People v. Caballes (221 Ill. 2d 282, 2006)

JUSTICE GARMAN

delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Fitzgerald and Karmeier concurred in the judgment and opinion.

Justice Freeman dissented, with opinion, joined by Justices McMorrow and Kilbride.

OPINION

On January 24, 2005, the Supreme Court of the United States vacated this court’s judgment in People v. Caballes, 207 Ill. 2d 504 (2003) (Caballes I), and remanded the cause for “further proceedings not inconsistent with this opinion.” Illinois v. Caballes, 543 U.S. 405, 410, 160 L. Ed. 2d 842, 848, 125 S. Ct. 834, 838 (2005). Both the Supreme Court and this court in its now-vacated judgment considered only defendant’s fourth amendment claim. However, in his original brief to this court, defendant also relied on article I, section 6, of the Illinois Constitution of 1970. Ill. Const. 1970, art. I, § 6. Therefore, we must now consider whether, even though the canine sniff of defendant’s car during a routine traffic stop did not implicate the fourth amendment, it nevertheless violated the guarantees of the state constitution.

We have allowed defendant’s motion to permit additional briefing of the state constitutional issues. In addition, we have permitted the Illinois State Bar Association (ISBA), with the Office of the Cook County Public Defender, and the American Civil Liberties Union of Illinois (ACLU), with a number of other organizations, to file briefs amici curiae on behalf of the defendant. 155 Ill. 2d R. 345.

BACKGROUND

The facts surrounding defendant’s arrest are described in detail in our earlier opinion. Caballes I, 207 Ill. 2d at 506-08. In brief, defendant was stopped on an interstate highway by an Illinois state trooper for the offense of speeding. The trooper radioed the police dispatcher to report that he was making a stop. Before he began to write the ticket, he again radioed the police dispatcher to determine whether defendant’s license was valid and to check for outstanding warrants.

When the trooper first radioed the police dispatcher to report the stop, a second trooper heard the transmission and immediately responded to the scene. The second trooper, a member of the Illinois State Police Drug Interdiction Team, was accompanied by a dog trained to detect narcotics. He and the dog arrived and walked around defendant’s car while the first trooper was in the process of writing a warning ticket. The dog alerted at the trunk. A search of the trunk revealed marijuana and defendant was placed under arrest. Approximately 10 minutes elapsed between the stop and the arrest.

The circuit court of La Salle County denied defendant’s motion to suppress evidence and quash arrest. After a bench trial, defendant was convicted of cannabis trafficking (720 ILCS 550/5.1(a) (West 1998)), sentenced to a term of 12 years in prison, and ordered to pay a street-value fine of $256,136. The appellate court affirmed, holding that the police are not required to have reasonable suspicion before conducting a canine sniff and that although the license and warrant check improperly extended the duration of the stop in this case, the resulting delay was de minimis. People v. Caballes, No. 3—99— 0932 (2001) (unpublished under Supreme Court Rule 23).

This court reversed, with three justices dissenting. Relying on People v. Cox, 202 Ill. 2d 462, 470-71 (2002), this court held that when a canine sniff is “performed without ‘ “specific and articulable facts” ’ to support its use,” it unjustifiably enlarges “the scope of a routine traffic stop into a drug investigation.” Caballes I, 207 Ill. 2d at 510. Without addressing the appellate court’s conclusion that the duration of the stop was not unjustifiably prolonged, this court concluded that the evidence should have been suppressed. The dissenting justices, relying on City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000), would have affirmed on the basis that a canine sniff is not a search. Caballes I, 207 Ill. 2d at 512 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.).

Although this court did not expressly state that it was conducting its analysis solely under the fourth amendment to the United States Constitution, it did state that it was applying the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), as it had previously done in other cases involving routine traffic stops. Caballes I, 207 Ill. 2d at 508. The majority implicitly and the dissent explicitly (Caballes I, 207 Ill. 2d at 514 (Thomas, J., dissenting, joined by Fitzgerald and Garman, JJ.)), relied on fourth amendment jurisprudence. In Caballes I, this court gave no consideration to defendant’s argument that the evidence against him should have been suppressed under the provisions of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 6).

The Supreme Court of the United States granted the State’s petition for a writ of certiorari. Proceeding from the premise that the “duration of the stop in this case was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop” (Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 846-47, 125 S. Ct. at 837), the Court framed the issue as whether a dog sniff, otherwise conducted in a reasonable manner, changes the character of a traffic stop that is lawful at its inception. Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837.

The Court answered this question in the negative. Official conduct does not constitute a search for fourth amendment purposes unless it compromises a legitimate interest in privacy. Because an individual’s interest in possessing contraband cannot be deemed legitimate, official conduct that merely reveals the possession of contraband does not compromise a legitimate privacy interest. Caballes, 543 U.S. at 408, 160 L. Ed. 2d at 847, 125 S. Ct. at 837. A canine sniff by a dog trained to detect the presence of narcotics discloses only the presence or absence of contraband and, therefore, “does not implicate legitimate privacy interests.” Caballes, 543 U.S. at 409, 160 L. Ed. 2d at 847, 125 S. Ct. at 838. The Court noted that this analysis is consistent with its earlier decision that the use of thermal-imaging equipment to detect the growing of marijuana plants inside a home is an unlawful search. Unlike the canine sniff, which will not reveal noncontraband items of a private nature, thermal imaging may reveal “intimate details” within a home, such as conduct in the bedroom or bathroom. Caballes, 543 U.S. at 409-10, 160 L. Ed. 2d at 848, 125 S. Ct. at 838, citing Kyllo v. United States, 533 U.S. 27, 150 L. Ed. 2d 94, 121 S. Ct. 2038 (2001).

ISSUES

Defendant makes three separate claims on remand. First, he argues that this court should not continue to interpret and apply the search and seizure provision of article I, section 6, of the Illinois Constitution of 1970 in lockstep with the United States Supreme Court’s interpretation and application of the search and seizure clause of the fourth amendment to the United States Constitution. Second, defendant asserts that unless the police have probable cause or reasonable suspicion, the use of a canine sniff during a routine traffic stop violates the privacy clause of article I, section 6, of the Illinois Constitution of 1970. Third, defendant claims that the evidence obtained as a result of the dog sniff should be suppressed because the technique is not sufficiently reliable.

