marijuana during unrelated administrative boarding of

vessel); Colorado v. Bannister, 449 U.S. 1 (1981) (per

curiam) (plain-view seizure of stolen items observed

during unrelated traffic stop permissible). Accordingly,

it does not render the stop unconstitutional.

c. Respondent has argued (Br. in Opp. 6) that the

traffic stop in this case was unconstitutional because

“the troopers extended the duration of the traffic stop”

in a way that was unjustified under Terry. Respondent

is mistaken. In the current posture of this case, it must

be assumed that the duration of the traffic stop was

reasonable and within the limits set by Terry.

First, the Illinois Supreme Court did not conclude

that the dog sniff extended the duration of the traffic

stop at all. To the contrary, the facts recited by the

court—that Trooper Gillette “was still writing the

warning ticket when Trooper Graham arrived with his

drug-detection dog and began walking around defen-

dant’s car,” Pet. App. 3a—establish that the dog sniff

did not increase the duration of the stop. And the court

squarely rested its ultimate decision not on any in-

crease in the length of the stop caused by the dog sniff,

but on the principle that “the State has not offered suf-

ficient justification for implementing a canine sniff” and

that such a sniff “impermissibly broadened the scope of

the traffic stop into a drug investigation.” Jd. at 4a.

The question before this Court concerns the permissi-

bility of a dog sniff during a traffic stop, not whether

the duration of the traffic stop in this case was ex-

tended unreasonably.

Moreover, if anything extended the duration of the

stop, it was not the dog sniff, but the various steps

taken by Trooper Gillette during the stop, such as radio

checks on the validity of respondent’s license, the pres-

ence of outstanding warrants, and respondent’s crimi-

nal history, and brief questioning of defendant’s pur-

poses and mode of travel. Pet. App. 2a-3a. The Illinois

Supreme Court, however, engaged in no analysis of

whether those steps extended the duration of the traffic

stop unjustifiably, and it reached no conclusion on that

point.°

® Although the Supreme Court of Illinois did not address the

matter, the state court of appeals did address respondent’s

contention that Gillette called the dispatcher for a criminal history

check as a delay tactic. The court found that the dispatcher re-

sponded to Gillette’s request (immediately after which Gillette

began writing the warning ticket) just 44 seconds after the request

was made. Pet. App. 16a-17a. The court of appeals thus correctly

concluded that any delay was de minimis. Ibid. See United States

v. Purcell, 236 F.3d 1274, 1279 (11th Cir. 2001) (“(T}he request for

the criminal histories prolonged the traffic stop, at most, by

approximately three minutes. We conclude that this delay was de

minimis in the context of the totality of the circumstances of this

traffic stop.”); ef. United States v. Childs, 277 F.3d 947, 953 (7th

Finally, the duration of the stop in this case did not

violate the appropriate limits on Terry stops. In de-

termining whether a detention is too prolonged to be

justified as an investigative stop, this Court has looked

to whether the police acted in a diligent and reasonable

manner in pursuing their investigation. Sharpe, 470

U.S. at 686-687. In this case, the circumstances of re-

spondent’s stop suggest no lack of diligence or reason-

ableness on the part of the police. The entire stop, from

inception to the time Trooper Gillette changed the ac-

tivity code to a narcotics detention, took less than nine

minutes. Pet. App. 17a. That is well within the reason-

able time period for a routine traffic stop. See, e.g.,

Sharpe, 470 U.S. at 683 (finding 20-minute investigative

stop reasonable under circumstances of the case); cf.

Place, 462 U.S. at 709-710 (90-minute detention of lug-

gage too long under circumstances of the case).° The

steps the officer took in determining the appropriate

course to take were reasonably related to the purposes

of the stop—the decision whether to issue a traffic

Cir.) (en bane) (finding that delay of license and warrant checks

caused by officer speaking to passenger at traffic stop did not

violate the Fourth Amendment because “(t]he extra time, if any,

was short—not nearly enough to make the seizure ‘unrea-

sonable.’”), cert. denied, 537 U.S. 829 (2002); United States v.

$404,905.00 in U.S. Currency, 182 F.3d 643, 648-649 (8th Cir. 1999),

(holding that a two-minute delay for dog sniff was a de minimis

intrusion), cert. denied, 528 U.S. 1161 (2000); United States v.

Morgan, 270 F.3d 625, 631-632 (8th Cir.) (finding de minimis less

than 10-minute delay caused by walking narcotics-detecting dog

around vehicle), cert. denied, 537 U.S. 849 (2002).

6 See Purcell, 236 F.3d at 1278-1279 (14-minute traffic stop held

reasonable), cert. denied, 534 U.S. 830 (2001); United States v.

Shabazz, 993 F.2d 431, 438 (5th Cir. 1993) (noting that a computer

check of a motorist’s driver’s license, insurance papers, and vehicle

registration may take 15 minutes).

ticket or a warning citation or to take some other step

to address the violation he had observed.

CONCLUSION

The judgment of the Supreme Court of Illinois should

be reversed. ~

Respectfully submitted.