People v. Butler

208 N.Y.S.3d 114

231 N.E.3d 1021

41 N.Y.3d 186

The PEOPLE of the State of New York, Respondent,

v.Devon T. BUTLER, Appellant.

Court of Appeals of New York.

Decided December 19, 2023

Clea Weiss, Rochester, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Benjamin E. Holwitt and Geoffrey B. Rossi of counsel), for respondent.

The Law Office of Stephen N. Preziosi P.C., New York City (Stephen N. Preziosi of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae.

OPINION OF THE COURT

CANNATARO, J.

[1] ₁₈₉Over the past forty years, the United States Supreme Court has taken an Incremental approach to determining whether the police technique of using a canine's heightened sense of smell to detect the presence of illegal drugs offends the prohibition on unreasonable searches set forth in the Fourth Amendment to the United States Constitution. Today we take the logical next step in that progression: we hold that the use of a narcotics-detection dog to sniff defendant’s body for evidence of a crime qualified as a search and thus implicated the protections of the Fourth Amendment.

The suppression court terminated its review of the canine sniff of defendant’s person upon concluding that it did not qualify as a search. Although the Appellate Division correctly resolved that question on appeal, it erred in holding that a canine body sniff requires reasonable suspicion and was justified here, issues that were not decided adversely to defendant by the suppression court. We accordingly reverse and remit this case to County Court for consideration of the remaining questions in the first instance.

I.

In 2017, two police officers observed what they believed to be a hand-to-hand drug transaction in a parking lot known for such activity. The officers followed defendant’s vehicle from the scene. After observing defendant engage in evasive driving maneuvers and failing to stop at a stop sign, the officers initiated a traffic stop. Upon questioning, defendant admitted that he did not have a valid driver’s license, and his explanation of his destination and origin did not align with what the officers had observed. When defendant stepped out of his vehicle, the officers noticed a bulge in his pants that he explained was $1,000 cash.

After defendant declined the officers’ request for consent to search his vehicle, one of the officers retrieved a Belgian Malinois named Apache to sniff-test the vehicle for the presence of narcotics. As the canine was led toward the vehicle it began to pull on its leash toward defendant, who was then standing six to eight feet away, indicating to the officer that the dog was "in ₁₉₀odor" and had caught the scent of narcotics. After being redirected to the vehicle, the canine jumped into the driver’s seat and again indicated that it was in odor. The officer then decided to "see if there’s any odor on [defendant]." He "extended the leash a little bit" so the canine could walk around defendant, at which point the dog indicated for the third time that it was in odor, put its nose in defendant’s "groin/buttock region," and sat, alerting the officer that it had located narcotics. When the officer stated that "[t]he dog has got something," defendant ran.

The officers and Apache pursued and ultimately apprehended defendant.¹ Because they had seen defendant reach into his pants as he fled, the officers conducted a search of the surrounding area and recovered a plastic bag containing 76 glassine envelopes of heroin, which defendant admitted belonged to him. Defendant was charged with criminal possession of a controlled substance in the third degree, tampering with physical evidence, and obstructing governmental administration in the second degree.

Defendant moved to suppress evidence of the drugs, arguing that the officers’ use of a canine to search his vehicle and person was unlawful. Following a hearing, County Court denied the motion, reasoning that the officers had a "founded suspicion" of criminal activity to justify the sniff-search of defendant’s vehicle, but that the sniff of defendant’s person was not a search because there is no "reasonable expectation of privacy in the air surrounding a person" and it was "perfectly acceptable for Apache to approach defendant in an effort to ‘sniff the air surrounding defendant." The court also determined that defendant had voluntarily abandoned the narcotics during his flight from police. Following these rulings, defendant pleaded guilty to both the possession and tampering charges and appealed from the resulting judgment.

