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NY Court of Appeals Holds Sniff of Body Odor A Search

Dog sniffs. Dog hits. Dogs have wonderful sense of smell and will alert either when they smell something, when their handler wants them to alert or just whenever because they’re dogs. Yet, dog hits remain one of the unmovable bits of probable cause despite their having no more validity than a coin toss because the Supreme Court justices, like all judges, love cute puppies.

Yet the New York Court of Appeals has decided there is a place even cute puppies can’t sniff without a warrant.

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/buttock region, and sat, alerting 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.

While Apache never actually touche Butler, it did enter his “personal space” about his groin and buttocks. And sniff.

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.

But why is a dog smelling the air around a person different than smelling a car, for example?

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, 462 US at 707), 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.

Whether other dogs may not mind the occasional dog sniff of their anus, the Court of Appeals  now recognizes the indignity of a dog doing so to a person who might prefer not to expose  odors emanating from their body to public “smell.”

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.

Much as this is a good holding for the Fourth Amendment, or Article I, Section 12 of the New York Constitution, it’s a very curious break from past search and seizure jurisprudence given that people in public are susceptible to all manner of indignities, such as upskirt photos to  baseless police inquiries. Yet, the court drew a line at the odors emanating from people’s crotch and buttocks.

Orin Kerr characterizes the court’s holding as creating something analogous to body curtilage.

The New York court also seems to suggest that there is a curtilage around a person.  That’s new!  The curtilage concept originated in common law crimes about burglary, where the area immediately around the home was used as a the home.  As far as I know, it has only been applied to homes. Extending it to the area around people is pretty novel.  It would have been helpful for the court to more directly acknowledge that this is what it was doing, and to justify that extension, rather than suggest it was just following other cases.

As Orin notes, the unstated analogy really suggests that the court has simply decided that dogs  smelling crotches is a sniff too far. It violated the “yikes” rule.

More broadly, this case is an interesting example of a court that likely wants to reach a result but has to first work its way out of a doctrinal box. The U.S. Supreme Court’s cases on dog sniffs force you into a particular box.  To reach a result that it’s a search, you have to break out of the box somehow.  I’m not surprised the New York court broke out of the box on the facts of this case, as a lot of people don’t like that box.  It’s a classic “what if” game played by Criminal Procedure professors in law schools around the country: When you take the binary search doctrine rationale out for a walk, it goes some places that a lot of people find uncomfortable.  And here, the discomfort is obvious.  The scary-looking dog put his nose right up to the suspect’s groin.  Yikes.

The New York Court of Appeals has a long and storied history of breaking from United States Supreme Court rules on search and seizure more protective under the state Constitution than the federal, but it hasn’t done so in decades and usually, when it has, provided a doctrinal rationale for rejecting the more restrictive federal interpretation. Here, it just seems that the court is either creeped out by dogs sniffing butts or particularly protective of the embarrassment of body odor.

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