NY: Dog sniff of the person is a search

A dog sniff of the person is a search. There is a greater zone of privacy for the person than an inanimate object. People v. Butler, 2023 NY Slip Op 06468, 2023 N.Y. LEXIS 2023 (Dec. 19, 2023), aff’g and remanded, 196 A.D.3d 28, 148 N.Y.S.3d 286 (3d Dept 2021)):

Applying the Supreme Court’s Fourth Amendment jurisprudence to the instant case, we hold that the use of a canine to sniff defendant’s body for the presence of narcotics qualified as a search. This is true even if we accept County Court’s apparent conclusion that when Apache put its nose in defendant’s “groin/buttock region,” the dog did not make actual contact with defendant and sniffed only the air closely surrounding his person. The lack of direct physical contact is not dispositive in this context because of the “heightened” interest society recognizes in the privacy and security of the human body, which can encompass space immediately surrounding the body and was clearly implicated by what occurred here (cf. Jardines, 569 US at 7 [majority op] and 13 [Kagan, J., concurring]).

It cannot be disputed that society treats many matters related to the body as private, or that individuals have a significant interest in the security and integrity of their persons (see e.g. Missouri v McNeely, 569 US 141, 159, 133 S. Ct. 1552, 185 L. Ed. 2d 696 [2013]; Skinner v Ry. Labor Executies’ Assn., 489 US 602, 616, 109 S. Ct. 1402, 103 L. Ed. 2d 639 [1989]; Terry v Ohio, 392 US 1, 9, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]; Schmerber v California, 384 US 757, 772, 86 S. Ct. 1826, 16 L. Ed. 2d 908 [1966]). The Fourth Amendment protects those important interests from unreasonable intrusion by the government. Indeed, although this Court has at times described governmental intrusion into the home as “the chief evil” against which the Fourth Amendment is directed (see People v Levan, 62 NY2d 139, 144, 464 N.E.2d 469, 476 N.Y.S.2d 101 [1984] [internal quotation marks omitted]), the text of the Constitution notably lists “[t]he right of the people to be secure in their persons” first among the several areas entitled to protection, and the Supreme Court has recognized the heightened nature of that interest (US Const, 4th amend; see Terry, 392 US at 9 [“‘No right is held more sacred, or is more carefully guarded, … than the right of every individual to the possession and control of his own person, free from all restraint or interference of others'” (emphasis added, quoting Union P. R. Co. v Botsford, 141 US 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734 [1891])]; see also Horton v Goose Cr. Ind. Sch. Dist., 690 F2d 470, 478 [5th Cir 1982] [“the (F)ourth (A)mendment applies with its fullest vigor against any intrusion on the human body”]).

Thus, the Supreme Court has long held that the Fourth Amendment is implicated when the government attempts to gather evidence of criminal activity from an individual’s person. It has recognized that a search occurs whether the particular method employed by the government entails a “compelled surgical intrusion into an individual’s body” (Winston v Lee, 470 US 753, 759, 105 S. Ct. 1611, 84 L. Ed. 2d 662 [1985]; see Schmerber, 384 US at 767); “gentle” or “light” contact with the body (see Maryland v King, 569 US 435, 446, 133 S. Ct. 1958, 186 L. Ed. 2d 1 [2013]); “brief” contact with “outer clothing” (Terry v Ohio, 392 US 1, 24-25, 88 S. Ct. 1868, 20 L. Ed. 2d 889 [1968]); mandated collection by the individual searched of matter emitted from their body for testing by the government (Skinner, 489 US at 617); or the “visual and aural monitoring” of private bodily functions (id.). In addition, multiple federal circuit courts have held that the use of magnetometers to detect concealed metal is a search, notwithstanding that the use of such technology does not involve physical contact and is “far less intrusive than the use of large dogs to sniff [people’s] bodies” (Horton, 690 F2d at 478 [collecting authorities]; see United States v Albarado, 495 F2d 799, 803 [2d Cir 1974] [“Even the unintrusive magnetometer walk-through is a search in that it searches for and discloses metal items within areas most intimate to the person where there is a normal expectation of privacy”]).

This precedent confirms that the presence or absence of direct physical contact with the body is not determinative of whether or not government conduct implicates “[t]he right of the people to be secure in their persons” and qualifies as a search; the question turns instead on whether the conduct compromises personal dignity and violates reasonable social expectations concerning the security of one’s body and the privacy of matters related thereto (see US Const, 4th Amend; Skinner, 489 US at 613-614 [the Fourth Amendment “guarantees the privacy, dignity, and security of persons”]; King, 569 US at 446 [“The fact that an intrusion is negligible [or severe] is of central relevance to determining reasonableness, [but] it is still a search as the law defines that term” (emphasis added)]).