Criminal Justice Insider

On December 19, 2023, the Court of Appeals issued its decision in People v. Butler. In this closely watched case, the Court determined that a canine sniffing a person suspected of drug possession is a search pursuant to the Fourth Amendment, and thus requires a warrant. The case was one of first impression in New York and substantially limited the ability of law enforcement to use drug sniffing dogs. More saliently, the decision signaled the Court’s philosophy on the intersection of privacy and law enforcement.

In Butler, police witnessed the defendant engaging in a drug transaction in an area known for drug distribution. The police followed the defendant’s car as he left the area and witnessed him engage in several traffic violations. Upon stopping and interviewing him, the police asked the defendant to get out of his car and observed that he had a large bulge in pants pocket.

The police then brought a drug-sniffing dog to smell his car. During that process, the dog kept redirecting towards the defendant himself. The police officer allowed the dog to sniff the air around the defendant. When the dog indicated that it smelled narcotics, the defendant fled the scene, tossing away the contents of his pockets as he ran. The police ultimately arrested the defendant and recovered 76 glassines of heroin from the ground nearby. The defendant subsequently admitted the drugs were his.

At trial, the defendant moved to suppress the search as a violation of his Fourth Amendment rights. The trial court ruled that the defendant did not have a reasonable expectation of privacy in the air around his person, and thus no warrant was needed. This holding was affirmed by a divided appellate court.

In its decision, the Court of Appeals noted that the matter was one of first impression, and that the Supreme Court had not yet decided the issue of whether a canine search of the area around a person required a warrant. In reaching its decision, it did an analysis of the three leading Supreme Court cases on searches by police dogs. In the first two, United States v. Place and Illinois v. Caballes, the Supreme Court held that warrantless searches by drug-sniffing dogs of the exterior of a suitcase on airplane and the exterior of an automobile, respectively, did not violate the Fourth Amendment. The defendant in each case had no legitimate privacy interest in these areas. However, that Court noted that in Florida v. Jardines, the Supreme Court held that it was improper for the police to lead drug-sniffing dogs around the exterior of a defendant’s home as there is no customary invitation for strangers or police to enter those areas. The Court found that although the exterior of a home is public facing, there is no ordinary license for the public to simply circle in close proximity to a private home.

In contrasting these cases, the Court of Appeals recognized that there exist external areas, such as the area directly surrounding one’s person, where privacy and freedom from intrusion would be expected. The Court wrote, “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.” Such a search directly implicates the very text of the Fourth Amendment which enshrines the right to be “secure in their persons.” Accordingly, the Court of Appeals held that a police dog intruding into close proximity with the defendant in order to conduct a sniff search requires a warrant.

Notably, the Court of Appeals also acknowledged the public policy implications of allowing unrestricted warrantless searches by drug-sniffing dogs: “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.”

This holding creates a new and novel limitation on the police’s ability to use drug-sniffing dogs. Moreover, it acts a signal as to how the Court of Appeals may weigh the right to personal privacy against the needs of law enforcement in future cases. In Butler, the Court clearly articulated that it holds sacred the right of people to be secure in their persons and it will not condone even the most minor intrusion.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533