The People v. Devon T. Butler

State of New York                                                      OPINION
Court of Appeals                                        This opinion is uncorrected and subject to revision
                                                          before publication in the New York Reports.




 No. 95
 The People &c.,
         Respondent,
      v.
 Devon T. Butler,
         Appellant.




 Clea Weiss, for appellant.
 Benjamin E. Holwitt, for respondent.
 New York State Association of Criminal Defense Lawyers, amicus curiae.




 CANNATARO, J.:

       Over 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

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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

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that the dog was “in odor” 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



1
    Apache remained leashed throughout the encounter.
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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 (

 [3d Dept 2021]). The Court determined

that the contact sniff intruded upon defendant’s 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). 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).

       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 (

 [1998]) to

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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 (

[Aarons, J., concurring]). The concurrence would instead have affirmed based on County

Court’s abandonment analysis (id. at 33).

       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 [Pritzker, J., dissenting]). The

dissenting Justice granted leave to appeal to this Court.

                                              II.

       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” (US 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 US___ , ___, 

 [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.).

       The 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

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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

enforcement begins with United States v Place (

 [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,

quoting United States v. Chadwick, 

 [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




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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

                                     Illinois v Caballes

       Next in our review of federal canine-sniff jurisprudence is Illinois v Caballes (

 [2005]). In that case, the Court held that the use of a “well-trained narcotics-

detection dog” to sniff the exterior of a vehicle during a lawful traffic stop “generally does

not implicate legitimate privacy interests” or qualify as a search (id. at 409). The Court

reasoned that government action constitutes a search only if it compromises a “legitimate”

interest in privacy, and that “governmental conduct that only reveals the possession of

contraband” does not qualify “because the expectation that certain facts will not come to

the attention of the authorities is not the same as an interest in privacy that society is

prepared to consider reasonable” (id. at 408-409 [internal quotation marks omitted]). The

Court noted that in Place, it had “treated a canine sniff by a well-trained narcotics-detection

dog as ‘sui generis’ because it ‘discloses only the presence or absence of narcotics, a

contraband item’ ” (id. at 409, quoting 

). Given that the canine sniff in

Caballes “was performed on the exterior of respondent’s car while he was lawfully seized

for a traffic violation,” the Court concluded that “[a]ny intrusion on [the defendant’s]

privacy expectations d[id] not rise to the level of a constitutionally cognizable

infringement” (id.).



2
 Notably, the canine sniff in Place occurred after officers had lawfully seized the
defendant’s suitcase from an airport based on reasonable suspicion of drug-trafficking
activity (

).
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                                    Florida v Jardines

       The most recent Supreme Court decision in this arena is Florida v Jardines (

 [2013]). There, the Court held that having a canine sniff a homeowner’s porch to discern

whether narcotics are present inside the residence is a search within the meaning of the

Fourth Amendment. The Court explained that “the area immediately surrounding and

associated with the home—what our cases call the curtilage—is part of the home itself for

Fourth Amendment purposes” (id. at 6 [internal quotation marks omitted]). Further, in

conducting the search, the government had exceeded the scope of any invitation or license

implicitly granted by the homeowner to the public regarding the use of a porch. In this

regard, the Court recognized that there is a well-understood license, “implied from the

habits of the country,” that permits visitors “to approach the home by the front path, knock

promptly, wait briefly to be received, and then (absent invitation to linger longer) leave”

(id. at 8 [internal quotation marks omitted]). The Court reasoned that such license permits

“a police officer not armed with a warrant [to] approach a home and knock, precisely

because that is ‘no more than any private citizen may do’ ” (id., quoting Kentucky v King,

 [2011]).

              “But introducing a trained police dog to explore the area
              around the home in hopes of discovering incriminating
              evidence is something else. There is no customary invitation
              to do that. An invitation to engage in canine forensic
              investigation assuredly does not inhere in the very act of
              hanging a knocker. To find a visitor knocking on the door is
              routine (even if sometimes unwelcome); to spot that same
              visitor exploring the front path with a metal detector, or
              marching his bloodhound into the garden before saying hello
              and asking permission, would inspire most of us to—well, call
              the police. The scope of a license—express or implied—is

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              limited not only to a particular area but also to a specific
              purpose” (id. at 9).

       The Court acknowledged holding in Place and Caballes that canine sniffs of closed

suitcases and lawfully-stopped automobiles generally do not violate legitimate privacy

interests, but distinguished those decisions on the ground that the officers in Jardines had

learned what they learned only by “physically intruding” upon an area “protect[ed] as part

of the home itself” (id. at 6, 11). The Court explained that since its conclusions were based

on “the traditional property-based understanding of the Fourth Amendment,” it “need not

decide whether the officers’ investigation of [the defendant’s] home violated his

expectation of privacy” (id. at 11).

