Through the Looking Glass on Searches

Russ raises another scenario I hadn't considered made possible by the Supreme Court's ruling in Caballes, which held that canine sniffs looking for drugs are not a search:

In my home county, the local sheriff there made a big splash by using drug-sniffing dogs to patrol the parking lots of the local shopping mall. When the dog alerted to a car, they noted which car it was, then waited for the car to leave the lot. They'd follow the car and wait for any little traffic violation -- using the turn lane for more than 100 ft, switching lanes without blinking for the mandated five seconds, travelling 2 MPH over the speed limit, a burnt-out license plate light, whatever -- then pull the driver over and pressure them into a search.

That's the nasty conversion of Caballes and Whren, which allows police to conduct "pretext stops," that Alaskablawg predicted -- and it's perfectly legal now. Gross. Meanwhile, Jeralyn emailed to pose a fascinating hypothetical. I gave her an off-the-top-of-the-head best guess, but I'd love to hear more learned thoughts on the matter:

do you think this ruling would apply to a case in which the drug dog alerted on money instead of drugs and there were no drugs in the car, only a large sum of cash. Would it support seizing the money?

The best I can say, I'm afraid, is, "I sure hope not." Today, post-Katz, Whren, Atwater and Caballes, Fourth Amendment interpretation has the quality of Humpty Dumpty's comments in Alice in Wonderland: 'When I use a word, it means exactly what I say it means, no more and no less.' When I say a search, it only means looking for things that are not illegal. Looking for things that are illegal isn't a search. With that kind of Orwellian approach, I simply do not feel able to predict what the Court would do in a particular case -- we've now passed through the looking glass.