New York Court of Appeals says dog drug-sniff implicates the Fourth Amendment's protection against unreasonable searches and seizures

This ruling from the New York Court of Appeals breathes life into the Fourth Amendment's protection against unreasonable searches and seizures. The Court holds that the use of a narcotics-detection dog to sniff a defendant's body for evidence of a crime qualifies as a search, thus implicating the Fourth Amendment.

The case is People v. Butler, issued on December 19. It all began in 2017, when the police saw what looked like a drug deal in a parking lot known for such activity. The officers followed the defendant's vehicle down the street and stopped him after observing erratic driving maneuvers. The officers noticed a bulge in defendant's pants but defendant declined the officers' request to search him. Out comes the canine, named Apache, who sniff-tested the car for the presence of narcotics. The dog pulled on its leash toward defendant, suggesting it had caught the sense of narcotics in his groin/buttock region. Defendant then tried to run away. When the officers caught defendant on the run, they found drugs on his person. 

Is this search legal? Hard to believe the New York Court of Appeals has not resolved this issue before. The Supreme Court has not dealt with this issue either. The Court of Appeals resolves it now. After reviewing key Supreme Court cases on the issue, the Court reaches this conclusion:

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.

Next comes the ringing endorsement of the value of bodily integrity and the U.S. Constitution. 

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.  Indeed, although this Court has at times described governmental intrusion into the home as “the chief evil” against which the Fourth Amendment is directed, the text of the Constitution notably lists “[t]he right of the people to be secure in their persons” first among the several areas entitled to protection, and the Supreme Court has recognized the heightened nature of that interest.

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.”

What it means in this case is that the presence or absence of direct physical contact with the body does not determine whether "the governmental conduct implicates the right to bodily integrity under the Fourth Amendment. The question instead turns on whether the conduct compromises personal dignity and violates reasonable social expectations concerning the security of one's body" and related privacy issues.The dog sniff involves a significant intrusion on personal privacy, security and dignity, the Court of Appeals says. 

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. 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, 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.

Much of this reasoning derives from a Fifth Circuit case from 1982. The New York Court of Appeals makes this language its own. The Court of Appeals also cites a law review article detailing how the police have used canines to intimidate and control people of color and marginalized communities. 

Now that we know the dog sniff implicates the Fourth Amendment and requires a more careful search-and-seizure analysis, the case returns to the County Court to reconsider whether this search violated the Fourth Amendment.