Standard of Review

Defendant proposes de novo review on the basis that this is the proper standard of review of a trial court’s “ultimate finding of probable cause or reasonable suspicion,” citing People v. Sorenson, 196 Ill. 2d 425, 431 (2001).

As for the first two issues raised by defendant, de novo review is appropriate, but not for the reason stated by defendant. We are asked to consider whether to abandon or reaffirm the lockstep doctrine and whether the right to privacy guaranteed by the state constitution is implicated by a dog sniff of a car during a routine traffic stop. These are questions of law, subject to de novo review for that reason. Woods v. Cole, 181 Ill. 2d 512, 516 (1998).

As for the third issue, there is a question of law at issue — whether dog sniffs in general are so unreliable that they should be not allowed at all. We review this question de novo. Woods, 181 Ill. 2d at 516. In addition, we must review the trial court’s factual determination that the police dog, Krott, was well trained and sufficiently reliable that his alert gave the police probable cause to search the trunk of defendant’s car. “[Wjhen a trial court’s ruling on a motion to suppress evidence involves factual determinations and credibility assessments,” the ruling will not be disturbed on appeal unless it is manifestly erroneous. Sorenson, 196 Ill. 2d at 431.

History of the “Lockstep” Doctrine in Illinois

When considering the relationship, if any, between the meaning of the state constitution and the meaning of the federal constitution, there are three possible scenarios. First, a provision may be unique to the state constitution and, therefore, must be interpreted without reference to a federal counterpart. The single-subject rule of the Illinois Constitution of 1970 (Ill. Const. 1970, art. W, § 8(d)) is such a provision.

Second, a provision in the state constitution may be similar to a provision in the federal constitution, but differ from it in some significant respect. The language of such a provision must be given effect. See, e.g., People v. Fitzpatrick, 158 Ill. 2d 360, 364-65 (1994) (finding a statute unconstitutional because it infringed the guarantee of “face-to-face” confrontation then contained in article I, section 8, of the Illinois Constitution, even though the statute would have been deemed constitutional under the sixth amendment to the federal constitution). See also, e.g., Wash. Const., art. I, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law”); State v. Gunwall, 106 Wash. 2d 54, 61-63, 720 P.2d 808, 812-13 (1986) (interpreting this provision to provide broader protection than the fourth amendment and thus requiring a body of state constitutional jurisprudence entirely independent of the fourth amendment).

Third, the provision in the state constitution may be identical to or synonymous with the federal constitutional provision. In the present case, we are asked to reconsider this court’s long-standing position that the search and seizure clause of article I, section 6, of the Illinois Constitution of 1970 should be interpreted in the same manner as the virtually identical search and seizure clause of the fourth amendment to the United States Constitution.

The search and seizure provision of the Illinois Constitution of 1870 provided 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; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the persons or things to be seized.” Ill. Const. 1870, art. II, § 6.

This provision, unlike the search and seizure clauses in the constitutions of some other states, did not predate the adoption of the federal constitution in 1791. See W. Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 501 (1977) (“[T]he drafters of the federal Bill of Rights drew upon corresponding provisions in the various state constitutions. Prior to the adoption of the federal Constitution, each of the rights eventually recognized in the federal Bill of Rights had previously been protected in one or more state constitutions”). Rather, this language was clearly modeled upon the fourth amendment to the United States Constitution, which provides 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const., amend. IV

See also G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 28 (1969) (explaining that the fourth amendment to the United States Constitution is the direct and lineal ancestor of the protection afforded by the Illinois Constitution).

The phrase “supported by affidavit” in the state provision being virtually synonymous with “by Oath or affirmation” in the fourth amendment, this court repeatedly held that the two constitutions should be construed alike. See People v. Castree, 311 Ill. 392, 395 (1924) (“The fourth amendment to the Federal constitution is in practically the same words”); People v. Reynolds, 350 Ill. 11, 16 (1932) (noting that the fourth amendment was “the prototype for section 6 of article 2 of our State constitution and no reason is perceived why the latter should not receive the same interpretation as the former”); People v. Grod, 385 Ill. 584, 592 (1944) (the guarantees of the fourth and fifth amendments “are in effect the same as sections 6 and 10 of article II of the Illinois constitution, and are construed alike”); People v. Tillman, 1 Ill. 2d 525, 529 (1953) (“while in somewhat different language,” the two provisions are “in effect the same” and should be construed alike); People v. Jackson, 22 Ill. 2d 382, 387 (1961) (restating intention to “follow the decisions of the United States Supreme Court on identical State and Federal constitutional problems”).

In 1961, the United States Supreme Court determined that the provisions of the fourth amendment applied to the states via the due process clause of the fourteenth amendment. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961) (finding the federal exclusionary rule, based on the fourth amendment, applicable to the states via the due process clause of the fourteenth amendment). Shortly thereafter, this court stated that even before the Mapp decision, it “had followed the Supreme Court decisions interpreting the fourth amendment in our interpretation of section 6 of article II of the Illinois constitution,” and indicated its intent to continue this practice. People v. Williams, 27 Ill. 2d 542, 544 (1963).

The “lockstep doctrine,” as it has come to be known, thus has deep roots in Illinois and was firmly in place before the adoption of the 1970 constitution. This fact would have been known to the drafters of the Bill of Rights of the 1970 constitution, to the constitutional delegates who voted to adopt the present language, and to the voters who approved the new constitution. See People v. Tisler, 103 Ill. 2d 226, 241-42 (1984) (summarizing the committee report, the proceedings of the constitutional convention, and the explanation provided to voters).

When the new state constitution was adopted in 1970, article II, section 6, was replaced with the following language:

“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. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.” Ill. Const. 1970, art. I, § 6.

