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.