People v. Butler

196 A.D.3d 28

148 N.Y.S.3d 286

The PEOPLE of the State of New York, Respondent,

v.Devon T. BUTLER, Appellant.

110948

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: March 16, 2021

Decided and Entered: May 20, 2021

Clea Weiss, Ithaca, for appellant.

Michael A. Korchak, District Attorney, Binghamton (Rita M. Basile of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Aarons, Pritzker and Colangelo, JJ.

OPINION AND ORDER

Lynch, J. Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered September 5, 2018, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and tampering with physical evidence.

In March 2017, two police officers assigned to the Broome County Special Investigations Unit conducted a traffic stop of defendant's vehicle in the City of Binghamton, Broome County, followed by a canine search of the vehicle. When the canine alerted for drugs on defendant's person, he fled and was soon apprehended nearby. During the pursuit, the officers observed defendant reach into the back of his pants, leading officers to believe "that he might have thrown something." Following defendant's arrest, police discovered a discarded package found to contain 76 packets of heroin. Defendant admitted that the drugs belonged to him and that he lost an item of jewelry during the chase, which was also recovered by the police. An indictment followed, charging defendant with criminal possession of a controlled substance in the third degree, tampering with physical evidence and obstructing governmental administration in the second degree. After County Court denied defendant's motion to suppress the evidence of the drugs seized and statements made as the product of an illegal search, defendant pleaded guilty to both the possession and tampering charges. In accord with the plea agreement, defendant was sentenced to a prison term of four years, with two years of postrelease supervision, on the possession conviction, and to a lesser concurrent term on the tampering conviction. Defendant appeals.

Defendant challenges County Court's suppression ruling, a claim that survives his guilty plea in the absence of a valid appeal waiver (see People v. Cogdell, 126 A.D.3d 1136, 1138, 5 N.Y.S.3d 570 [2015], lv denied 25 N.Y.3d 1200, 16 N.Y.S.3d 522, 37 N.E.3d 1165 [2015] ). To begin, defendant acknowledges that the police officers had probable cause to effect the traffic stop (see People v. Blandford, 190 A.D.3d 1033, 1035, 138 N.Y.S.3d 710 [2021], lv granted 36 N.Y.3d 1102, 144 N.Y.S.3d 154, 167 N.E.3d 1289 [Mar. 5, 2021] ). Defendant asserts, however, that the ensuing canine sniff search of his vehicle and person was impermissible, contending that the police lacked a "founded suspicion" to search the vehicle and probable cause to search his person. In People v. Devone, 15 N.Y.3d 106, 905 N.Y.S.2d 101, 931 N.E.2d 70 (2010), the Court of Appeals determined that a canine sniff of the exterior of a vehicle constitutes a search under N.Y. Constitution, article 1, § 12 and that a " ‘founded suspicion’ that criminality was afoot provided sufficient grounds for the search" ( id. at 113, 905 N.Y.S.2d 101, 931 N.E.2d 70 ; compare Illinois v. Caballes, 543 U.S. 405, 409, 125 S.Ct. 834, 160 L.Ed.2d 842 [2005] [canine sniff of vehicle exterior after a traffic stop not a search under the Fourth Amendment]).

Both of the involved officers, Todd Haven and Christopher Bracco, testified at the suppression hearing. Haven explained that, while the two officers were conducting surveillance prior to the traffic stop, he observed defendant's vehicle as it pulled into a parking lot and that a male directly entered the vehicle. Although it was dark out, Haven observed what he "believed to be a hand to hand exchange." Seconds later, the male exited the vehicle and defendant pulled away, followed by Bracco and Haven in separate vehicles. The officers eventually stopped defendant's vehicle after observing him make an evasive U-turn, speed up and drive through a stop sign. When defendant advised that he did not have a driver's license and gave what Bracco considered an inconsistent explanation as to where he was going and coming from, Bracco asked defendant to step out of the vehicle. Defendant complied, leaving the door open. Bracco described defendant as nervous. Upon observing a bulge in defendant's pocket, Bracco inquired as to how much cash he had and defendant responded $1,000. Bracco then asked defendant for his consent to search the vehicle, but defendant declined. At this point, Bracco retrieved the canine from his vehicle to initiate the search. We agree with County Court that these circumstances provided a founded suspicion to justify an exterior canine search of the vehicle (see People v. Devone, 15 N.Y.3d at 113–114, 905 N.Y.S.2d 101, 931 N.E.2d 70 ; People v. Blandford, 190 A.D.3d at 1036–1037, 138 N.Y.S.3d 710 ).

