People v. Dunn

• Decision Date: 29 November 1990
• Citation: 563 N.Y.S.2d 388,77 N.Y.2d 19,564 N.E.2d 1054
• Parties: , 564 N.E.2d 1054, 59 USLW 2376 The PEOPLE of the State of New York, Respondent, v. Jessie DUNN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 388

563 N.Y.S.2d 388

77 N.Y.2d 19, 564 N.E.2d 1054, 59 USLW 2376

The PEOPLE of the State of New York, Respondent, v. Jessie DUNN, Appellant.

Court of Appeals of New York.

Nov. 29, 1990.

Burton Ritter, New York City, for appellant.

Kevin M. Dillon, Dist. Atty. (John J. DeFranks and J. Michael Marion, Buffalo, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

In recent years, law enforcement officers have increasingly turned to specially trained dogs to assist them in their efforts in the "war against drugs." The present appeal raises the question of whether the use of these "canine cannabis connoisseurs"--as they have been termed ¹--to detect the presence of controlled substances in a person's apartment is subject to the strictures of the Fourth Amendment of the Federal Constitution or article I, § 12 of the New York State Constitution. For the reasons that follow, we conclude that while the use of such dogs does not implicate the protections of the Fourth Amendment, our State Constitution requires that the police have at least a reasonable suspicion that a residence contains illicit contraband before this investigative technique may be employed.

I

In May of 1988, prompted by information that controlled substances were being kept in an apartment leased by defendant in Hamburg, New York, the police arranged to have a trained narcotics detection dog brought to the common hallway outside his apartment door so that a "canine sniff" could be conducted. ² Upon its arrival, the dog "alerted," indicating the presence of drugs inside the apartment. Based on the dog's reaction, as well as their prior information, the police obtained a warrant to search the apartment. This search resulted in the seizure of large quantities of cocaine and marihuana, various items of drug paraphernalia and two handguns. Relying in part on the success of that search, the police then obtained a second warrant to search another of defendant's apartments, this one located in Cheektowaga, New York. That search also resulted in the seizure of cocaine and marihuana, as well as additional items of drug paraphernalia.

A nine-count indictment was subsequently returned against defendant charging him with, among other things, various drug-related offenses. Prior to trial, defendant moved to suppress all of the items of evidence which had been seized during the two searches. In support of his motion, defendant argued that the search warrants in question had been improperly issued insofar as they were based on the result of the "canine sniff" conducted outside his apartment door, which he asserted itself constituted an unlawful warrantless search unsupported by probable cause. Defendant's motion was denied, and he was subsequently convicted after a jury trial.

On appeal, the Appellate Division affirmed. A two-Justice plurality declined to hold the "canine sniff" in question to be a search within the meaning of either the Federal or our State Constitution. Although the plurality's holding obviated the need to determine if the police had any basis for subjecting defendant's apartment to this investigative device, they nevertheless noted that a reasonable suspicion did exist. Justice Lawton, although concurring with the plurality's holding that the "canine sniff" was not unlawful, disagreed that it did not constitute a search. He, however, believed that such a procedure, since it was minimally intrusive, needed to be supported only by a reasonable suspicion, which he, like the plurality, found to exist. The dissent, on the other hand, focusing on the sanctity of the home, thought that both a warrant and probable cause should be required. A Justice of the Appellate Division granted defendant leave to appeal to this Court. We now affirm, but solely on the ground that the police had a reasonable suspicion that defendant's apartment contained illicit contraband.

II

We first turn to defendant's contention that his rights under the Federal Constitution were violated. Our analysis here must begin with an examination of United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110. There, the Supreme Court addressed the issue of whether the exposure of a person's luggage, while at an airport, to a specially trained narcotics detection dog constituted a search within the meaning of the Fourth Amendment. In holding this investigative method not to be a search, the court primarily focused on its discriminate and nonintrusive character, particularly the extremely limited nature of the information revealed by such a procedure. As Justice O'Connor, writing for the majority, stated: "A 'canine sniff' by a well-trained narcotics detection dog * * * does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of [a person's] luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited." (462 U.S., at 707, 103 S.Ct., at 2644; see also, United States v. Jacobsen, 466 U.S. 109, 123, 104 S.Ct. 1652, 1662, 80 L.Ed.2d 85 ["governmental conduct that can reveal whether a substance is cocaine, and no other arguably 'private' fact, compromises no legitimate privacy interest", and thus, does not constitute a search within the meaning of the Fourth Amendment].)

