Tuesday, January 25, 2005

lawyer talk

As you may have heard, the Supreme Court held yesterday that the Fourth Amendment does not prohibit the police from bringing a drug-sniffing dog to check out your car when you're stopped for a traffic violation. In other words, they don't have to have any basis for suspecting you of drugginess, before bringing the sniffer. This was bad news for Mr. Caballes; the Illinois Supreme Court had reversed his conviction holding the search unlawful, but the U.S. Supreme Court reinstates the conviction.

There's a lesson here for criminal defense lawyers, and it's not just "don't drive around with lots of pot in your trunk."

The lesson -- and it's not a new one, but always a good one -- is, try to nudge the court towards ruling in your favor based on state law, including the state constitution. If you win under the U.S. Constitution, the Supreme Court can take it away. But if the Illinois Supreme Court had said, "We are relying here not on the Fourth Amendment to the U.S. Constitution, but on Art. 1 Sec. 6 of the State Constitution," Mr. Caballes would be a much happier man today.

Why didn't they? Maybe they weren't asked to; it's easy to fall into the habit of just saying "Fourth Amendment" or "Fifth" or "Sixth" instead of citing state constitutional provisions too. Or maybe they had some odd self-denial thing going on, saying in effect, "we think that this is right, but we'd like to make it easier for Justice Scalia to tell us that we're wrong."

posted by sam 10:51 AM 0 comments

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