The dynamic changed, however, once Bracco initiated the search. Bracco explained that the canine was "a passive alert narcotics detection dog." Bracco used the phrase "in odor" to indicate when the canine catches the scent of narcotics and noted that the canine "alerts" by sitting once the narcotics are located. As Bracco was returning with the canine, defendant was standing with Haven about six to eight feet from the vehicle. The canine was in front of Bracco and started to pull towards defendant, indicating to Bracco that the canine was "in odor." Bracco redirected the canine and, as they proceeded around the vehicle, the canine jumped into the driver's seat area and began sniffing the seat – indicating to Bracco that the canine was once again "in odor." Bracco then decided to "see if there's any odor on [defendant]." He extended the leash and allowed the canine to walk around Haven and defendant. Once behind defendant, the canine "started to become in odor." The canine then "put his nose in the groin/buttock region of [defendant], and then he sat." Bracco stated that the canine "has got something" and defendant bolted.

These circumstances do not present a situation, as inaccurately characterized by County Court, of a canine simply sniffing the air around defendant. Defendant correctly asserts that the canine's contact sniff of his person intruded upon his personal privacy as secured under both the Fourth Amendment of the U.S. Constitution and article 1, § 12 of the N.Y. Constitution (see Florida v. Jardines, 569 U.S. 1, 5, 133 S.Ct. 1409, 185 L.Ed.2d 495 [2013] ; Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] ). The question presented is whether the search ran afoul of either constitutional provision and what standard applies to make that assessment – an issue of first impression for this Court.

Considering the context of a vehicle traffic stop and how events unfolded, we conclude that a reasonable suspicion standard should apply, not one of probable cause (see Terry v. Ohio, 392 U.S. 1, 8, 88 S.Ct. 1868, 20 L.Ed.2d 889 [1968] ; United States v. Reyes, 349 F.3d 219, 223–224 [5th Cir.2003], cert denied 540 U.S. 1228, 124 S.Ct. 1528, 158 L.Ed.2d 170 [2004] ; People v. Dunn, 77 N.Y.2d 19, 26, 563 N.Y.S.2d 388, 564 N.E.2d 1054 [1990], cert denied 501 U.S. 1219, 111 S.Ct. 2830, 115 L.Ed.2d 1000 [1991] ; Tedford v. State, 307 So. 3d 738, 745–746 [Fla. 4th DCA 2020] ). A canine sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics (see People v. Dunn, 77 N.Y.2d at 26, 563 N.Y.S.2d 388, 564 N.E.2d 1054 ). Without prompting from Bracco, the canine twice was "in odor" of its own accord, providing a reasonable and articulable basis for Bracco to suspect that defendant possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for Bracco to allow the canine to approach defendant.

There was contact between the canine and defendant's person, but the record suggests that contact was brief and the canine quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied.

Defendant's remaining contentions are to no avail. Having discarded the heroin while properly being pursued by the officers, defendant abandoned any right to challenge the seizure of this evidence (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 110, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ; People v. Boodle, 47 N.Y.2d 398, 402–404, 418 N.Y.S.2d 352, 391 N.E.2d 1329 [1979], cert denied 444 U.S. 969, 100 S.Ct. 461, 62 L.Ed.2d 383 [1979] ). The record also establishes that defendant's statements were voluntarily made at the police station after he was duly apprised of his Miranda rights. As such, the judgment is affirmed.

Egan Jr., J.P., and Colangelo, J., concur.

Aarons, J. (concurring).

I agree with the majority that County Court correctly denied defendant's suppression motion. I write separately though because the majority's analysis of whether the canine search of defendant's person contravened constitutional standards and what standard applies to make that assessment goes beyond our jurisdiction and cannot be a basis to affirm the judgment.

In denying defendant's suppression motion, County Court found that founded suspicion existed to conduct a canine search of the vehicle. The majority, as do I, concludes that this finding was proper. Defendant, however, also argues that the canine search of him was an illegal search. The court concluded that defendant had no reasonable expectation of privacy in the air surrounding him and, therefore, "[i]t was ... perfectly acceptable for [the canine] to approach defendant in an effort to ‘sniff’ the air surrounding defendant." I agree with the majority that the court inaccurately characterized the situation as a canine sniffing the air and that the proper questions were whether the canine sniff of defendant's person constituted an...