In light of the rationale adopted by the Supreme Court in Place, and reaffirmed in Jacobsen, we reject defendant's contention that his Federal constitutional rights were violated. Since the "canine sniff" conducted outside his apartment could reveal only the presence or absence of illicit drugs, it did not constitute a search within the meaning of the Fourth Amendment. Although the Second Circuit, in United States v. Thomas, 757 F.2d 1359 [2d Cir.], cert. denied sub nom. Wheelings v. United States, 474 U.S. 819, 106 S.Ct. 67, 88 L.Ed.2d 54, held Place inapplicable to "residential sniffs," we find its attempt to distinguish that case unpersuasive (see, United States v. Colyer, 878 F.2d 469, 475 [D.C.Cir.] [questioning the correctness of the Thomas decision]. The distinction it relies upon, namely, the heightened expectation of privacy that a person has in his residence, is irrelevant under Place's rationale (see, United States v. Jacobsen, supra, 466 U.S. at 140, 104 S.Ct. at 1670-71 [Brennan, J., dissenting]; cf., People v. Price, 54 N.Y.2d 557, 563, 446 N.Y.S.2d 906, 431 N.E.2d 267). Whether or not there exists a heightened expectation of privacy, the fact remains that a "canine sniff" reveals only evidence of criminality (see, United States v. Place, supra, 462 U.S. at 707, 103 S.Ct. at 2644-45; see also, United States v. Jacobsen, supra, 466 U.S. at 122-124, 104 S.Ct. at 1661-62). Since that was the factor that was determinative in Place, we conclude that its holding is controlling even where the target of the "canine sniff" is a residence.

III

Having determined that defendant's rights under the Federal Constitution (U.S. Const. 4th Amend.) were not violated, we now turn to the question of whether our State Constitution provides greater protections (N.Y. Const., art. I, § 12). ³ Initially, we note that our decision in People v. Price, 54 N.Y.2d 557, 446 N.Y.S.2d 906, 431 N.E.2d 267, supra is not dispositive of this issue. Price, like the Supreme Court's decision in Place, involved the exposure of a person's luggage, located at an airport, to a trained canine's nose. However, in declining to find that particular procedure to be a search under our State Constitution, we, unlike the Place court, primarily focused on the reduced expectation of privacy that a person has with regard to the luggage he places in the hands of a common carrier (54 N.Y.2d, at 563, 446 N.Y.S.2d 906, 431 N.E.2d 267). Nowhere in Price did we even intimate that the investigative tool employed there did not constitute a search because it could disclose only the presence or absence of contraband.

We now must decide whether we should adopt the Place rationale as a matter of State constitutional law. At the outset, we note that in the past this Court has not hesitated to interpret article I, § 12 independently of its Federal counterpart when the analysis adopted by the Supreme Court in a given area has threatened to undercut the right of our citizens to be free from unreasonable government intrusions (see, People v. P.J. Video, 68 N.Y.2d 296, 508 N.Y.S.2d 907, 501 N.E.2d 556, on remand from New York v. P.J. Video, 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871; People v. Class, 67 N.Y.2d 431, 503 N.Y.S.2d 313, 494 N.E.2d 444, on remand from New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81; People v. Bigelow, 66 N.Y.2d 417, 497 N.Y.S.2d 630, 488 N.E.2d 451; People v. Johnson, 66 N.Y.2d 398, 497 N.Y.S.2d 618, 488 N.E.2d 439; People v. Gokey, 60 N.Y.2d 309, 469 N.Y.S.2d 618, 457 N.E.2d 723). Because we conclude that the Place analysis does just that, we decline to follow it.

Unlike the Supreme Court, we believe that the fact that a given investigative procedure can disclose only evidence of criminality should have little bearing on whether it constitutes a search. Notwithstanding such a method's discriminate and nonintrusive nature, it remains a way of detecting the contents of a private place (see, United States v. Jacobsen, supra, 466 U.S. at 140-141, 104 S.Ct. at 1670-71 [Brennan, J., dissenting]; United States v. Thomas, supra, at 1366-1367; see also, Gutterman, A Formulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance, 39 Syracuse L.Rev 647, 707-711 [1988]. Thus, our analysis should more appropriately focus on whether there has...