‘Reasonable searches’ and drug-sniffing dogs

‘Reasonable searches’ and drug-sniffing dogs
Published: Tuesday, June 15, 2010, 7:06 AM Updated: Tuesday, June 15, 2010, 7:07 AM
Daniel Leddy

The phrase “police search” might evoke such images as law-enforcement officials tearing through a person’s home, rummaging through his briefcase at a bus depot, or microscopically probing the individual himself on a public street.

But what about a so-called “canine sniff,” where, for instance, police walk around a motor vehicle with a narcotic-detection dog? Is that too a search?

Since the Fourth Amendment to the U.S. Constitution prohibits “unreasonable searches and seizures,” it’s important to ascertain what, precisely, constitutes a “search.”

For if a search occurs and is deemed to have violated the Constitution, the evidence seized as consequence is generally inadmissible at trial.

Indeed, guilty defendants, some having committed extremely serious crimes, go free every day because courts declare searches unconstitutional.

The United States, incidentally, is the only nation in the world with a mandatory “exclusionary rule” whereby criminals are rewarded grandly because police are deemed to have erred.

In U.S. vs. Place, a unanimous decision rendered by the U.S. Supreme Court in 1983, the court expressly held that a canine sniff does not constitute a search.

While acknowledging that the Fourth Amendment “protects people from unreasonable government intrusions into their legitimate expectations of privacy,” the court found the use of detection dogs to be unique.

It’s far less intrusive than a traditional search, the judges observed.

They also noted that, unlike a full-blown search which may or may not uncover various types of contraband, a canine sniff is limited to ascertaining the existence or non-existence of only the type of contraband that the animal has been trained to detect.

Now you might think that since the U.S. Supreme Court has determined that a canine sniff is not search, the issue has been resolved with finality.

This, however, is not the case because the individual states are free to grant greater protections to their citizens than those required by the U.S. Constitution.

While some such state court rulings do follow logically from unique language in their respective constitutions, in many cases, the expanded rights are actually the product of unwarranted judicial activism.

Quite bluntly, some judges use the pretext of interpreting their state’s constitution to elevate their own personal views to the status of statewide constitutional rights.

This becomes obvious when one considers that, particularly where individual rights are concerned, there is rarely any meaningful difference in language between the federal Constitution and those of the individual states.
NEW YORK LAW

Last Tuesday, the New York Court of Appeals reiterated its determination to create an expanded right for New Yorkers insofar as canine sniffs are concerned.

Thus pointedly disagreeing with the analysis of the U.S. Supreme Court, the court held that such police actions constitute a search under the New York State Constitution.

Although the court ruled in two separate cases, the legal issue was identical in each. Hence only one, People vs. Devone, is discussed here.

On August 1, 2007, police stopped a vehicle after noting that the driver was talking on a cell phone. Unable to produce a license or registration, he informed the officers that the car belonged to his cousin, but that he did not know his cousin’s name.

When the police asked for the cousin’s whereabouts, the driver pointed to his passenger, Damien Devone. The officers then ran a license plate check and discovered that the car was, in reality, registered to a female.

Because of the “suspicious inconsistencies” in the driver’s replies, the police ordered the two men out of the car, and retrieved a narcotics detection dog to sniff the exterior of the vehicle. The dog alerted at the pillar between the driver and rear passenger seat windows, an indication to the officers of the presence of drugs.

After one of the officers opened the driver’s side door, the animal scratched at the console between the driver’s and passenger’s seats.

A search of the console revealed crack cocaine.

Devone thereafter claimed that the canine sniff was a search under the New York State Constitution, that police lacked reasonable suspicion to conduct the search, and that the crack cocaine was therefore inadmissible in evidence against him.

Although the court’s seven judges unanimously agreed that a search had occurred, a slim 4-3 majority concluded that the police had a legally sufficient basis to conduct the canine sniff.

In an opinion by Judge Carmen Ciparick, the court’s three most liberal judges dissented, arguing that the drugs should have been excluded from evidence because the police lacked reasonable suspicion to let the dog do his thing.

While the court reached the right result in ruling against Devone, its conclusion that a canine sniff constitutes a search in New York State is a radical proposition that flies in the face of the common sense analysis of a unanimous U.S Supreme Court.

And while Damien Devone lost his particular appeal, countless future defendants are going to avoid justice because state judges, in retrospect, conclude that the police lacked sufficient cause to employ the detection dogs.

That’s good news for the bad guys, and bad news for the rest of us.

[Daniel Leddy’s column appears each Tuesday on the Advance Editorial Page. His e-mail address is JudgeLeddy@si.rr.com.]