Orin S. Kerr | 12.19.2023 4:39 PM

The police often rely on trained narcotics-detection dogs to alert for drugs. How far the police can use those dogs under the Fourth Amendment has led to a lot of cases. Today the New York Court of Appeals added an interesting one on an important question: Is a dog sniff of a person in a public area a Fourth Amendment search?

First, some context. The Supreme Court has held that a dog sniff in a public area is not a search. It reached that ruling in cases that happened to involve a sniff of luggage and a sniff around a car. When confronted with a dog sniff on a home front porch, however, the Court ruled that the entry of the dog on to the porch was a search because it went beyond the implied license of the area around the home, the so-called curtilage. The "search" was the entry of the dog within the private area of the curtilage with intent to do a sniff, not the sniff itself.

So what about a dog sniff of a person in a public area? The curtilage concept has only been applied to homes, not people. Does that mean dogs can sniff a person? It's clear that a dog sniff is a search of the dog actually touches the person. But what if the dog just comes close to the person, without touching them? Is that a search?

That was the issue in today's ruling in People v. Butler. After observing what they think is a hand-to-hand drug transaction, officers see the suspect get in his car. They pull him over for a traffic violation. He steps out of his car, and officers notice a big bulge in his pants that he claims is $1,000 in cash. Officers get the narcotics-detection dog, a Belgian Malinois named Apache, to smell around the car. Apache alerts.

They then let the dog sniff around the suspect, Butler. The dog alerted again, "put its nose in the defendant's groin/button region, and sat, altering the officer that it had located narcotics." There was no evidence that Apache had actually touched Butler. But he had put his nose near Butler's groin.

That's a search, the New York Court of Appeals ruled:

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 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, 569 US at 7 [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 . . . The Fourth Amendment protects those important interests from unreasonable intrusion by the government. . . .

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........

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