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

But how close is close enough? No one knows.

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 an 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 if 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/buttock region, and sat, alerting 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:

Applying the Supreme Court's Fourth Amendment jurisprudence to the instant case, we hold that the use of a canine to sniff defendant's body for the presence of narcotics qualified as a search. This is true even if we accept County Court's apparent conclusion that when Apache put its nose in defendant's "groin/buttock region," the dog did not make actual contact with defendant and sniffed only the air closely surrounding his person. The lack of direct physical contact is not dispositive in this context because of the "heightened" interest society recognizes in the privacy and security of the human body, which can encompass space immediately surrounding the body and was clearly implicated by what occurred here (cf. Jardines, 569 US at 7 [majority op] and 13 [Kagan, J., concurring]).

It cannot be disputed that society treats many matters related to the body as private, or that individuals have a significant interest in the security and integrity of their persons . . .  The Fourth Amendment protects those important interests from unreasonable intrusion by the government. . . .

Thus, the Supreme Court has long held that the Fourth Amendment is implicated when the government attempts to gather evidence of criminal activity from an individual's person. It has recognized that a search occurs whether the particular method employed by the government entails a "compelled surgical intrusion into an individual's body" (Winston v Lee, 470 US 753, 759 [1985]; see Schmerber, 384 US at 767); "gentle" or "light" contact with the body (see Maryland v King, 569 US 435, 446 [2013]); "brief" contact with "outer clothing" (Terry v Ohio, 392 US 1, 24-25 [1968]); mandated collection by the individual searched of matter emitted from their body for testing by the government (Skinner, 489 US at 617); or the "visual and aural monitoring" of private bodily functions (id.). In addition, multiple federal circuit courts have held that the use of magnetometers to detect concealed metal is a search, notwithstanding that the use of such technology does not involve physical contact and is "far less intrusive than the use of large dogs to sniff [people's] bodies" (Horton, 690 F2d at 478 [collecting authorities]; see United States v Albarado, 495 F2d 799, 803 [2d Cir 1974] ["Even the unintrusive magnetometer walk-through is a search in that it searches for and discloses metal items within areas most intimate to the person where there is a normal expectation of privacy"]).

This precedent confirms that the presence or absence of direct physical contact with the body is not determinative of whether or not government conduct implicates "[t]he right of the people to be secure in their persons" and qualifies as a search; the question turns instead on whether the conduct compromises personal dignity and violates reasonable social expectations concerning the security of one's body and the privacy of matters related thereto (see US Const, 4th Amend; Skinner, 489 US at 613-614 [the Fourth Amendment "guarantees the privacy, dignity, and security of persons"]; King, 569 US at 446 ["The fact that an intrusion is negligible [or severe] is of central relevance to determining reasonableness, [but] it is still a search as the law defines that term" (emphasis added)]).

Compared to a sniff of an inanimate object like a closed suitcase or automobile, the sniffing of the human body involves an obviously greater intrusion on personal privacy, security, and dignity. Most people "deliberately attempt not to expose the odors emanating from their bodies to public smell" and experience anxiety and embarrassment at the thought of emitting odors, demonstrating the sensitivity of the matter (see Horton, 690 F2d at 478). Moreover, it is of little consolation in this context that the only information a canine may be capable of conveying to police is the presence of illegal drugs. The "embarrassment and inconvenience" of this type of search does not arise solely from fear that the canine will reveal the presence of contraband (compare Place, 462 US at 707), but from the objectively undignified and disconcerting experience of having an unfamiliar animal place its snout and jaws in close proximity to—if not direct contact with—vulnerable parts of our bodies. . . .

In this regard, it also cannot be ignored that some people are afraid of dogs, particularly police canines, which are usually quite large and can be cross-trained to apprehend fleeing suspects (see Ann L. Shiavone, K-9 Catch-22: The Impossible Dilemma of Using Police Dogs on Apprehension, 80 U Pitt L Rev 613, 622, 652 & nn 287-288 [Spring 2019]; Police Executive Research Forum, Guidance on Policy and Practices for Patrol Canines, 14 [2020], available at https://www.policeforum.org/assets/Canines.pdf). Although deaths caused by canines are rare, fear and distrust of their use by law enforcement is not without justification, particularly considering the shameful history in this country of police using canines to intimidate and control people of color and marginalized communities (see e.g., Shontel Stewart, Man's Best Friend? How Dogs Have Been Used to Oppress African Americans, 25 Mich J Race & L 183 [May 2020]).

In permitting Apache to approach and sniff defendant for evidence of criminal activity, the officers also exceeded the scope of any invitation or license implicitly granted by defendant with respect to his so-called personal space (cf. Jardines, 569 US at 8-9). Preliminarily, although the Supreme Court in Jardines borrowed from implied-license principles as part of its property-law analysis upon concluding that a porch is part of the home for Fourth Amendment purposes, consideration of the implied social licenses that govern human interaction is also helpful to assess whether a canine sniff of a person violates an expectation of privacy considered reasonable by society (see id. at 13-14 [Kagan, J., concurring] ["The law of property naturally enough influences our shared societal expectations of what places should be free from governmental incursions" (internal quotation marks and brackets omitted)]; French v Merrill, 15 F4th 116, 131 [1st Cir 2021] [Jardines "clearly established that an implicit social license sets the boundaries of what acts officers may engage in"], rehg en banc denied 24 F4th 93 [1st Cir 2022], cert denied 143 S Ct 301 [2022]). For our part, we will assume that when a person decides to venture out into the public square, they implicitly permit others—including not just friends and coworkers but certain strangers and even police—to approach and interact in ways that may put them in a position to notice odors emanating from the body (say, in a crowded queue or rush-hour subway car). However, it is not part of the social convention for strangers to enter each other's personal space for the specific purpose of sniffing each other; such conduct is likely to be considered alarming and intrusive. Even with pets, it is generally considered rude to allow one's dog to approach and intensively sniff a stranger without consent. And introducing a trained police dog to explore otherwise undetectable odors in the hopes of discovering incriminating evidence is "something else" entirely; it goes far beyond any implied social license or reasonable expectation (Jardines, 569 US at 9). Authorization to engage in canine forensic investigation assuredly does not inhere in the very act of venturing out in public (see Carpenter, 138 S Ct at 2217 ["A person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, what one seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected" (internal quotation marks and brackets omitted)]).

Finally, a refusal by this Court to recognize what occurred here as a search would sanction law enforcement to roam the streets of this State's cities and neighborhoods with police dogs arbitrarily sniffing people for evidence of crimes, a picture straight out of dystopian fiction. Recognizing this form of investigative technique as a search is therefore consistent with "a central aim of the Framers[, which] was 'to place obstacles in the way of a too permeating police surveillance'" (Carpenter, 138 S Ct at 2214, quoting United States v Di Re, 332 US 581, 595 [1948]).

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 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.