Brady Begeal, Topics Chair, Albany Government Law Review Member
The United States Supreme Court directly addressed the constitutionality of using drug-sniffing canines for the first time in 1983, holding that a “search” under the Fourth Amendment had not taken place when police used a canine to sniff a person’s luggage at an airport. The Court revisited the issue in 2005, unanimously concluding again that a police officer’s use of a canine to sniff the exterior of a driver’s vehicle to locate hidden narcotics did not constitute a “search” within the meaning of the Fourth Amendment. The result of these decisions is that under federal law police generally do not need any level of suspicion to use canines to sniff for drugs. However, the New York Court of Appeals, through its continued commitment to provide greater state constitutional protection from unreasonable searches, has decided to the contrary. In People v. Devone, the Court of Appeals decided “whether a canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under article I, § 12 of our State Constitution and, if so, what level of suspicion is required before law enforcement can conduct that search.” In a 4-3 decision, the Court found that a canine sniff does amount to a “search”, thus triggering the protection of the state constitution. Despite this, the Court held that a “reasonable suspicion” is not required, but instead, police need only a “founded suspicion that criminal activity is afoot” before such a search can take place.
The Facts of People v. Devone
People v. Devone, decided this summer, was a combination of two cases with similar sets of facts. In the first case, two police officers pulled a vehicle over when they noticed the driver was using his cell phone. The driver could not produce a driver’s license or registration for the vehicle. When asked who owned the vehicle, the driver said it was his cousin’s, but that he did not know his cousin’s name. He then pointed to the man sitting in the front passenger’s seat, indicating that the person was his cousin. When the police called in the license plate, they learned that the vehicle belonged to a female, but was not reported stolen. Based on the inconsistent answers provided by the driver, the police officers decided to use the canine they had in their police vehicle to sniff the exterior of the car for narcotics. The dog quickly alerted the officers that drugs were inside the vehicle. When the officers opened the passenger side door, the dog immediately began scratching at the console. Inside, the officers found crack cocaine. Ultimately, the case made it to the Appellate Division. The Third Department held the officer had conducted a search, but that “the police needed only founded suspicion as opposed to a reasonable suspicion to conduct a canine sniff of the vehicle’s exterior.”
In the second set of Devone facts, a police officer pulled over a vehicle that was missing its’ front license plate. The officer issued the driver a ticket for the missing license plate, as well as an expired inspection sticker. Forty-five minutes later, the same driver was pulled over by another officer who noticed the missing license plate and also that sticks and twigs were protruding from the front bumper. The officer ran the license plate and the report incorrectly showed that the driver did not have insurance. The officer then questioned the passenger of the vehicle, who gave an unbelievable and “implausible” story about a minor accident they had been in. Meanwhile, the officer noticed that the driver, who was standing outside the vehicle, was acting nervous and kept looking at the officer’s canine in the police car. The officer decided to run a sniff search of the vehicle using the canine. The canine was able to locate a duffle bag in the trunk that contained bags of crack cocaine. Once again, the Third Department concluded that a search had occurred and that “the officer properly conducted an exterior canine sniff of the vehicle based upon ‘a founded suspicion that criminality was afoot’”.
In a brief opinion addressing both sets of facts, the Court of Appeals reiterated that in New York, inquiries as to whether a “search” has taken place should mainly focus on what expectation of privacy the defendant had at the time of the search. This analysis is markedly different from the approach taken by the U.S. Supreme Court when it addressed the use of drug-sniffing canines. In the U.S. Supreme Court case, U.S. v. Place, police used a canine to sniff luggage carried by a suspect in order to detect drugs. Holding that a “search” had not taken place, the Supreme Court reasoned:
“[T]he 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. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.”
The Court reiterated this determination in Illinois v. Caballes in 2005, concluding that “[a] dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.” Thus, the Supreme Court has clearly made the invasiveness of the intrusion the determinative factor. The N.Y. Court of Appeals took a different approach in Devone. Citing People v. Dunn,  one of its previous canine sniff-search decisions, the Court explained: “[T]he fact that a given investigative procedure can disclose only evidence of criminality should have little bearing on whether it constitutes a search.” Instead, “the analysis should focus on whether there has been an intrusion into an area where an individual has a reasonable expectation of privacy”. The Court went a step further to highlight its’ differing approach by citing another of its decisions, People v. Price. The facts of Price were very similar to Place. Officers had commanded a canine to search a suspect’s luggage which turned up cocaine. Holding that no search had taken place, the Court reasoned that people have a minimal expectation of privacy in luggage “placed in the hands of a common carrier”.
Since the Court concluded that a search had taken place in both sets of facts in Devone, the state constitution requires that police officers be able to articulate a level of suspicion. The Court affirmed the Appellate Division’s standard, holding that officers only need a “founded suspicion” that “criminality” is “afoot”. A “reasonable suspicion”—the more demanding standard required before canines can be used to sniff the exterior of a home—is not necessary because there is a “diminished expectation of privacy attributed to individuals and their property when traveling in an automobile”. The court concluded by stating that both sets of defendants did in fact provide officers with a “founded suspicion” that “criminal activity” was “afoot”.