This provision employs more modern usage (referring to “possessions” rather than “effects”), and a more accessible grammatical style (making “people” the subject of the sentence, rather than the “right of the people”). In addition, the provision was substantively changed by inclusion of two new clauses, each of which created a right not expressly stated in the 1870 constitution — the right to be secure against unreasonable invasions of privacy by the state and the right to be secure against unreasonable interceptions of communications by the state.

The question of whether to continue to adhere to the lockstep doctrine under the new constitution or to abandon it was first considered by this court in People v. Rolfingsmeyer, 101 Ill. 2d 137 (1984). At issue was whether the implied-consent statute of the Illinois Vehicle Code violated the protection against compelled self-incrimination contained in the fifth amendment to the United States Constitution and, in almost identical language, in article I, section 10, of the Illinois Constitution of 1970. This court reviewed the proceedings of the constitutional convention and found nothing to indicate an intent to provide broader protection under the state constitution and “a general recognition and acceptance of interpretations by the United States Supreme Court.” Rolfingsmeyer, 101 Ill. 2d at 142. A member of the Bill of Rights Committee explained that the committee considered and rejected proposals to alter the language of the self-incrimination provision, but decided “ ‘that the existing state of the law would remain unchanged.’ ” Rolfingsmeyer, 101 Ill. 2d at 142, quoting 3 Record of Proceedings, Sixth Illinois Constitutional Convention 1376-80 (hereinafter cited as Proceedings). The existing state of the law at that time was lockstep interpretation of identical or nearly identical language. In the end, this court held that the implied-consent statute did not violate the privilege against self-incrimination in either the federal or the state constitution. Rolfingsmeyer, 101 Ill. 2d at 142.

In a special concurrence, one justice stated many of the arguments made by the defendant in the present case. He noted that this court is not “bound to automatically follow the decisions of the United States Supreme Court interpreting the comparable provision contained in the fifth amendment of the Federal Constitution.” Rolfingsmeyer, 101 Ill. 2d at 143 (Simon, J., specially concurring). The concurring justice criticized the majority for assuming that when the same language appears in the two constitutions, it necessarily has the same content unless some indication to the contrary is found in the report of proceedings of the constitutional convention: “This presumption is the reverse of the correct one and inverts the proper relationship between the State and Federal constitutions.” Rolfingsmeyer, 101 Ill. 2d at 143 (Simon, J., specially concurring). In contrast, he asserted, there is “no evidence in the record of proceedings of the Illinois constitutional convention to indicate that the framers of article I, section 10, intended to limit the content of the self-incrimination clause to the precedents of the United States Supreme Court.” Rolfingsmeyer, 101 Ill. 2d at 144 (Simon, J., specially concurring). Thus, he concluded, the framers of the new state constitution “did not reject further development of the law by this court or by the Supreme Court of the United States.” Rolfingsmeyer, 101 Ill. 2d at 145 (Simon, J., specially concurring).

Later that same year, the issue surfaced again in the context of search and seizure. In People v. Hoskins, 101 Ill. 2d 209 (1984), this court permitted the admission of drags into evidence after they were found in a search of the defendant’s purse, which she had either thrown to the ground or dropped while fleeing from officers who were attempting to arrest her for prostitution. Hoskins was argued and decided as a fourth amendment question, but the court added, in dicta, that “[a]ny contention that section 6 of the bill of rights in our own constitution was to be interpreted differently from the Supreme Court’s interpretations of the search provisions of the fourth amendment to the United States Constitution cannot be supported” because the “constitutional debates do not indicate any wish or intent to provide protections against unreasonable searches and seizures broader than those existing under decisional interpretations under the fourth amendment to the United States Constitution.” Hoskins, 101 Ill. 2d at 218. In a dissent, the same justice wrote that “[t]he time has come for the Illinois Supreme Court to recognize its independent obligation to interpret the bill of rights contained in the Illinois Constitution, and to make its own assessment of the appropriate balance between the privacy rights of our citizens and the legitimate requirements of law enforcement.” Hoskins, 101 Ill. 2d at 236 (Simon, J., dissenting).

This court’s decision in People v. Tisler, 103 Ill. 2d 226, 245 (1984), is generally considered to be the seminal case on the question of lockstep interpretation of the search and seizure provisions of the two constitutions. Before delving into the lockstep analysis in Tisler, however, some background is in order.

In People v. Gates, 85 Ill. 2d 376 (1981), rev’d, Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983), this court applied the two-prong test announced in Aguilar v. Texas, 378 U.S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964), and explained further in Spinelli v. United States, 393 U.S. 410, 21 L. Ed. 2d 637, 89 S. Ct. 584 (1969), to determine that a warrant was not properly issued based on a tip contained in an anonymous letter that did not contain any statement showing that the author acquired the information through firsthand or personal knowledge. At the time our 1970 constitution was adopted, the Aguilar-Spinelli test was part of the dual state/federal jurisprudence of search and seizure that existed under our long-standing lockstep approach. When the Supreme Court decided Gates, however, it abandoned the Aguilar-Spinelli test in favor of a new totality-of-the-circumstances test. Gates, 462 U.S. at 238-39, 76 L. Ed. 2d at 548, 103 S. Ct. at 2332. This court subsequently applied the new, federal Gates test for the existence of probable cause for a warrant based on an anonymous tip, but did not expressly reject the Aguilar-Spinelli approach. See People v. Exline, 98 Ill. 2d 150 (1983) (upholding the warrant under either the AguilarSpinelli test or the Gates totality-of-the-circumstances test); but see Exline, 98 Ill. 2d at 157-58 (Goldenhersh, J., dissenting, joined by Simon, J.) (noting that this court is “not required to blindly follow the action taken by the Supreme Court in determining the standards applicable under our own constitution,” and favoring retention of the Aguilar-Spinelli test under the Illinois Constitution).

