By Ellen Komp

On January 25, in a 6-2 decision, the U.S. Supreme Court decided that drug-sniffing dogs can be used at any traffic stop, whether or not there is suspicion of a controlled substance being transported. This means anyone pulled over for speeding, weaving, driving without brake lights, broken tail lights, etc. can be subjected to a drug-dog search.

In Illinois v. Caballes, the Court ruled, "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 4th Amendment." It remains to be seen whether medical marijuana patients' and caregivers' rights under Prop. 215 and SB420 will have any bearing on enforcement or court rulings.

The Court was clear that it ruled as it did because Caballes was not detained for longer than was reasonable for his traffic stop. The whole incident in ques-tion took only 10 minutes, because the drug task force officer proceeded to the scene after hearing the stop re-ported by radio. The Court indicated it would have ruled differently in a 2002 case, People v. Cox, where the Illinois Supreme Court held that the use of a dog sniff led to an unconstitutional seizure of contraband because the traf-fic stop was "unreasonably prolonged."

The decision also rests on a presumption that drug-sniffing dogs are so well trained that false positives don't happen, so that the only thing detected would be illegal contraband. The Court said its decision was consistent here with its 2001 ruling in Kyllo v. US, where it ruled that using a thermal imaging device was unconstitutional, because that could pick up both licit and illicit activities in a person's home.

In his dissent, Justice Souter cited several studies showing drug-sniffing dogs are not infallible, including a University of Auburn study that showed dogs had false positive rates between 12.5-60% of the time, depending on the length of the search. He also noted that since up to 80% of currency is tainted with drug residue, dog sniffs are still further unusable. Souter wrote that, in his opinion, the Court's ruling does not grant authority to search parked cars or people on a sidewalk, since that would be more intrusive than a dog sniff that accom-panied a traffic stop.

Justice Ginsburg, in her dissent, worried about those instances and also about the Court's previous ruling, in Bond v. US (2000), that a passenger on a bus had an expectation of privacy for a bag placed in an overhead compartment, so that a police officer's manual handling of such a bag constituted an unreasonable search. Would a drug dog used in the same instance be unreasonable to the Court, she wondered?

Immediately after the ruling, Mendocino County sheriffs added two drug dogs to their Ukiah beat.

Whether or not an air freshener or anything else dangling from a rear-view mirror is reason to pull a vehicle over is at issue in a case being brought by activist Jason Fishbain against the California Highway Patrol. A class action suit brought by Americans for Safe Access challenges the confiscation of marijuana from patients with amounts under the SB420 limits.