When he was stopped on the shoulder of I-80 in LaSalle County seven years ago, Roy Caballes was no different from thousands of drivers pulled over for speeding every year. Caballes, caught driving 71 mph in a 65-mph zone, was about to get off with a written warning.
But what happened next transformed Caballes into the central character in an ongoing legal saga that could shape the rights of Illinois citizens, alter state judges' relationship with their federal counterparts and restrict Illinois police from using controversial tools to do their jobs.
As the trooper who pulled Caballes over filled out paperwork, another squad car showed up. Within minutes, the new officer trotted a police dog around Caballes' car. The dog alerted the officers to the presence of drugs, and they found roughly $250,000 worth of marijuana in Caballes' trunk.
The legal wrangling in the case that reached all the way to the U.S. Supreme Court still isn't finished.
Caballes lost his attempts to suppress the evidence in front of a trial judge and an Elgin-based reviewing court. But a sharply divided Illinois Supreme Court ruled in 2003 that the police could not rely on a "vague suspicion" to order a dog sniff. The nation's high court reversed that ruling in January 2005, finding that the officers complied with the Fourth Amendment.
Normally, that would have been the end of the road for Caballes in his attempts to keep the pot from being used as evidence in the case. But his lawyers convinced the Illinois court to take a second look at the case because, they pointed out, Caballes originally argued that the dog sniff violated the Illinois Constitution, not the Fourth Amendment.
The Illinois Supreme Court has the final say on what the state charter means. The only reason the nation's high court could review Caballes' case in the first place was because the state judges didn't specify whether the sniff was "unconstitutional" under the state or federal constitutions. Now that they're taking a second look at the case, the state judges must ponder whether to give residents of Illinois more protections from police searches and seizures than residents in most other parts of the country enjoy.
Caballes' case is the latest to stoke the flames in a long-simmering debate over how muscular the Illinois Constitution's Bill of Rights is compared to its federal counterpart.
To Dawn Clark Netsch, who served as a delegate to the 1970 Constitutional Convention, Caballes' case presents the Illinois Supreme Court with an opportunity to make the state charter a "living, breathing document, not just a shadow of the U.S. Constitution."
Ann Lousin, a research assistant at the convention and now a professor at John Marshall Law School, is adamant that the "entire Bill of Rights was the Illinois Bill of Rights," completely separate from the federal Bill of Rights.
But to Solicitor General Gary Feinerman, who argued the latest appeal before the Illinois high court, unmooring Illinois law from federal rulings would needlessly raise doubts about all sorts of interactions between police and citizens.
"Why should the people of the other 49 states care if Illinois wishes to restrict the actions of the Illinois government?"
Police, judges and lawyers already know the rules concerning the Fourth Amendment, but nobody knows what could pass muster if the court created new rules under the Illinois Constitution, he explains.
At a reunion of the convention's participants in October, Lousin disputed that argument.
"Why should the people of the other 49 states care if Illinois wishes to restrict the actions of the Illinois government?" she asked. "It dismays me that the attorneys general of Illinois and the Supreme Court of Illinois have embraced the 'lockstep' view and have declined to create a separate jurisprudence for Illinois."
In any event, Caballes faces an uphill battle in his latest appeal to the state Supreme Court. For him to win, the justices must overturn 20 years' worth of cases in which they have decided that, when it comes to searches and seizures, the two bills of rights are identical.
But defense attorneys point to a handful of cases where the court strayed from federal interpretations in an effort to show the justices that the state and federal courts aren't in sync as prosecutors claim.
They've also noted that, since the Illinois high court adopted the so-called "lockstep doctrine," the U.S. Supreme Court explicitly overruled the Illinois courts in a number of search-and-seizure cases, including Caballes'.
By one count, the U.S. Supreme Court considered 10 search-and-seizure disputes in which Illinois courts sided with defendants in the last 25 years. Of those 10 cases, John Marshall Law School Professor Timothy P. O'Neill recounted in a study released in May, the federal court sided with the government in every one. Each time, of course, it overturned an Illinois reviewing court to do so.