In Tisler, unlike in Exline, the question was squarely presented when the defendant argued, as a matter of state constitutional law, that this court should reject Gates and retain Aguilar-Spinelli. Tisler, 103 Ill. 2d at 241. This court looked to the drafters’ choice of search and seizure language “nearly the same as that of the fourth amendment,” the report of the Bill of Rights Committee, the record of proceedings, and the informational materials distributed to voters to determine that in adopting article I, section 6, the constitutional convention “manifested no intent to expand the nature of the protection afforded by the fourth amendment.” Tisler, 103 Ill. 2d at 241-42. Thus, when this court employed the Aguilar-Spinelli test prior to the adoption of the 1970 constitution,

“[W]e were not establishing the Aguilar test as defining the extent of the protection afforded by the Illinois Constitution. Those decisions, in effect, held that the protection against unreasonable searches under the Illinois Constitution is measured by the same standards as are used in defining the protection against unreasonable searches contained in the fourth amendment to the United States Constitution.” Tisler, 103 Ill. 2d at 243.

Notwithstanding our continued reliance on the lockstep approach to the interpretation of the search and seizure provision of the state constitution, this court acknowledged that it was free to construe the state constitution differently from the federal constitution (Tisler, 103 Ill. 2d at 243), and formulated a test for determining when the state constitution need not be interpreted in lockstep with the federal constitution:

“After having accepted the pronouncements of the Supreme Court in deciding fourth amendment cases as the appropriate construction of the search and seizure provisions of the Illinois Constitution for so many years, we should not suddenly change course and go our separate way simply to accommodate the desire of the defendant to circumvent what he perceives as a narrowing of his fourth amendment rights under the Supreme Court’s decision in Illinois v. Gates. Any variance between the Supreme Court’s construction of the provisions of the fourth amendment in the Federal Constitution and similar provisions in the Illinois Constitution must be based on more substantial grounds. We must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal Constitution, after which they are patterned.” Tisler, 103 Ill. 2d at 245.

A concurring justice noted the “developing interest in State constitutionalism” among legal scholars. Tisler, 103 Ill. 2d at 253 (Ward, J., concurring). Beginning with the principle that when interpreting a constitution, a court must “ascertain and give effect to the intent of the framers of it and the citizens who have adopted it” (Tisler, 103 Ill. 2d at 254 (Ward, J., concurring)), the concurring justice opined that:

“If these principles of constitutional construction were to be ignored critics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves. Courts are not legislatures, and neither are they constitutional framers and adopters of constitutions. What Justice Powell said in another context is not without relevance: ‘We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.’ ” Tisler, 103 Ill. 2d at 255 (Ward, J., concurring), quoting United States v. Richardson, 418 U.S. 166, 188, 41 L. Ed. 2d 678, 695, 94 S. Ct. 2940, 2952 (1974) (Powell, J., concurring).

After reviewing the research papers and other materials made available to the delegates, the concurring justice concluded that they were well informed regarding their ability to expand the protections guaranteed by the federal Bill of Rights as applied to the states through the fourteenth amendment. Based on these materials, he further concluded that the delegates made a “conscious decision” to leave the search and seizure provision unchanged but to add two new provisions dealing with privacy and eavesdropping. Tisler, 103 Ill. 2d at 255-58 (Ward, J., concurring).

In subsequent years, this court has often reiterated its intent to utilize the lockstep approach when construing the search and seizure clause of article I, section 6. See, e.g., People v. Mitchell, 165 Ill. 2d 211, 217-22 (1995) (although a state is free to construe its own constitution as providing greater protection than comparable provisions in the federal constitution, the search and seizure provision of our state constitution was not intended to be broader than the search and seizure provision of the fourth amendment); People v. Cox, 202 Ill. 2d 462, 482 (2002) (reaffirming lockstep principle with respect to the search and seizure provision of the state constitution and the fourth amendment); People v. Lampitok, 207 Ill. 2d 231, 240-41 (2003) (noting this court’s long-standing acknowledgment that the fourth amendment and the search and seizure provision of article I, section 6, of the Illinois Constitution provide “the same level of protection,” and that unless a successful argument is made that in a particular situation the Illinois Constitution provides broader protection, Illinois courts will follow United States Supreme Court decisions on search and seizure issues).

Nevertheless, this court has, on occasion, departed from strict lockstep interpretation when circumstances warrant. In People ex rel. Daley v. Joyce, 126 Ill. 2d 209 (1988), the issue was the constitutionality of section 115 — 1 of the Code of Criminal Procedure of 1963, which provided the State with the right to a jury in certain criminal trials. Federal constitutional law permitted a statute that required government consent to a defendant’s waiver of a jury trial. Joyce, 126 Ill. 2d at 213, citing Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965) (upholding Federal Rule of Criminal Procedure 23(a)). If this court had interpreted article I, section 13, of the state constitution in lockstep with federal constitutional law, it would have upheld the constitutionality of the statute. Instead, this court looked to the language of the state constitution, the history of the provisions dealing with the right to a jury trial, including the committee reports and debates, and the common law decisions of this court with respect to jury trials that, the debates revealed, the drafters intended to adopt as constitutional principles. Based solely upon Illinois constitutional principles, this court found section 115—1 unconstitutional and held that in a criminal prosecution, only the defendant has a right to a jury trial. Joyce, 126 Ill. 2d at 222.

In People v. McCauley, 163 Ill. 2d 414 (1994), this court considered whether a defendant’s waiver of his fifth amendment right to counsel was valid where he was denied access to an attorney hired by his family, and who was present at the police station during the interrogation, trying unsuccessfully to see him. Based on the Supreme Court’s decision in Moran v. Burbine, 475 U.S. 412, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986), this court concluded that the police conduct in denying the attorney access to his client did not violate the fifth amendment. McCauley, 163 Ill. 2d at 421. This court went on, however, to consider whether such conduct by police violated the due process guarantee of article I, section 2, of the state constitution. McCauley, 163 Ill. 2d at 425-47. After an extensive analysis of this court’s previous decisions, decisions of the courts of our sister states, and, most importantly, the intent of the drafters of the 1970 constitution (McCauley, 163 Ill. 2d at 439-40), this court concluded that the defendant’s right to due process under the state constitution was violated when he was denied the benefit of counsel during his custodial interrogation. McCauley, 163 Ill. 2d at 444. For example, we noted that the debates of the constitutional convention revealed an intention that the “then-existing Federal constitutional principles regarding incommunicado interrogation” remain unchanged under the new constitution. McCauley, 163 Ill. 2d at 439. When the Supreme Court decided Burbine, it diminished the protections previously provided under the fifth amendment right to counsel.

