JUSTICE THOMAS, dissenting:
With today's decision, the dicta in People v. Cox, 202 Ill. 2d 462 (2002), becomes the law. Because I strongly disagreed with the Cox dicta, I dissent from the majority opinion.
In Cox, this court upheld a suppression order on the basis that the defendant had suffered an illegal detention. Cox, 202 Ill. 2d at 469-70. After so concluding, the court tacked on a gratuitous section that concluded that the police may not conduct a canine sniff of a vehicle unless they have a reasonable, articulable suspicion that the car's occupants are possessing a controlled substance. Cox, 202 Ill. 2d at 470-71. According to the Cox majority, Terry principles govern whether the police may conduct a canine sniff of a lawfully detained vehicle. Cox, 202 Ill. 2d at 466-68.
As I explained in my dissent, the section of the majority opinion dealing with the canine sniff was dicta because the majority had already concluded that the evidence had to be suppressed because the defendant was subjected to an illegal detention. See Cox, 202 Ill. 2d at 478 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.); see also Best v. Taylor Machine Works, 179 Ill. 2d 367, 470 (1997) (generally, this court will not "engage in speculative analysis or *** render an advisory opinion *** where, as in the instant case, such analysis or opinion is not necessary for the disposition of the cause"). In the case before us, the Cox dicta supplies the sole support for the majority's holding, and thus the dicta is now the law.
Typically, having once voiced disagreement with an opinion, a justice will follow the opinion in future cases because of stare decisis considerations. I cannot do that with Cox because that case is wholly incompatible with United States Supreme Court cases construing the fourth amendment. This court is obligated to follow decisions of the United States Supreme Court on questions of federal constitutional law, and I cannot join an opinion that fails to do so.
As I explained in Cox, under the Supreme Court cases, a canine sniff is not a search. See City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000); United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983). In Cox, the majority refused to acknowledge that a canine sniff is not a search and failed to discuss City of Indianapolis or Place. If a sniff is not a search, then the police do not need probable cause to conduct one. Further, allowing a canine to sniff a vehicle that is already detained does not transform the seizure into a fourth amendment search. The Supreme Court made this plain in City of Indianapolis:
"It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. [Citation.] The fact that officers walk a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search. [Citation.] Just as in Place, an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. [Citation.] Like the dog sniff in Place, a sniff by a dog that simply walks around a car is 'much less intrusive than a typical search.' [Citation.]" City of Indianapolis, 531 U.S. at 40, 148 L. Ed. 2d at 342-43, 121 S. Ct. at 453.
After ignoring the cases holding that canine sniffs are not searches, the Cox majority held that sniffs were controlled by Terry principles, even though the Supreme Court has made it clear that Terry applies only to searches for weapons. It has never been extended to general searches for incriminating evidence. As I explained in Cox:
"I also disagree with the appellate court's holding (and the majority's apparent implied holding) that canine sniffs should be considered limited investigatory stops governed by Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Terry allows the police to briefly detain an individual when the officer 'observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.' Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884. Additionally, the officer is allowed, without a warrant, to conduct a careful limited search of the person when his observations reasonably lead him to believe that the person might be carrying a weapon. The purpose of the 'frisk' is to allow the police, for their own safety and the safety of others, to determine if the person is armed. Terry, 392 U.S. at 27, 20 L. Ed. 2d at 90, 88 S. Ct. at 1883. The Court reached its decision by balancing the need to search against the invasion the search entails. Terry, 392 U.S. at 21, 20 L. Ed. 2d at 905-06, 88 S. Ct. at 1879-80, quoting Camara v. Municipal Court, 387 U.S. 523, 536-37, 18 L. Ed. 2d 930, 940, 87 S. Ct. 1727, 1735 (1967). As Professor LaFave has noted, however, 'there is no search-for-evidence counterpart to the Terry weapons search, permissible on only a reasonable suspicion that such evidence would be found.' 4 W. LaFave, Search & Seizure §9.5(g), at 300 (3d ed. 1996). See also Minnesota v. Dickerson, 508 U.S. 366, 373, 124 L. Ed. 2d 334, 344, 113 S. Ct. 2130, 2136 (1993) (sole justification for a Terry frisk is the protection of the police officer and others, not to gather evidence); People v. Flowers, 179 Ill. 2d 257, 263 (1997) (same); Arizona v. Hicks, 480 U.S. 321, 328-29, 94 L. Ed. 2d 347, 356, 107 S. Ct. 1149, 1154 (1987) (refusing to recognize an intermediate type of search between a plain-view inspection and a 'full-blown search' that would merely require a reasonable suspicion); Ybarra v. Illinois, 444 U.S. 85, 93-94, 62 L. Ed. 2d 238, 247, 100 S. Ct. 338, 343 (1979) (Terry cannot be understood to allow any search whatever for anything but weapons); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 103 L. Ed. 2d 639, 661, 109 S. Ct. 1402, 1414 (1989) (balancing test is appropriate only when warranted by special needs beyond the normal need for law enforcement). Thus, the majority's apparent belief that a canine sniff for narcotics is a search that can be conducted on an officer's mere reasonable suspicion impermissibly extends Terry to general searches for evidence." Cox, 202 Ill. 2d at 487-88 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.).
The majority's opinion is wholly invalid on this ground because the Supreme Court requires probable cause for warrantless searches of vehicles. See, e.g., Wyoming v. Houghton, 526 U.S. 295, 300, 143 L. Ed. 2d 408, 414-15, 119 S. Ct. 1297, 1300 (1999). If a sniff is a search, then the police cannot conduct one in the absence of probable cause. Thus, in trying to restrict the authority of the police in a routine traffic stop, the majority has unwittingly restricted a defendant's fourth amendment rights by applying Terry to what the majority believes to be a search for incriminating evidence.
In another passage that bears repeating, I pointed out the majority's dilemma:
"In sum, the answer to the question of whether a canine sniff is a search leads to two possible outcomes. If a sniff is a search, then the police need probable cause to conduct one. If a sniff is not a search, then neither the fourth amendment nor article I, section 6, of the Illinois Constitution is implicated. There simply cannot be a 'reasonable suspicion' middle ground because the United States Supreme Court has not expanded Terry to general searches for incriminating evidence, as opposed to searches for weapons.
The majority thus refuses to answer the threshold question, because an answer cannot lead to its result. Instead, the majority has issued a policy decision with no foundation in the law." Cox, 202 Ill. 2d at 489 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.).
In the case before us, the majority has not held that defendant's vehicle was subjected to an illegal detention. Therefore, because the police did not impermissibly extend the traffic stop to allow the canine to sniff defendant's car, defendant's fourth amendment rights were not violated. The canine sniff was not a search, and thus the police did not need probable cause or a reasonable suspicion of wrongdoing before conducting it.
As with Cox, this decision is wholly incompatible with United States Supreme Court case law construing the fourth amendment and is subject to reversal by that court. Accordingly, I cannot join in this opinion, or in any other one that follows and applies the Cox rule.
JUSTICES FITZGERALD and GARMAN join in this dissent.
What If I am more nervous? What if I happen to live in a "known drug area" and I'm driving home late at night? What if I do drive a cluttered car and stink? Is it any less wrong?
