People v. Devone, 17 N.Y.3d 106 (2011)
A canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under the New York State Constitution, requiring founded suspicion that criminal activity is afoot.
Summary
The New York Court of Appeals addressed whether a canine sniff of a vehicle’s exterior is a search under the state constitution and, if so, what level of suspicion is needed. In two consolidated cases, *People v. Devone* and *People v. Abdur-Rashid*, the Court held that a canine sniff is indeed a search, but requires only “founded suspicion” of criminal activity, a standard lower than reasonable suspicion. The Court reasoned that while individuals have a diminished expectation of privacy in their vehicles compared to their homes, that expectation still exists and is protected by the constitution. Because police had founded suspicion in both cases, the evidence obtained was admissible.
Facts
People v. Devone: Police stopped a vehicle because the driver, Washington, was using a cell phone. Washington could not produce a license or registration and gave inconsistent information about the vehicle’s owner. A canine sniff of the vehicle’s exterior resulted in an alert for narcotics. A subsequent search revealed crack cocaine.
People v. Abdur-Rashid: An officer stopped Abdur-Rashid’s vehicle for lacking a front license plate. A second officer stopped the same vehicle 45 minutes later for the same reason and noticed debris on the vehicle. Abdur-Rashid and his passenger gave conflicting stories. Abdur-Rashid appeared nervous, and a canine sniff alerted to the presence of drugs. A search of the trunk revealed cocaine.
Procedural History
People v. Devone: The County Court initially suppressed the evidence, finding the canine sniff was an illegal search without reasonable suspicion. The Appellate Division reversed, holding that founded suspicion was sufficient. The Court of Appeals affirmed the Appellate Division.
People v. Abdur-Rashid: The County Court denied the motion to suppress, finding the search lawful. The Appellate Division affirmed, holding the officer had founded suspicion. The Court of Appeals affirmed the Appellate Division.
Issue(s)
1. Whether a canine sniff of the exterior of a lawfully stopped vehicle constitutes a search under Article I, § 12 of the New York State Constitution.
2. If so, what level of suspicion is required before law enforcement can conduct that search?
Holding
1. Yes, because a canine sniff of a vehicle’s exterior constitutes a search under Article I, § 12 of the New York State Constitution, as it intrudes upon a place where a person has a reasonable expectation of privacy, albeit a diminished one as compared to a home.
2. Founded suspicion that criminal activity is afoot is sufficient, because the expectation of privacy in an automobile is less than in a home, and canine sniffs are less intrusive than a full search.
Court’s Reasoning
The Court distinguished its prior holding in *People v. Dunn* (77 N.Y.2d 19 (1990)), which required reasonable suspicion for a canine sniff outside an apartment, reasoning that automobiles have a diminished expectation of privacy compared to residences. The Court acknowledged the reduced, but legitimate, expectation of privacy in an automobile, placing it between a home and luggage handed to a common carrier (as in *People v. Price*, 54 N.Y.2d 557 (1981)).
The Court adopted a “founded suspicion” standard, a level of suspicion lower than “reasonable suspicion,” balancing the diminished expectation of privacy in a vehicle with the utility of canine sniffs for law enforcement. The Court noted, “Given that diminished expectation of privacy, coupled with the fact that canine sniffs are far less intrusive than the search of a residence and provide ‘significant utility to law enforcement authorities’ application of the founded suspicion standard in these cases is appropriate.”
In both *Devone* and *Abdur-Rashid*, the Court found the officers had founded suspicion. In *Devone*, the driver’s inability to produce a license or registration, inconsistent stories, and vehicle registration discrepancies provided the necessary suspicion. In *Abdur-Rashid*, the condition of the vehicle, unusual travel plans, and the defendant’s nervous behavior justified the canine sniff. The court concluded that the officers in both cases possessed a founded suspicion to conduct the canine sniff.