In McCauley, however, we did not ascribe a different interpretation to a provision of the state constitution than the Supreme Court had ascribed to the corresponding federal constitutional provision. Rather, we determined that the police conduct at issue implicated state due process concerns. McCauley, therefore, does not represent a departure from lockstep interpretation of identical or nearly identical language. See Relsolelo v. Fisk, 198 Ill. 2d 142, 150 (2001) (distinguishing McCauley and holding that the self-incrimination clause of article I, section 10, of the Illinois Constitution is to be interpreted in lockstep with the fifth amendment because “the substantial grounds necessary for this court to depart from the federal interpretation of the self-incrimination clause are not present in this case”).

In People v. Washington, 171 Ill. 2d 475 (1996), however, this court did make an exception to the lockstep doctrine. This court held, as a matter of due process under the state constitution, that a freestanding claim of innocence is cognizable in a proceeding under the state Post-Conviction Hearing Act, even though the Supreme Court decided in Herrera v. Collins, 506 U.S. 390, 122 L. Ed. 2d 203, 113 S. Ct. 853 (1993), that such a claim was not cognizable as a violation of due process in a federal habeas corpus proceeding. Several grounds for departure from the Supreme Court’s ruling were mentioned: Herrera was “a conflicted decision”; the record of proceedings of the constitutional convention did “not reveal anything as to what the drafters intended” in this context; the McCauley decision demonstrated this court’s willingness to look to this state’s historical approach to a due process question; and refusal to consider a claim of actual innocence would be fundamentally unfair and would shock the conscience. Washington, 171 Ill. 2d at 485-88. A commentator characterized this court’s decision in Washington as “[implicitly eschewing lockstep.” J. Reddy, 1996 Illinois Supreme Court Criminal Law Opinions: Not Marching in Lockstep, 85 Ill. B.J. 270, 270 (1997). Indeed, the dissenting justices in Washington criticized the majority for reaching its decision without specifically engaging in the analysis “exemplified in Tisler.” Washington, 171 Ill. 2d at 500 (Miller, J., dissenting, joined by Bilandic, C.J.).

This court appeared to depart from the lockstep approach in People v. Krueger, 175 Ill. 2d 60 (1996), by declining to follow the holding of Illinois v. Krull, 480 U.S. 340, 94 L. Ed. 2d 364, 107 S. Ct. 1160 (1987), which recognized a good-faith exception to the exclusionary rule when the search was authorized by a statute later determined to be unconstitutional. The threshold issue in Krueger was the constitutionality of a state statute permitting the issuance of a warrant authorizing “no-knock” entry into a building where the judge found that the occupant had possessed firearms within a reasonable period of time prior to the application for the warrant. Krueger, 175 Ill. 2d at 64. Citing Tisler, this court engaged in lockstep analysis of the fourth amendment and article I, section 6, of the state constitution to determine whether the statute was constitutional. Krueger, 175 Ill. 2d at 65-69. Finding the statute unconstitutional under fourth amendment principles, the next question was whether the evidence seized during the search should be suppressed. This court concluded that the “Krull good-faith exception does not comport with article I, section 6, of the Illinois Constitution of 1970.” Krueger, 175 Ill. 2d at 70. Noting this state’s history of applying the exclusionary rule under the state constitution as well as a long-standing tradition of barring evidence gathered under the authority of an unconstitutional statute, this court rejected the Krull good-faith rule as creating a “erace period for unconstitutional search and seizure legist ion,” during which constitutional rights of Illinois c zens could be violated with impunity. Krueger, 175 Ill. 2d at 75. Thus, this court “knowingly depart[ed]” from the lockstep tradition to give effect to another tradition — the exclusion of evidence gathered in violation of the state constitution’s prohibition of unreasonable searches and seizures. Krueger, 175 Ill. 2d at 74, citing People v. Brocamp, 307 Ill. 448 (1923) (noting the Supreme Court’s adoption of a federal exclusionary rule in Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914), and adopting a similar rule under the state constitution).

The same commentator noted that:

“[I]n both Washington and Krueger, the court found broader protections for Illinois citizens than those afforded under recent U.S. Supreme Court decisions without any showing of a difference in the language of the constitutional provisions being construed and without any reference to the debates of the Illinois Constitutional Convention.” 85 Ill. B.J. at 271.

He further opined that this court had “clearly moved from lockstep application to mere deference. That is, the court will continue to apply U.S. Supreme Court precedent when it is persuasive.” 85 Ill. B.J. at 271.

We rejected that reading, however, in People v. Bolden, 197 Ill. 2d 166, 179-80 (2001), in which we explained that:

“We do not construe Krueger as suggesting that the search and seizure clause of article I, section 6, of the Illinois Constitution must be interpreted more expansively than the corresponding right found in the fourth amendment. The exclusionary rule is a judicially created remedy, and its history in Illinois may he traced to this court’s decision in People v. Brocamp, 307 Ill. 448 (1923).”

Thus, in Krueger, we did not depart from lockstep interpretation — the challenged statute was unconstitutional under both the state and federal constitutions. Krueger was a case about remedies. We construed state law as providing a remedy for the constitutional violation even though the federal constitution did not require one.

Against the backdrop of this court’s decades-long history of lockstep interpretation of cognate provisions of the state and federal constitutions, as well as the making of occasional exceptions to the lockstep doctrine, we now turn to defendant’s argument that we should abandon lockstep entirely and set about developing an independent body of state constitutional law.

