# Amicus Curiae Brief — Illinois v. Caballes > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0729%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 543 U.S. 405 ## Text “Supreme Coun, U.S. p corl Fiteo . Q 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) we 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) IV 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 v. 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) 2 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 3 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 6 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- 7 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- 9 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, 10 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- ll 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. l2 (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). 13 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 14 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- 15 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). 16 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.., 17 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 18 (“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. 19 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- 20 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 21 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). 22 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. THEODORE B. OLSON Solicitor General CHRISTOPHER A. WRAY Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General JAMES A. FELDMAN Assistant to the Solicitor General JOHN A. DRENNAN Attorney JUNE 2004 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0729%3A09. Public record. Not legal advice.