Furthermore, the 1984 Illinois Supreme Court decision that first announced the lockstep doctrine was a messy affair. Four of the court's seven justices weighed in separately in the 5-2 decision. Their writing shows that the question cut to the heart of their judicial philosophies. The majority looked at the Illinois Constitution as if it were stuck in 1970 when it was drafted. The dissenters wanted to recognize the charter as a "living document" that could adapt to new technologies and new developments.
In recent years, search-and-seizure cases have continued to produce narrow and often contentious results on the Illinois court. Caballes' case came down to a 4-3 split, and one of the members of the original majority is no longer on the court.
In fact, the Illinois high court's decision regarding Caballes followed a similarly charged dog sniff case that also ended in a 4-3 decision for the defense. The same fault lines emerged when the court ruled police could not run a background check on a passenger in a car whose driver had been arrested for drunken driving.
And the same split occurred when the court tossed out the conviction of a man who nearly ran over a police officer at a roadblock because, it found, the roadblock was illegal. The U.S. Supreme Court later overturned that decision.
The state Constitution can only give citizens more rights, not fewer, than the federal charter, so police cannot gain more search-and-seizure authority without the U.S. Supreme Court's approval.
If, however, the Illinois court departs company from the more police-friendly U.S. Supreme Court on this issue, it could mean that Illinois police officers would have to operate under more stringent rules than they do now.
At the root of the controversy are similar, but not identical, provisions in the state and federal constitutions.
The Fourth Amendment of the U.S. Constitution ensures that the "right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."
By comparison, the Bill of Rights in the Illinois Constitution states that the "people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means."
The framers of the 1970 Constitution discussed at length the two features that clearly distinguish the two — the protections against eavesdropping and the prohibition on invasions of privacy — but they didn't much talk about the search-and-seizure language.
One of the stickier points in Caballes' appeal is which of those three provisions are at play.
Clearly, the search-and-seizure clause would apply. What exactly it means — and who gets to decide that — is at the heart of the lockstep controversy.
But the ill-defined "privacy" provision also could affect the court's decision.
At the convention, delegates explained that the privacy protections would prevent state and local governments from amassing information from private databases about ordinary citizens and bar cops from shadowing people too closely.
Two decades after Con-Con, however, the Illinois court ruled that the privacy clause shielded criminal suspects in situations where the Fourth Amendment didn't. In that 1992 case, the court decided that a Will County grand jury could not force two men who had not been charged to submit blood samples or head and pubic hair combings without the grand jury showing good reasons, or "probable cause," for considering them to be suspects.
Caballes' lawyers need to convince the court that one or both of those provisions mean that Illinois law goes beyond federal rules. Then, to win, they have to show that the dog sniff violated state standards.
For many who are fighting the lockstep approach, though, the important thing is that the court recognizes the Illinois Constitution does, indeed, protect more rights than the federal Bill of Rights.
Netsch, who teaches constitutional law at Northwestern University after a career in politics, acknowledges that delegates at the 1970 convention didn't spend a lot of time thinking about the search-and-seizure provision. But she insists they never wanted to rely on federal courts to define the rights of Illinois citizens.
"There's no question in my mind that we were writing our own Constitution. We were doing things that would not be embedded in the U.S. Constitution," she says, pointing to the privacy right and a guarantee that men and women would be treated equally by state and local governments.
The defense lawyers representing Caballes also highlight work the delegates did in other areas of the Bill of Rights to show that the framers deliberately crafted a document designed to stand on its own.
But Feinerman, the solicitor general, sees it differently. Though he acknowledges that the delegates parted ways with the federal standards on several key issues, he stresses that the delegates knew Illinois courts had viewed the search-and-seizure provisions of the old state charter as identical to the Fourth Amendment.
The framers definitely knew how to distinguish their work from the federal Bill of Rights, but they made no effort to do so when it came to the search-and-seizure language, Feinerman argues.
Furthermore, he points to the comments of delegate John Dvorak, who explained Article 1, Section 6, to the convention, to show that the assembly wanted to leave the search-and-seizure law as is.