Continued Adherence to Illinois’ Limited Lockstep Doctrine

Defendant asserts that the lockstep doctrine has been adopted by this court as a “governing rule,” rather than a “discretionary practice.” He argues for abandonment of this approach and states that it is “vital as a matter of state sovereignty and federalism” that this court independently examine constitutional issues under the state constitution rather than consider itself bound by the interpretation of the cognate provisions of the United States Constitution by the United States Supreme Court. Doing otherwise, he claims, is an abandonment by this court of its duty and a forfeiture of the sovereignty of the State of Illinois. With specific reference to his own claim, defendant notes that our use of the lockstep approach results in the Supreme Court’s being able to review “pro-defense decisions” of this court, such as those reversing a conviction or affirming the suppression of evidence. He argues that this is unfair to defendants who have obtained a favorable ruling from an Illinois court when that decision is subsequently reversed by the Supreme Court. Our lockstep approach, according to defendant, permits “a state court to avoid accountability by hiding behind federal law” and “diminishes the experimental function that federalism allows.”

Amicus ISBA also urges this court to reject the lockstep doctrine and to develop an independent body of law interpreting article I, section 6, of the Illinois Constitution. Amicus ACLU maintains that this court’s lockstep approach violates the judicial oath and does violence to the principle that it is this court’s nondelegable duty to construe and interpret the Illinois Constitution. The ACLU states that:

“By ‘harnessing’ its interpretation of the Illinois Constitution to the United States Supreme Court’s jurisprudence, this Court would improperly abdicate its non-delegable constitutional duty to ‘say what the law is.’ In doing so, this Court would undermine the sovereignty and independence of the State of Illinois, and degrade both this Court and the rights of Illinois citizens.”

Further, with respect to the particular facts of this case, the ACLU asserts:

“A suspicionless canine sniff undeniably alters the scope of a traffic stop, as this investigative technique categorically transforms traffic stops into criminal investigations. Furthermore, the presence of a drug-sniffing dog fundamentally changes the traffic stop from a minor, unintrusive interaction with law enforcement into an intrusive, humiliating, and often intimidating encounter. It is also a practice that facilitates racial profiling.”

The ACLU concludes that this court should interpret article I, section 6, of the Illinois Constitution to be more protective of individual rights than the fourth amendment requires.

In response, the State points out that nothing in the text or history of the search and seizure clause of article I, section 6, suggests an intent that it be interpreted differently from the fourth amendment, at least in the context of traffic stops or the use of trained canines by the police. The State also argues that the doctrine of stare decisis weighs heavily in favor of not overruling Tisler, Mitchell, Bolden, and their progeny.

In 1977, just seven years after Illinois adopted its present constitution, an influential article by Justice William J. Brennan, Jr., appeared in the Harvard Law Review. See 90 Harv. L. Rev. 489. Justice Brennan urged state courts to view their state constitutions as “a font of individual liberties,” that is, as a source of positive rights and liberties entitled to protection beyond that required by the United States Supreme Court’s interpretation of the federal constitution. 90 Harv. L. Rev. at 491. He criticized a trend in decisions of the Court that, in his opinion, pulled back from earlier, more protective rulings. 90 Harv. L. Rev. at 495 & nn.47-51 (and cases cited).

Justice Brennan further noted, at least with respect to state constitutions predating the drafting of the Bill of Rights, that these state constitutions were not adopted “to mirror the federal Bill of Rights.” Rather, he observed that “prior to the adoption of the fourteenth amendment [in 1868], these state bills of rights, independently interpreted, were the primary restraints on state action since the federal Bill of Rights had been held inapplicable.” 90 Harv. L. Rev. at 501-02.

In Justice Brennan’s view, many “door-closing decisions” had unfortunately been rendered by the Court in the name of federalism. The Court, he said, had “condoned both isolated and systematic violations of civil liberties.” 90 Harv. L. Rev. at 502. Justice Brennan concluded by urging state courts to “step into the breach” and to give effect to state constitutions that provide “a double source of protection for the rights of our citizens.” 90 Harv. L. Rev. at 503.

Thus began the scholarly debate regarding the relationship between cognate provisions of the state and federal constitutions. The approach urged by Justice Brennan was criticized as “programmatic” and “result-oriented.” L. Friedman, The Constitutional Value of Dialogue and the New Judicial Federalism, 28 Hastings Const. L.Q. 93, 94 (2000). It was suggested that Justice Brennan’s encouragement of the rise of state constitutionalism was merely a response to the changing makeup of the Court. See 28 Hastings Const. L.Q. at 94 n.3. See also W. Brennan, The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. Rev. 535, 547-48 (1986) (noting “an unmistakable trend in the Court to read the guarantees of individual liberty restrictively, which means that the content of the rights applied to the states is likewise diminished”; and that “the Court’s contraction of federal rights and remedies on grounds of federalism should be interpreted as a plain invitation to state courts to step into the breach”).

Other authors and some state supreme courts embraced Brennan’s call for a “new judicial federalism.” See 28 Hastings Const. L.Q. at 94 nn.4, 5. In this view, courts that find it unnecessary to distinguish between state and federal constitutional provisions when they use the same language “reduce[ ] state constitutional law to a redundancy and greatly discourage [ ] its use and development.” J. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 804 (1992). Defendant bases his argument, in large part, on T. McAf-fee, The Illinois Bill of Rights And Our Independent Legal Tradition: A Critique Of The Illinois Lockstep Doctrine, 12 S.I.U. L.J. 1, 87 (1987) (urging the Illinois Supreme Court to abandon lockstep analysis of constitutional issues because lockstep “limit[s] the judicial role in giving effect to the promise held out” by the guarantees of the state constitution).

Both before and since Justice Brennan’s call to action, state courts have adopted various methods for construing cognate provisions of the state and federal constitutions. One method is the lockstep approach, by which the state court binds itself to following prior Supreme Court interpretation of the federal constitutional text.

“Under the lockstep approach, the state constitutional analysis begins and ends with consideration of the U.S. Supreme Court’s interpretation of the textual provision at issue. On this approach, federal rulings are regarded as having attained £a presumption of correctness’ from which the state should he loathe to part. In other words, congruence with federal decisional law is assumed to be the norm, and deviation is for all intents and purposes impossible. Such an approach is justified, at least in regard to the enforcement of the criminal law, by an interest in uniformity, which urges the development of identical state and federal rules to control government conduct in regard to procedural issues.” 28 Hastings Const. L.Q. at 102-03.

