From the DA’s Desk: Dog-Sniff Searches and the Human Body
By Robert Phillips
Deputy District Attorney (ret.)
An interesting topic for which there is actually very little case law is dog-sniff searches as they relate to sniffing one’s person.
There is plenty of case law out there to the effect that using a police canine to sniff a lawfully stopped vehicle is not a search, given the lack of any privacy expectations in the air surrounding our vehicles. (Illinois v. Caballes (2005) 543 U.S. 405). Courts have also held that it’s lawful to detain a person’s luggage (with a reasonable suspicion) and have a police dog sniff it despite the lack of probable cause or a warrant. That’s because such a luggage sniff is not a “search,” given a similar logic of having no expectation of privacy in the air around one’s luggage. (United States v. Place (1983) 462 U.S. 696.)
In light of these cases, it might come as a surprise to you that the weight of authority, what little there is of it, for a police dog sniffing one’s person — as opposed to a vehicle or luggage — holds to the contrary.
Recent Case on Drug-Sniffing of a Person’s Body
The very recent appellate court case of People v. Butler (Dec. 19, 2023) in New York, illustrates this rule. For a police drug-detection dog to lawfully sniff a person, there must be cause — either probable cause or at least a reasonable suspicion — to believe that the person sniffed has illegal drugs on him or her. In Butler, officers made a lawful traffic stop of Butler’s car after observing what appeared to be defendant engaging in a hand-to-hand street drug transaction. While contacting him about some subsequent driving violations, an officer’s drug-sniffing canine, Apache, alerted on the driver’s seat area of defendant’s car. Apache’s handler then directed the dog toward the defendant himself who, by this time, was out of his car. Apache instantly alerted on the defendant’s “groin/buttock region.”
Butler fled on foot and attempted to discard a plastic bag containing 76 glassine envelopes of heroin, which he later admitted belonged to him.
Is a Warrantless Body Sniff a “Search”?
The issue on the appeal was the legality of the warrantless dog-sniff of Butler’s person, and whether it constituted a search at all. Noting the lack of any Supreme Court authority on this issue, the New York court went out on a limb by holding that a dog-sniff of one’s person is indeed a search.
After citing both Caballes and Place, where no Fourth Amendment search occurred when a drug-sniffing dog alerted on a suspect’s vehicle and luggage, respectively, the Butler court moved onto Florida v Jardines (2013) 569 U.S.1, where the Supreme Court held that bringing a drug-sniffing canine onto the front porch of a suspect’s home, or anywhere else within the curtilage of that home, “exceeded the scope of any invitation or license implicitly granted by the homeowner.” As such, when done without a warrant, the officers’ actions violated the defendant’s Fourth Amendment rights.
Extrapolating this theory to the expectation of privacy one has in his or her own body, the Butler court held “the use of a canine to sniff defendant’s body for the presence of narcotics qualified as a search.” This is because like the curtilage around one’s home, and as opposed to the air around our vehicles and luggage, we all have a reasonable expectation of privacy in our own bodies. As such, “the sniffing of the human body involves an obviously greater intrusion on personal privacy, security, and dignity.”
The court also held that it is irrelevant that the dog did not make actual contact with the defendant and sniffed only the air closely surrounding his person. Such a sniff violates what is sometimes referred to as our “personal space,” making irrelevant the lack of any direct contact with a suspect’s body.
This, however, does not mean that in the Butler case, using Apache to sniff out the defendant’s dope was necessarily illegal. With either a reasonable suspicion or, more likely, probable cause (the applicable level of suspicion not being resolved by the Butler court), such a sniff would be lawful.
The court, therefore, returned the case to the trial court for a resolution of whether the officers had sufficient cause to suspect – and what that level of suspicion should be – that the defendant had drugs on his person when they allowed Apache to sniff his body.
So how does this jibe with other cases? As noted above, there isn’t a lot of case law we can turn to. But interestingly enough, the Ninth Circuit dealt with this issue almost a quarter of a century ago. In B.C. v. Plumas Unified School District (9th Cir. 1999) 192 F.3rd 1260, it was held in a civil suit that students who were subjected to a dog-sniff for drugs were the victims of a warrantless Fourth Amendment violation, although the officers were entitled to qualified immunity from civil liability because the issue was not yet well settled in the law.
Well-settled or not, this issue had been discussed even before B.C. by the federal Fifth Circuit Court of Appeal in its decision of Horton v. Goose Creek Independent School District (5th Cir. 1982) 690 F.2nd 470, also a school-search case. In Horton, it was held that while a dog-sniff of students’ cars and lockers did not constitute a search, a dog-sniff of the students themselves was in fact a Fourth Amendment search, and as such, a violation of their rights.
Reaching an opposite conclusion, however, was the even older federal decision of Doe v. Renfrow (7th Cir. 1981) 631 F.2nd 91, 92, where it was held by the federal Seventh Circuit that dog-sniffs of one’s person is not a search.
But given the more recent authority, as discussed above, it’s safe to say that Butler, B.C., and Horton, particularly in light of the reasoning of Florida v Jardines, are the cases with which officers need to be familiar, and ready to follow.
As for the level of proof required, the Horton case ruled (at page 479) that at least in a school setting, only a “reasonable suspicion” was required. Outside the school setting, however, my guess would be that officers are going to be required to have full “probable cause” to believe that a suspect has drugs on his person before an officer can subject him or her to a dog-sniff search.
In Butler, with the officers observing what appeared in their expertise to be a hand-to-hand drug transaction, followed up by Apache’s alerting on the driver’s seat of his car where the defendant had just been sitting (a dog-alert by itself typically is sufficient probable to warrant a vehicle search. See Florida v. Harris (2013) 568 U.S. 237, 248.), I suspect the court will find that probable cause supported the officer’s decision to have Apache sniff the defendant. We’ll have to wait and see. LegalUpdates.com will alert you when there is a decision.