IL: Directing driver to roll up windows and turn blower on high was not a “search”; a case of first impression [coming out wrong]
I’m glad that John Wesley Hall has blogged about an Illinois Supreme Court decision on dog sniff set-ups that I had mentioned on this blog last week. The case is People v. Bartelt and I wrote:
After reading the opinion, I do not see how this set-up should be viewed as lawful. And if it doesn’t implicate the Fourth Amendment, then what about the Fifth Amendment? The police are basically ordering an individual – who is not under arrest but who has been seized in the traffic stop — to engage in behavior that makes it easier for the law to find evidence against them. Do they tell the individual that they have the right not to cooperate with the set-up? What do they do if the individual says, “No?”
Hopefully, some kind lawyers will explain this to me. And yes, that means you, too, John Wesley Hall.
Several people tweeted that they agreed with me that the court got this one wrong in terms of the Fourth Amendment, and John seems to think so, too. After excerpting relevant portions of the majority decision and the dissent, he writes:
[Note: I find United States v. Viera, 644 F.2d 509 (5th Cir. 1981), completely unavailing to the majority. The suitcase there was sitting in front of them. Is sitting on it a search? Not really, although if I were the judge, I say yes, but I’m not. Look at this case at its irreducible minimum: Could the officer have entered the car to do the “set up procedure”? If the answer is no, then how could the driver be ordered to do the “search” for the police? The driver couldn’t. And, just saying Cabelles says a dog sniff isn’t a search is no answer because they would have to enter the car to do make it work, and that is where the majority completely fails in its duty here.]
I do not know if this decision will be appealed, but I hope it is.
Great thanks to John for sharing his thoughts on this case. It’s always gratifying to me when I learn that there is actually some legal argument that supports my “gut” reaction that a decision is just wrong.
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