A second approach is based on the application of criteria by the state court to determine whether factors unique to the state weigh in favor of departing from the Supreme Court’s interpretation of the same constitutional language. This has been referred to the “interstitial approach.” 90 Mich. L. Rev. at 774.

“Under the interstitial approach, the court asks first whether the right being asserted is protected under the federal constitution. If it is, then the state constitutional claim is not reached. If it is not, then the state constitution is examined. [Citation.] A state court adopting this approach may diverge from federal precedent for three reasons: a flawed federal analysis, structural differences between state and federal government, or distinctive state characteristics.” State v. Gomez, 122 N.M. 777, 783, 932 P.2d 1, 7 (1997).

Other sources describe the interstitial approach as a state court’s turning to the state constitution for guidance only “if federal constitutional law approves the challenged state action, or is ambiguous.” 90 Mich. L. Rev. at 774-75. Under either of these formulations of the interstitial approach, the focus of constitutional inquiry is on “the ways in which the state and federal constitutions differ.” Federal constitutional decisions are the starting point, and the party urging greater protection than federal law affords must argue that the state and federal constitutions “differ in dispositive ways.” 90 Mich. L. Rev. at 777-78.

A third approach, that urged by defendant and his amici, is the primacy or primary approach, under which “the state court undertakes an independent [state] constitutional analysis, using all the tools appropriate to the task, and relying upon federal decisional law only for guidance.” 28 Hastings Const. L.Q. at 95.

When a state court employs the interstitial approach or the primacy approach, it can insulate its decision from Supreme Court review by stating “clearly and expressly that it is alternatively based on bona fide, separate, adequate, and independent [state] grounds.” Michigan v. Long, 463 U.S. 1032, 1041, 77 L. Ed. 2d 1201, 1214, 103 S. Ct. 3469, 3476 (1983).

This court’s approach to analysis of cognate provisions in the Illinois and United States Constitutions has been described as “lockstep.” Indeed, this court itself has employed this term. However, on further consideration, it is clear that it is an overstatement to describe our approach as being in strict lockstep with the Supreme Court. The approach that this court has taken is more properly described as either an interstitial or perhaps a limited lockstep approach. While we have not unequivocally adopted the interstitial approach as it has been broadly defined by the New Mexico court (Gomez, 122 N.M. at 783, 932 P.2d at 7), we have, at the very least, embraced a narrow version of the interstitial approach, under which we recognize several justifications for departing from strict lockstep analysis. This approach has been described as one under which a court will “ ‘assume the dominance of federal law and focus directly on the gap-filling potential’ ” of the state constitution. 28 Hastings Const. L.Q. at 104, quoting Developments in the Law — The Interpretation of State Constitutional Rights, 95 Harv. L. Rev. 1324, 1357 (1982). Under this approach, this court will “look first to the federal constitution, and only if federal law provides no relief turn to the state constitution to determine whether a specific criterion— for example, unique state history or state experience— justifies departure from federal precedent.” 28 Hastings Const. L.Q. at 104. To avoid confusing this court’s approach with the very broad definition of the interstitial approach adopted by some courts, we shall refer to it, for lack of a better term, as our “limited lockstep approach.”

States applying the interstitial or criteria approach have adopted various criteria. New Jersey courts, for example, will look to the textual language (whether there is any significant difference between the phrasing of the state and federal provisions), the legislative history of the state constitutional provision, preexisting state law, state traditions, and public attitudes. See State v. Hunt, 91 N.J. 338, 363-68, 450 A.2d 952, 965-67 (1982) (concluding that with respect to telephone billing records, the state constitution did provide greater privacy rights than the federal constitution).

The criteria adopted by this court in Tisler are somewhat more limited:

“We must find in the language of our constitution, or in the debates and the committee reports of the constitutional convention, something which will indicate that the provisions of our constitution are intended to be construed differently than are similar provisions in the Federal Constitution, after which they are patterned.” Tisler, 103 Ill. 2d at 245.

See also 28 Hastings Const. L.Q. at 105 (noting that the criteria used to decide when a departure from lockstep is justified “need not be uniform from jurisdiction to jurisdiction,” and using the criteria formulated in Tisler and cited in DiGuida as an example), citing People v. DiGuida, 152 Ill. 2d 104 (1992).

In Krueger, without expressly stating that we were adopting additional criteria, we nevertheless found that state tradition and preexisting state law, as set out in Brocamp, necessitated the application of the state exclusionary rule, even though no remedy for the underlying constitutional violation was required under the fourth amendment. Similarly, in Washington, we looked to our state’s traditions and values to determine that denial of a new trial on the basis of evidence of actual innocence would be fundamentally unfair and would shock the conscience. Washington, 171 Ill. 2d at 487-88.

Defendant calls our attention to decisions of the high courts of several of our sister states, in which the strict lockstep doctrine has been rejected. In State v. Russell, 477 N.W.2d 886, 889 n.3 (Minn. 1991), the Minnesota Supreme Court employed a more stringent standard of review than mere rational basis in its equal protection analysis under the state constitution, although the “state constitution embodies principles of equal protection synonymous to the equal protection clause of the Fourteenth Amendment.”

In State v. Sullivan, 348 Ark. 647, 649-52, 74 S.W.3d 215, 217-18 (2002), Arkansas’ highest court declined to follow the decision of the United States Supreme Court in Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), and held, as a matter of state constitutional law, that a pretexual arrest is unreasonable police conduct warranting application of the exclusionary rule. The Arkansas court noted that the wording of the state search and seizure provision and the fourth amendment’s search and seizure provision are “virtually identical” and that in some contexts, it had interpreted the words in lockstep. Sullivan, 348 Ark. at 650-51, 74 S.W.3d at 217-18. However, the court noted that in other contexts it would “provide more protection under the Arkansas Constitution than that provided by the federal courts.” Sullivan, 348 Ark. at 652, 74 S.W.3d at 218. The “pivotal inquiry in this regard” was “whether this court has traditionally viewed an issue differently than the federal courts.” Because the Arkansas court had “considered pretextual arrests to be unreasonable for over twenty years,” the remedy of application of the exclusionary rule was proper. Sullivan, 348 Ark. at 652, 74 S.W.3d at 218-19. We note that this result is not unlike this court’s decision in Krueger, in which a long-standing state tradition mandated application of the exclusionary rule.