Practical and Legal Effect of Devone
The fact that the N.Y. Court of Appeals found that a search had taken place demonstrates that drivers in New York have more personal constitutional protection from intrusive police searches than they otherwise would have under federal law. However, even though police officers in New York will need a “founded suspicion” of “criminality” before they may use canines, Devone leaves unanswered the practical question of how “founded” must the suspicion be. The New York case law backing this standard is scarce and some find the decision in Devone troubling and even flawed. For example, the officer in the second set of Devone facts had a “founded suspicion” because of “the condition of defendant’s vehicle, the unusual travel plans of defendant[s], and defendant’s ‘nervous’ behavior”. Would it be enough if a driver was just acting very nervous? Would that give an officer the cause necessary to use a drug-sniffing canine? Furthermore, what does a missing license plate, expired insurance, or the ownership of the vehicle have to do with drugs?
These shortcomings of the “founded suspicion” standard were explained in the three-judge dissent to Devone. Writing for that dissent was Justice Ciparick, who said “the majority allows such a search without requiring any suspicion of illegal drug activity. Without a nexus between the suspicion held by the police and the capability of the canine,” the police probe into the driver’s vehicle “is but a fishing expedition.” What Ciparick points out is that under the majority’s rule, the suspicion of criminality that an officer must have does not have to be related at all to the purpose of the canine sniff-search, which is to locate illegal drugs. In the first set of facts in the Devone case, the police officer was clearly investigating the ownership of the vehicle, but decided to do a drug-search using the canine. The fact that no “nexus” is required, coupled with the fact that “[i]n New York, the permissible reasons for stopping a vehicle range from a violation of the Vehicle and Traffic Law to a roadblock,” creates a situation where police officers have a great deal of freedom and can be tempted to “skirt the line between legal and illegal searches.”
Thus, Devone is a double-edged sword. It provides a defendant in New York with a defense to the admission of key evidence that would be used in a drug conviction. However, it will surely not be difficult for police officers to overcome the requisite “founded suspicion” of “criminality” standard. As a result, it seems clear that the decision in Devone will encourage, rather than inhibit, the use of canine sniff-searching by police officers on the roadways. Drug interdiction task forces could begin to employ the use of canines at all checkpoints and canines may even become a regular sight at all traffic stops. This increased use of canines will surely push the constitutional boundaries of the Devone decision in the near future and hopefully lead to a more workable definition of “founded suspicion”.
Edited by Brittany Linder, Diana Filkins, and Joseph Cucco
 U.S. v. Place, 462 U.S. 696 (1983).
 Illinois v. Caballes, 543 U.S. 405 (2005).
 People v. Devone, 15 N.Y.3d 106, 110 (2010).
 Id. at 116.
 Id. at 110.
 Devone, 15 N.Y.3d at 110.
 Id. at 111.
 Devone, 15 N.Y.3d at 111.
 Id. at 112.
 Devone, 15 N.Y.3d at 112.
 Id. at 112–13.
 Id; U.S. v. Place, 462 U.S. 696, 707 (1983).
 Id. at 112–13.
 Place, 462 U.S. at 707.
 Illinois v. Caballes, 543 U.S. 405, 410 (2005). Noticeably missing from the Devone decision is any discussion or reference to the U.S. Supreme Court decision in Caballes, especially considering the fact that the Court does address the older Supreme Court case of U.S. v. Place.
 People v. Dunn, 77 N.Y.2d 19 (1990) (in Dunn, police used canines to sniff the hallway of an apartment building in order to detect drugs within one of the apartments. The court in that case also found that a “search” had taken place. However, it explained that there is a higher expectation of privacy in one’s home than in one’s vehicle while travelling on a public road or in luggage carried at an airport).
 Devone, 15 N.Y.3d at 112 (citing Dunn, 77 N.Y.2d at 24).
 Id. at 112–13 (citing Dunn, 77 N.Y.2d at 25 (internal citations omitted)).
 Id. at 113.
 People v. Price, 54 N.Y.2d 560 (1981).
 Devone, 15 N.Y.3d at 113.
 Id. at 113 (citing People v. Yancy, 86 NY2d 239, 246 (1995)).
 Id. at 113–14.
 Gregory Zak, Annual New York State Constitutional Issue: Search and Seizure: Supreme Court of the New York Appellate Division, Third Department, 26 Touro L. Rev. 821, 832–35 (2010).
 Devone, 15 N.Y.3d at 114.
 Id. at 116 (Ciparick J., dissenting).
 Id. at 110.
 1-20 Matthew Bender & Company, Inc., New York Criminal Practice, § 20.04 (2010); Nina Paul and Will, Trachman, Fidos and Fi-don’ts: Why the Supreme Court Should Have Found a Search in Illinois v. Caballes, 9 Boalt. J. Crim. L. 1 (2005).
*Please note that People v. Devone should be Italicized in the title.