People v. Price

• Decision Date: 22 December 1981
• Citation: 446 N.Y.S.2d 906,431 N.E.2d 267,54 N.Y.2d 557
• Parties: , 431 N.E.2d 267 The PEOPLE of the State of New York, Respondent, v. Leonard PRICE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 906

446 N.Y.S.2d 906

54 N.Y.2d 557, 431 N.E.2d 267

The PEOPLE of the State of New York, Respondent, v. Leonard PRICE, Appellant.

Court of Appeals of New York.

Dec. 22, 1981.

Herbert L. Greenman and Murray J. Grashow, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty. (John J. De Franks, Timothy R. Harvey, Asst. Dist. Attys., of counsel), for respondent.

OPINION OF THE COURT

JASEN, Judge.

The issue raised by this appeal, one of first impression in New York, is whether the use of a trained dog to indicate the presence of a controlled substance in a passenger's luggage constitutes a search within the purview of the Fourth Amendment. We hold that it does not.

Defendant Leonard Price and his codefendant, Carl Parsons, arrived at the Los Angeles airport shortly after midnight, Los Angeles time, on January 12, 1979. Detective Kaiser of the Los Angeles Police Department, who was assigned to patrol the airport that evening, observed that both men were sweating profusely and appeared very nervous while purchasing their tickets and waiting for their flight to Buffalo. Although they had no previous reservations, they arrived within 10 minutes of the scheduled departure. Defendants paid cash for the tickets and Detective Kaiser observed that they were carrying large sums of money.

Detective Kaiser, his suspicions having been raised by the defendants' conduct, notified other officers who brought a specially trained dog, Frog, to the airline's baggage area. Frog was trained to detect the presence of cocaine, heroin or marihuana; he was rated 100% effective by the Los Angeles police, having indicated the presence of drugs 705 times in 705 opportunities to do so.

Based on Detective Kaiser's observations and Frog's positive reaction indicating the presence of controlled substances in the defendants' luggage, the Los Angeles police contacted a special agent of the Drug Enforcement Administration (DEA), who relayed the information, including information concerning Frog's training and reliability, to the New York State Police. The State Police secured a search warrant which authorized the search of defendants and their luggage.

After allowing defendants to claim their baggage at the Buffalo airport, drug enforcement agents stopped the defendants. Pursuant to the search warrant, both defendants and their luggage were searched. A large amount of heroin was found in one of the suitcases, and the defendants were placed under arrest.

The defendant on this appeal, Leonard Price, was indicted and charged with criminal possession of a controlled substance in the first degree (Penal Law, § 220.21, subd. 1; § 20.00) and criminally using drug paraphernalia in the second degree (Penal Law, § 220.50, subd. 1; § 20.00). Subsequently, defendant brought an omnibus motion, pursuant to CPL 710.20, to vacate the search warrant and suppress the evidence. In pertinent part, that motion argued that the use of the dog by the Los Angeles police constituted a search that was unlawful because it was not authorized by a warrant. Therefore, the reaction of the dog, being the result of an illegal search, could not constitute probable cause justifying the issuance of a search warrant in New York.

Trial court denied the motion to suppress stating that: "A person's right to expectations of privacy does not extend to the atmosphere generally * * * His introduction of emanations into the same which may inculpate him in crime is at his own risk." Defendants then entered a plea of guilty to a reduced charge of criminal possession of a controlled substance in the second degree. (Penal Law, § 220.41.) On appeal, the Appellate Division, 78 A.D.2d 489, 434 N.Y.S.2d 834, affirmed the judgment against defendant, holding that the California, police had not violated his Fourth Amendment rights by using the trained dog to establish probable cause. Hence, probable cause having been lawfully established, there was an appropriate basis upon which a search warrant could be obtained by the New York State Police. The order of the Appellate Division should be affirmed.

