A nose in the Constitution

It was a memorable day for Nate Taylor and a German shepherd named Raven when the duo made a drug bust on Interstate 85 in North Carolina. Taylor, currently a Drug Enforcement Administration task force officer, recalled the incident about two years ago when he made a vehicle stop and seated the driver in the front seat of his squad car while he wrote a citation.

Raven, who was in the back seat, showed a marked interest in the driver. “Her demeanor would change,” recalls Taylor. A search of the driver’s vehicle soon yielded a stash of drug-related currency.

Taylor found Raven to be an invaluable crime-fighting partner and said the two were together 24/7. But such canine-assisted drug busts may decrease if a late 2023 ruling by the New York Court of Appeals is adopted by other state courts.

In People v. Butler, a court on Dec. 19 concluded for the first time that use of a narcotics-detection dog to sniff a person’s body for evidence of a crime qualifies as a “search”—meaning the Fourth Amendment’s bar on unreasonable searches applies.

In the case from Binghamton, two police officers observed what appeared to be a hand-to-hand drug transaction by a person later identified as Devon Butler. After Butler entered his car and drove away, the officers made a traffic stop. When Butler got out of the car, the police noted a large bulge in his pants that he said was $1,000 cash.

Apache, a leashed narcotics detection dog, circled the vehicle, giving signs (or “alerting”) for the presence of narcotics. Apache later moved toward Butler, alerting in the area of his groin, though not touching him. Butler ran. He was apprehended by the officers, who found 76 envelopes of heroin not far from the vehicle.

In its ruling, the New York court distinguished U.S. Supreme Court cases that ruled dog sniffs of automobiles and luggage in public places were not searches. “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,” wrote Associate Judge Anthony Cannataro. “Introducing a trained police dog to explore otherwise ­undetectable odors in the hopes of discovering incriminating evidence … goes far beyond any implied social license or reasonable expectation.”

Writing about the case in Reason, University of California, Berkeley, law professor Orin Kerr noted some of the unresolved questions. “How near to a person can a dog go without a search happening?” he asked. “After you say the dog sniff is a search, what kind of cause is needed to justify the sniff?”

In Taylor’s view, having to stop and obtain a warrant to allow a drug dog to sniff a person will cause many officers to hesitate. “Officers may let the suspect go based on time or lack of reasonable suspicion that a dog alert may have created, and they may begin to second-guess even having enough probable cause to obtain the search warrant,” said Taylor. “That’s gonna make or break a lot there.”

For now, the ruling only applies to New York. Meanwhile, judges have sent People v. Butler back to the trial court where a judge will determine, among other things, whether the warrantless search was justified.