Finally, in State v. Gomez, 122 N.M. 777, 932 P.2d 1 (1997), the issue was whether a warrantless search of a parked car and its contents, performed after the arrest of the car’s owner, required a particularized showing of exigent circumstances to be permissible under the state constitution. Gomez, 122 N.M. at 780-81, 932 P.2d at 4-5. The Supreme Court of New Mexico rejected the primacy approach and specifically adopted the interstitial approach to state constitutional interpretation because:

“ ‘[w]hen federal protections are extensive and well-articulated, state court decisionmaking that eschews consideration of, or reliance on, federal doctrine not only will often be an inefficient route to an inevitable result, but also will lack the cogency that a reasoned reaction to the federal view could provide, particularly when parallel federal issues have been exhaustively discussed by the United States Supreme Court and commentators.’ ” Gomez, 122 N.M. at 783, 932 P.2d at 7, quoting 95 Harv. L. Rev. at 1357.

The New Mexico court found that the interstitial approach effectively advanced the goal of preserving national uniformity in the development and application of the fundamental rights guaranteed by both the state and federal constitutions. Gomez, 122 N.M. at 784, 932 P.2d at 8.

In sum, on the basis of the scholarly literature, the practices of other states, and public policy, defendant and his amici argue for abandonment of the limited lockstep approach taken by this court in the past and for adoption of the primacy approach, under which this court would begin to write on an essentially blank slate a jurisprudence of state constitutional law without regard to federal decisional law except, perhaps, as persuasive authority. See 28 Hastings Const. L.Q. at 106-08 (describing the process of primary state constitutional analysis).

This argument implicates the principle of stare decisis, which “expresses the policy of the courts to stand by precedents and not to disturb settled points.” Neff v. George, 364 Ill. 306, 308-09 (1936). Thus, we have expressed our agreement with the United States Supreme Court’s pronouncements on this matter: “ ‘Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.” [Citation.]’ ” People v. Jones, 207 Ill. 2d 122, 134 (2003), quoting Payne v. Tennessee, 501 U.S. 808, 827, 115 L. Ed. 2d 720, 737, 111 S. Ct. 2597, 2609 (1991), quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 76 L. Ed. 815, 823, 52 S. Ct. 443, 447 (1932).

In the end, we reaffirm our commitment to limited lockstep analysis not only because we feel constrained to do so by the doctrine of stare decisis, but because the limited lockstep approach continues to reflect our understanding of the intent of the framers of the Illinois Constitution of 1970. This court’s jurisprudence of state constitutional law cannot be predicated on trends in legal scholarship, the actions of our sister states, a desire to bring about a change in the law, or a sense of deference to the nation’s highest court. See Tisler, 103 Ill. 2d at 255 (Ward, J., concurring) (noting that if the court were to stray from established principles of constitutional construction “critics not unreasonably would declare it judicial arrogance for courts to say that their power to construe constitutions was limited only by the restraints courts might impose upon themselves”). Rather, our choice of a rule of decision on matters governed by both the state and federal constitutions has always been and must continue to be predicated on our best assessment of the intent of the drafters, the delegates, and the voters— this is our solemn obligation.

In keeping with this obligation, and based on its understanding of the intent of the drafters, this court adopted a limited lockstep approach in Tisler and modified it in Krueger and Washington to allow consideration of state tradition and values as reflected by long-standing state case precedent. This limited lockstep approach is not a surrender of state sovereignty or an abandonment of the judicial function. It is, instead, based on the premise that the drafters of the 1970 constitution and the delegates to the constitutional convention intended the phrase “search and seizure” in the state document to mean, in general, what the same phrase means in the federal constitution.

Application of the Limited Lockstep Doctrine

Defendant argues that, notwithstanding the United States Supreme Court’s interpretation of the search and seizure clause of the fourth amendment, this court should consider a canine sniff to be a “search,” within the meaning of article I, section 6. He observes, correctly, that state courts are free to independently construe their state constitutions to provide more protection than the federal constitution. He offers decisions from the courts of our sister states that have imposed a requirement of reasonable, articulable suspicion of criminal activity before a dog sniff may be conducted.

In State v. Carter, 697 N.W.2d 199, 210 (Minn. 2005), the Supreme Court of Minnesota held that a dog sniff of a self-storage unit was a search within the meaning of the article I, section 10, of the Minnesota Constitution. This provision is virtually identical to the fourth amendment (see Minn. Const., art. I, § 10), but under Minnesota law, decisions of the United States Supreme Court interpreting the language are merely persuasive, not authoritative. Carter, 697 N.W.2d at 210.

The Supreme Court of Pennsylvania ruled in Commonwealth v. Johnston, 515 Pa. 454, 466, 530 A.2d 74, 79 (1987), that although a dog sniff of the outside of a storage locker was not a search for fourth amendment purposes, it nevertheless violates state law unless the police are “able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test,” and “the police are lawfully present in the place where the canine sniff is conducted.” Under this holding, the police are not permitted to use a narcotics-detection dog or “any other crime detection device, at random and without reason.” Johnston, 515 Pa. at 465, 530 A.2d at 79. The wording of article I, section 8, of the Pennsylvania Constitution is also almost identical to that of the fourth amendment. See Pa. Const., art. I, § 8.

Finally, defendant cites McGahan v. State, 807 P.2d 506 (Alaska App. 1991), another case in which a state court held that its state constitution requires police officers to have reasonable suspicion before conducting a warrantless canine sniff of the exterior of a warehouse. A previous appellate court decision in that state had held that a canine sniff of lugga