Eye on Eagle

People v. Butler


Issue Before the Court: Whether a canine-sniff of one’s person is a search under the
Fourth Amendment.

Factual Background: Police officers observed what they believed was a drug sale in
a parking lot described as being “known for such activity.” They saw Mr. Butler leave
the same parking lot and followed him. They eventually stopped Mr. Butler for an
alleged traffic violation and used that as an opportunity to have a police dog search
Mr. Butler’s vehicle for drugs. When the dog arrived on the scene, he pointed toward
Mr. Butler three times, indicating he smelled drugs. The officers then brought the dog
closer to Mr. Butler to see if he smelled drugs, at which point the dog stuck his nose
onto (or intensely close to) Mr. Butler’s crotch and bum areas and kept it there. When
an officer indicated that behavior meant the dog found drugs, Mr. Butler took off
running. Mr. Butler tossed drugs as he ran, and he was eventually arrested.

Mr. Butler moved for suppression. The trial court denied suppression, finding that the
dog sniffing Mr. Butler was not a search because Mr. Butler did not have a reasonable
expectation of privacy in the air around him. The court also found that the drugs Mr.
Butler tossed when he ran were abandoned.

The Appellate Division issued a split decision (two justices on the main opinion, one
justice concurring in the result, and two justices dissenting), and held that the dog
sniff was a search. However, the court affirmed, reasoning that the police had
reasonable suspicion for the search.

Held: Yes, the use of a dog to sniff a person’s body for drugs or other evidence of a
crime is a search under the Fourth Amendment.

CAL Observers: This was a unanimous decision on a question of first impression in
New York and one the Supreme Court has yet to decide.

The Court reasoned that the lack of direct physical contact with a person’s body is not
dispositive on the question of whether an act constitutes a search of their person
under the Fourth Amendment. Society recognizes a heightened interest in the privacy
and security of the human body, which encompasses the space immediately
surrounding the body. In other words, this case can stand for the proposition that any
conduct that invades someone’s personal space is a search.

One procedural point of note that opens a new question: the Court found that the
Appellate Division did not have jurisdiction to decide what standard applies to a
canine-sniff search (probable cause vs. reasonable suspicion) or whether the search
was proper. The suppression court in this case had stopped the inquiry when it
determined the canine sniff was not a search and therefore did not rule on the
applicable standard. Thus, under LaFontaine, the Appellate Division could not reach
that question. The Court reversed and remitted to the trial court to answer that
question, leaving it open for now. That notably leaves the door open for attorneys to
argue for the higher probable cause standard to be applied to canine searches or any
similar invasion of a person’s personal space.

Two additional aspects of this opinion are worth nothing. First, the Court spent a lot
of time discussing the interest and importance of privacy in one’s own body. The
opinion has a lot of great language that attorneys can use creatively to push Fourth
Amendment law on other law enforcement techniques or technologies that touch on
the self—e.g., facial recognition technology or others that could be characterized as an
invasion of one’s body or digital body. Second, the decision also highlights the history
of police using dogs to intimidate and control people of color and marginalized
communities. That history is important because it can provide a reason why, for
example, a person might not have felt free to leave when they were stopped by the