The right to be free from unreasonable searches and seizures protects people "from unreasonable governmental intrusion" "wherever an individual may harbor a reasonable 'expectation of privacy' ". (Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889, quoting Katz v. United States 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, Justice Harlan concurring.) The Supreme Court has ruled subsequently that people who ship goods by rail in a closed and locked footlocker have such a "reasonable expectation of privacy". (United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538.) Therefore, it would be necessary to obtain a warrant, based on probable cause, before the footlocker could be searched. ¹

The principle of Chadwick clearly establishes that the defendant in this case had a reasonable expectation of privacy in the closed suitcases. The issue is not, as in Chadwick, whether a warrant was necessary for the police to open the suitcases, ² but, rather, whether a warrant was required to allow the dog to sniff the air surrounding the luggage in order to determine whether contraband was being carried in the luggage. Since the dog does nothing more than smell the air surrounding the luggage in order to detect odors emanating from that luggage, there was no intrusion or search of the luggage. Defendant must assert a reasonable expectation that the air surrounding his luggage and the odor apparent in that surrounding air will remain private. In such circumstances, the Fourth Amendment affords no protection.

Such an expectation of privacy is not supported by simple logic, analogous precedent or by the conduct of others similarly situated to the defendants. It is logically simplistic that once one releases something into the open air, there can be little reasonable expectation of asserting one's claims of privacy in either the item itself or in the surrounding air. (United States v. Goldstein, 635 F.2d 356, cert. den. 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972, United States v. Solis, 536 F.2d 880.) Just as there is no reasonable expectation of privacy in items left in the plain view of an officer lawfully in the position from which he observes the item (see, e.g., Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067), there can be no reasonable expectation that plainly noticeable odors will remain private. Those Federal cases that have already considered whether the use of a dog trained to sniff out controlled substances interferes with defendant's reasonable expectations of privacy have similarly concluded that there is no reasonable expectation of privacy in the air surrounding one's possessions. (See, e.g., United States v. Fulero, 498 F.2d 748; United States v. Venema, 563 F.2d 1003; United States v. Bronstein, 521 F.2d 459, cert. den. 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324; United States v. Solis, 536 F.2d 880, supra.) Furthermore, the common use of mothballs and talcum powder by drug traffickers to cover such odors (see, e.g., United States v. Fulero, 498 F.2d 748, supra; United States v. Solis, 536 F.2d 880, supra; United States v. Goldstein, 635 F.2d 356, supra) indicates that there is no such expectation of either confining the odors or of privacy in the odors emanating from one's luggage.

The only potentially distinguishing factor, in this type of case, is the necessity for the police to depend on the aid of the dog, Frog, the "canine cannabis connoisseur". (United States v. Bronstein, 521 F.2d 459, supra.) As the Appellate Division noted, a dog's superior senses have long been used to aid mankind in a variety of contexts. Not the least of these has been the use of dogs to track by scent escaped criminals or lost persons and articles. (1 Wigmore, Evidence § 177, subd. There is little conceptual difference between the use of the dog to track the criminal himself and a similar use of the dog to detect contraband which the criminal unlawfully possesses. (United States v. Johnson, 660 F.2d 21.) Under the circum stances of this case, the use of the dog, Frog, was justified.

In a somewhat similar situation, this court has held that use of a flashlight is not unreasonable even though it makes it possible for a police officer to make observations that would normally be foreclosed by the darkness. (People v. Cruz, 34 N.Y.2d 362, 370, 357 N.Y.S.2d 709, 314 N.E.2d 39; People v. Sullivan, 29 N.Y.2d 69, 323 N.Y.S.2d 945, 272 N.E.2d 464.) ³ Similarly, the use of searchlights and binoculars to enhance an officer's normal vision has been sanctioned. (United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202; United States v. Minton, 488 F.2d 37.)

What expectations of privacy defendants might otherwise have asserted were reduced by the fact that they surrendered their luggage to a common carrier which also has a responsibility for assuring the safety of its passengers by monitoring what is shipped on the airplanes. (United States v. Bronstein, 521 F.2d 459, supra.) It is common knowledge that all airline passengers and their luggage are subject to being searched and that these searches, although devised to protect against hijackings, are reasonable even when contraband is discovered in areas where a person would normally have a reasonable expectation of privacy. (People v. Kuhn, 33 N.Y.2d 203, 351 N.Y.S.2d...