New York Court Rules Dog Sniff of a Person Constitutes Fourth Amendment Search

The police often rely on trained narcotics-detection dogs to alert for drugs. How far the police can use those dogs under the Fourth Amendment has led to a lot of cases. Today the New York Court of Appeals added an interesting one on a really interesting and important question: Is a dog sniff of a person in a public area a Fourth Amendment search?

First, some context. The Supreme Court has held that a dog sniff in a public area is not a search. It reached that ruling in cases that happened to involve a sniff of luggage and a sniff around a car. When confronted with a dog sniff on a home front porch, however, the Court ruled that the entry of the dog on to the porch was a search because it went beyond the implied license of the area around the home, the so-called curtilage. The “search” was the entry of the dog within the private area of the curtilage with intent to do a sniff, not the sniff itself.

So what about a dog sniff of a person in a public area? The curtilage concept has only been applied to homes, not people. Does that mean dogs can sniff a person? It’s clear that a dog sniff is a search of the dog actually touches the person. But what if the dog just comes close to the person, without touching them? Is that a search?

That was the issue in today’s ruling in People v. Butler. After observing what they think is a hand-to-hand drug transaction, officers see the suspect get in his car. They pull him over for a traffic violation. He steps out of his car, and officers notice a big bulge in his pants that he claims is $1,000 in cash. Officers get the narcotics-detection dog, a Belgian Malinois named Apache, to smell around the car. Apache alerts.

They then let the dog sniff around the suspect, Butler. The dog alerted again, “put its nose in the defendant’s groin/button region, and sat, altering the officer that it had located narcotics.” There was no evidence that Apache had actually touched Butler. But he had put his nose near Butler’s groin.

That’s a search, the New York Court of Appeals ruled:

A few thoughts. I’ll start with some doctrinal points, and then turn to more practical ones.

First, the Supreme Court has adopted a particular rationale for why a dog sniff is not a search, sometimes called the binary search doctrine. The well-trained dog will only alert for the presence or absence of illegal drugs, the argument goes, and there is no privacy right invaded by only learning that drugs are present or absent. That rationale, and how to apply it here, is pretty much absent from the New York Court of Appeals’ opinion.

The New York court also seems to suggest that there is a curtilage around a person. That’s new! The curtilage concept originated in common law crimes about burglary, where the area immediately around the home was used as a the home. As far as I know, it has only been applied to homes. Extending it to the area around people is pretty novel. It would have been helpful for the court to more directly acknowledge that this is what it was doing, and to justify that extension, rather than suggest it was just following other cases.

More broadly, this case is an interesting example of a court that likely wants to reach a result but has to first work its way out of a doctrinal box. The U.S. Supreme Court’s cases on dog sniffs force you into a particular box. To reach a result that it’s a search, you have to break out of the box somehow. I’m not surprised the New York court broke out of the box on the facts of this case, as a lot of people don’t like that box. It’s a classic “what if” game played by Criminal Procedure professors in law schools around the country: When you take the binary search doctrine rationale out for a walk, it goes some places that a lot of people find uncomfortable. And here, the discomfort is obvious. The scary-looking dog put his nose right up to the suspect’s groin. Yikes. A lot of people will look at that and say, that’s goes too far. So it’s not surprising that the court made a break-out to say that this was a search. But the break-out requires bending your way around some cases.

On to a more practical issue: How near to a person can a dog go without a search happening? We know roughly how big the curtilage area is for a house. There are cases on that. But what is the protected area around a person? What if the dog was a foot away, or two feet away, or three feet away? How about a narcotics detection dog brought to Penn Station that is sniffing around. Is that now always a search? Or a search in some undefined set of cases? You can bet a lot of people in New York law enforcement are wondering about that.

One last important point. After you say the dog sniff is a search, what kind of cause is needed to justify the sniff? The New York court punts on that crucial question, remanding back to the trial court. The intermediate appellate court had held that a dog sniff was okay with reasonable suspicion, not probable cause or a warrant, but the high court rules that it was premature to consider that because of some state procedural rules. So the answer could be anything.

As a matter of traditional Fourth Amendment caselaw, you would think the answer is that a search of a person requires a warrant. Reasonable suspicion allows a search for weapons, but not for drugs, under Terry v. Ohio. And there is no automobile exception for people to avoid the warrant requirement. But then maybe that’s a box that the New York courts won’t want to be in, either. Maybe courts, having come up with a way out of the binary search box to say use of the dog is a sniff, will next come up with a way out of the warrant box to say it is a lesser search allowed based on lesser cause. Stay tuned.