       Justice Kagan wrote separately to note that she “could just as happily have decided

[the appeal] by looking to [the defendant’s] privacy interests” (id. at 13 [Kagan, J.,

concurring]). As she would have articulated the rule: “privacy expectations are most

heightened in the home and the surrounding area,” and “police officers invade those shared

expectations when they use trained canine assistants to reveal within the confines of a home

what they could not otherwise have found there” (id. at 13 [internal quotation marks

omitted]).

                                             B.

       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


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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, 

 [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

(see e.g. Missouri v McNeely, 

 [2013]; Skinner v Ry. Labor Executies’

Assn., 

 [1989]; Terry v Ohio, 

 [1968]; Schmerber v California,

 [1966]). 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 (see People v Levan, 

 [1984] [internal quotation

marks omitted]), 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 (US Const, 4th amend;

see Terry, 

 [“ ‘No right is held more sacred, or is more carefully guarded, . . .

than the right of every individual to the possession and control of his own person, free from

all restraint or interference of others’ ” (emphasis added, quoting Union P. R. Co. v

Botsford, 

 [1891])]; see also Horton v Goose Cr. Ind. Sch. Dist., 690 F2d




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470, 478 [5th Cir 1982] [“the (F)ourth (A)mendment applies with its fullest vigor against

any intrusion on the human body”]).

       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, 

 [1985]; see Schmerber, 

); “gentle” or “light” contact

with the body (see Maryland v King, 

 [2013]); “brief” contact with “outer

clothing” (Terry v Ohio, 

 [1968]); mandated collection by the individual

searched of matter emitted from their body for testing by the government (Skinner, 

); 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

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social expectations concerning the security of one’s body and the privacy of matters related

thereto (see US Const, 4th Amend; Skinner, 

 [the Fourth Amendment

“guarantees the privacy, dignity, and security of persons”]; King, 

 [“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, 

), 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 (see Horton, 690 F2d at 478 [collecting academic commentary that “the

intensive smelling of people, even if done by dogs, is indecent and demeaning” (brackets

and internal quotation marks omitted)]; compare Terry, 

 [even a

“limited search of the outer clothing,” in which an officer “do(es) not place his hand in (an

individual’s) pockets or under the outer surface of their garments,” “constitutes a severe,



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though brief, intrusion upon cherished personal security, and it must surely be an annoying,

frightening, and perhaps humiliating experience” (emphasis added)]).

       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, 

).

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 

[Kagan, J., concurring] [“The law of property naturally enough influences our shared

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societal expectations of what places should be free from governmental incursions” (internal

quotation marks and brackets omitted)]; French v Merrill, 

 [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 

 [1st Cir 2022], cert denied

 [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, 

). Authorization to engage in canine forensic investigation assuredly does not inhere in

the very act of venturing out in public (see Carpenter, 

 [“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

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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, 

, quoting United

States v Di Re, 

 [1948]).

       For all of these reasons, we conclude that the canine sniff of defendant’s person

qualified as a search under the Fourth Amendment.

                                             III.

       The second question presented by this appeal is whether the Appellate Division

could decide that a canine sniff search of a person requires reasonable suspicion and was

justified in this case. We conclude that the Appellate Division lacked jurisdiction to resolve

those issues because County Court did not decide them adversely to defendant (see

LaFontaine, 

).

       Section 470.15 (1) of the Criminal Procedure Law functions as “a legislative

restriction on the Appellate Division’s power to review issues either decided in an

appellant’s favor, or not ruled upon, by the trial court” (People v Harris, 

,

1011 [2020] [internal quotation marks omitted]). Here, the statute barred the Appellate

Division from affirming defendant’s judgment based on a ground not decided adversely to

him by the suppression court (see id.). County Court held that the canine sniff of

defendant’s person did not qualify as a search. The court did not decide the standard that

would govern if the canine sniff did so qualify, much less whether that standard was met.

Those questions present “separate” and “analytically distinct” issues from the threshold

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question of whether the sniff implicated constitutional protections or prohibitions (compare

People v Garrett, 

, 885 n 2 [2014]). The Appellate Division therefore erred

in deciding those questions adversely to defendant.

       Finally, it is unclear whether County Court’s conclusion that defendant

“abandoned” the narcotics during his flight from police was premised on its holding that

the canine sniff of defendant was not a search and was “perfectly acceptable.” Because

abandonment analysis turns largely on whether the law enforcement conduct preceding the

purported abandonment was lawful or unlawful (see People v Ramirez-Portoreal, 

 [1996]; People v Boodle, 

 [1979]), consideration of this issue

potentially raises another LaFontaine issue and must also be referred back to County Court.

       Accordingly, the order of the Appellate Division should be reversed, and the case

remitted to County Court for further proceedings in accordance with this opinion.



Order reversed, and case remitted to County Court, Broome County, for further
proceedings in accordance with the opinion herein. Opinion by Judge Cannataro. Chief
Judge Wilson and Judges Rivera, Garcia, Singas, Troutman and Halligan concur.

Decided December 19, 2023




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