The Appellate Division affirmed on different grounds in a divided opinion. The majority agreed with County Court that the canine search of defendant’s vehicle was lawful, but stated that the suppression court had "inaccurately characterized" what occurred thereafter as "a canine simply sniffing the air around defendant" rather than as a "contact sniff’ of defendant’s person (196 A.D.3d 28, 31, 148 N.Y.S.3d 286 [3d Dept. 2021]). The Court determined that the contact sniff intruded upon defendant’s ₁₉₁ personal privacy and therefore qualified as a search under both Federal and State constitutional law. The Court further held that this type of search requires reasonable suspicion of criminal activity because "[a] canine sniff is a minimal intrusion compared to a full-blown search of a person" (id.). Insofar as the canine had twice signaled that it had detected the scent of narcotics "[w]ithout prompting" by the officers, the Court concluded that there was a reasonable and articulable basis to suspect that defendant possessed narcotics on his person, and that the resulting contact sniff was not unreasonable under the circumstances (id. at 31-32, 148 N.Y.S.3d 286). The Court stated that defendant’s remaining contentions were unavailing because "[h]aving discarded the heroin while properly being pursued by the officers, defendant abandoned any right to challenge the seizure of this evidence" (id. at 32, 148 N.Y.S.3d 286).

One Justice concurred with the result, agreeing with the majority that the canine sniff of defendant’s person qualified as a search but opining that the Court lacked jurisdiction under CPL 470.15(1) and (People v. LaFontaine, 92 N.Y.2d 470, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998]) to decide whether the search was justified or the legal standard governing that question, issues that had not been decided adversely to defendant by County Court (196 A.D.3d at 32-33, 148 N.Y.S.3d 286 [Aarons, J., concurring]). The concurrence would instead have affirmed based on County Court’s abandonment analysis (id. at 33, 148 N.Y.S.3d 286).

Another Justice dissented, agreeing with the majority and concurrence that the canine sniff of defendant’s person was a search but opining that such a search requires probable cause and that no such cause existed here (id. at 33, 148 N.Y.S.3d 286 [Pritzker, J., dissenting]). The dissenting Justice granted leave to appeal to this Court.

II.

[2, 3] The Fourth Amendment provides, in relevant part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (U.S. Const. 4th amend). The purpose of this prohibition is to safeguard the privacy and security rights of individuals against arbitrary invasions by the government (Carpenter v. United States, 585 U.S. 296, 326, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 [2018]). Thus, when an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, official intrusion into that private sphere generally qualifies as a search (id.).

₁₉₂The Supreme Court has yet to decide whether the use of a canine to detect the scent of illegal drugs concealed on a person’s body qualifies as a search within the meaning of the Fourth Amendment, and the question appears to be one of first impression in New York. That said, the Supreme Court has considered and resolved a number of challenges to the use of drug-sniffing dogs by law enforcement in other contexts and reached different conclusions depending on the interests and circumstances involved. We accordingly turn first to that precedent for guidance in answering the question.

A. United States v. Place

The Supreme Court’s jurisprudence on the use of drug-sniffing dogs by law en- forcement begins with (United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 [1983]). In that case, the Court held that having a canine sniff the outside of an airplane passenger’s suitcase for the presence of illegal drugs inside did not constitute a search under the Fourth Amendment. The Court opened its analysis by acknowledging that "a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment" (id. at 707, 103 S.Ct. 2637, quoting United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 53 L.Ed.2d 538 [1977]). The Court opined, however, that a canine sniff of a suitcase "is much less intrusive than a typical search" insofar as it "does not require opening the luggage" and "discloses only the presence or absence of narcotics, a contraband item" (id.). In the Court's view, the limited nature of that disclosure "ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods" (id.). For these reasons, the Court described a canine sniff as "sui generis" and concluded that "the particular course of investigation that the agents intended to pursue—exposure of respondent's luggage, which was located in a public place, to a trained canine—did not constitute a ‘search’ within the meaning of the Fourth Amendment" (id.).²

₁₉₃Illinois v. Caballes

Next in our review of federal caninesniff jurisprudence is (Illiums v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 [2005]). In that case, the...