What I have not seen anybody say yet, and if it is out there, feel free to point me to the site or link, is how chilling this decision is when combined with Whren. For those who do not know, in Whren v. US, the Supreme Court held that the subjective intent of a police officer is irrelevant in determining the legality of a traffic stop. So, if a cop wants to stop you because you fit a 'drug courier profile', the cop just has to follow you long enough to make a minor traffic stop and then pull you over. With Cabellas, that cop can have a drug dog in his car and there is nothing you can do about it constitutionally.Thank you. You heard it here first: We are now in the era of the pretext stop. After Whren and Caballes, traffic enforcement will, over time, have less and less to do with ensuring traffic safety and more with getting around the Fourth Amendment. AlaskaBlawg hardly describes the half of it -- more and more typical will be the following scenario.
Officer: M'am, can I search your car?At that point, how much of that driver's Fourth Amendment rights truly remain?
Driver: No, not without a warrant.
Officer: Then you're going to have to wait here, m'am while I call in the drug dog.
Driver: And how long is that going to take?
Officer: Oh, twenty or thirty minutes, maybe. Elroy, he and Scooter, that's the dog, he and Scooter are just finishing up at another stop, then I think they've got one more ahead of us.
Driver: I don't have all day to wait here, I have to get back to work.
Officer: Well, you could just give me consent to search, m'am, then you could be on your way.
In Texas and several other states it's even worse after Atwater v. Lago Vista (discussed in the second half of this post). In that case the Supremes ruled that, where state law allows, officers may arrest for fine-only traffic offenses. So in Texas, at least, and for states that have not banned the practice, the conversation might just go like this.
Officer: M'am, can I search your car?The Supremes decided that Texas case in January 2001. In response, the Texas Legislature passed legislation that spring banning the practice, but Governor Rick Perry vetoed the bill, dubbed "the soccer mom bill" by the media for Gail Atwater, who was taking her kids home from soccer practice when she was arrested for a seat belt violation. In 2003, the Texas Legislature passed another bill that would have required departments to have written policies at least stating WHEN officers were allowed to arrest for traffic offenses, but Governor Perry vetoed that, too. So officers retain that leverage, and Gov. Perry has promised political backers he'll continue to insist they have that discretion.
Driver: No, not without a warrant.
Officer: M'am, our drug dog is busy so my only other alternative is to place you under arrest for the offense of failure to signal a lane change, then search the car after we impound it. Is that what you want me to do?
Driver: Of course not! So what choice do I have?
Officer: Well, let me ask you again, m'am, can I have permission to search your car?
Driver: Fine, search the damn car, I have to get back to work.
I'm sorry, folks, but the Fourth Amendment has vanished in America when you're in a vehicle after this ruling. In Texas, that happened already after Atwater, so this just deep sixed the pesky rascal for the rest of the nation. A certain percentage of traffic enforcement will always be related to actual traffic safety concerns, I hope. But increasingly, traffic stops will become the pretext for all sorts of stuff that police can't get away with elsewhere.
UPDATE: Skelly says he's gotten searches thrown out of Idaho state court when the officer made a driver wait for a dog, and links to the ruling. Texas will take a couple of those appellate judges to go, please, or better, we've got some to swap! He thinks we'll just see more dogs in police cars doing traffic interdiction, until one day we won't remember when every cop didn't have a dog. (That's an ugly thought. I guess they're less lethal than Tasers.)
I'm not an attorney and at the moment can't quote the state case law, but directing ACLU of Texas' Police Accountability Project I've heard plenty of anecdotal evidence on this wait-for-the-dogs question, enough to make me confident the practice goes on here. At a series of town hall meetings across Texas last year on racial profiling sponsored by the Texas Criminal Justice Coalition, NAACP, ACLU and LULAC, the complaint was raised frequently enough to constitute a pattern. For a detailed analysis of Texas highway drug interdiction practices, see the report I authored for ACLU of Texas, Flawed Enforcement: Why drug task force highway interdiction violates rights, wastes tax dollars, and fails to limit the availability of drugs in Texas (pdf)