"There is nothing new or no new concepts," Dvorak said, "that the Bill of Rights Committee intended to provide insofar only as the search and seizure section — or the search and seizure concept — is concerned if, in fact, we break it down into three concepts ... as I originally stated."
In some ways, though, the difference between Feinerman's and Netsch's approaches is more fundamental than what, they claim, was on the delegates' minds 35 years ago. The two also have different takes on what the role of the Supreme Court should be when dealing with the state charter.
"The question of whether it's good policy or not is not really how courts decide cases like this," Feinerman says of the justices weighing the merits of the lockstep doctrine. "The question is what the framers of the Constitution intended."
He adds, "As irrelevant as it is, it's good policy."
Netsch, perhaps reflecting the fact that she's not directly involved in the case, dwells on the court's role in preserving state power in a federal system. By simply attributing its decisions to its take on the state charter instead of the U.S. Constitution, the Illinois high court could avoid ceding its power to Washington, D.C., she says.
"If you believe in state sovereignty, then, for heaven's sake, attribute it to that sacred document," the Illinois Constitution, she urges state judges.
At a November hearing in Caballes' case, Chief Justice Robert Thomas wondered aloud whether it would be appropriate to abandon the lockstep doctrine just to avoid reversal by a higher court.
"If this court disagrees and thinks this is exactly what the framers intended, that we would follow lockstep, then, if we were to deviate from that in this case, it appears that we have deviated only to get around a U.S. Supreme Court case that has found differently than this court would then find," he said.
Since joining the high court in 2000, Thomas has twice been vindicated by decisions of the U.S. Supreme Court in search-and-seizure cases. He dissented from the court's original decision regarding Caballes and the decision in the roadblock dispute, both of which the federal court overturned.
One of Thomas' frequent allies in the Fourth Amendment cases, though, raised the possibility that the state could preserve its authority while still allowing prosecutors to use the evidence against Caballes.
"It is entirely possible, I would think, to recognize an expanded right for citizens in search-and-seizure cases based upon the right to privacy clause of the Illinois Constitution and at the same time find that the conduct here did not violate that right," said Justice Thomas Fitzgerald.
And, as another indicator that the justices are seriously contemplating a move toward more independence, Justice Charles Freeman, normally a stickler for making sure the high court follows its own precedents, noted that a New Mexico court reversed course on exactly the same issue.
"If we decide at this point," he said, "that we would come down on the side of the citizens of Illinois in privacy issues, we could do that."
Supreme Court to weigh state government issues
One of the highlights for Illinois of the last U.S. Supreme Court term was that Attorney General Lisa Madigan argued for the prosecution in Illinois v. Caballes in November 2004. She secured a victory when the justices ruled, in a 6-2 decision, that Illinois police acted properly when using a dog sniff during a routine traffic stop.
This year, the state of Illinois is not directly involved in any cases on the high court's docket, but there are a number that could affect state governments, including Illinois'.
Topping the list is a dispute over tax breaks Ohio gave to DaimlerChrysler to expand a Toledo factory instead of shutting it down. A federal appeals court determined that the breaks were illegal after taxpayers in Michigan and Ohio complained they violated Congress' exclusive authority to regulate interstate commerce.
The high court also will pick up where it left off on states' responsibilities under the Americans with Disabilities Act to provide handicapped-accessible facilities.
Previously, the justices sidestepped the issue by ruling that a Tennessee courthouse with courtrooms accessible only by stairs violated litigants' constitutional rights, though not necessarily the ADA. Now, however, the justices are confronted with the case of a paraplegic Georgia prisoner contesting his placement in a cell where, he claims, he can't use the toilet or turn around in his wheelchair.
Meanwhile, another dispute will give the justices the opportunity to determine whether Arkansas can pursue a personal injury award received by a Medicaid recipient. Arkansas wants the money to cover medical expenses it paid following the car accident that led to her award.
Daniel C. Vock, a reporter for Washington, D.C.-based Stateline.org and a former Illinois Statehouse bureau chief for the Chicago Daily Law Bulletin, is a frequent contributor to Illinois Issues.
llinois Issues, January 2006
