Dog-Sniff Searches and the Human Body, What’s a Search and What’s Legal?

From the DA’s Desk: Dog-Sniff Searches and the Human Body  
By Robert Phillips  
Deputy District Attorney (ret.) 

An interesting topic for which there is actually very little case law is dog-sniff searches as they relate to sniffing one’s person.  

There is plenty of case law out there to the effect that using a police canine to sniff a lawfully stopped vehicle is not a search, given the lack of any privacy expectations in the air surrounding our vehicles. (Illinois v. Caballes (2005) 543 U.S. 405). Courts have also held that it’s lawful to detain a person’s luggage (with a reasonable suspicion) and have a police dog sniff it despite the lack of probable cause or a warrant. That’s because such a luggage sniff is not a “search,” given a similar logic of having no expectation of privacy in the air around one’s luggage. (United States v. Place (1983) 462 U.S. 696.)  

In light of these cases, it might come as a surprise to you that the weight of authority, what little there is of it, for a police dog sniffing one’s person — as opposed to a vehicle or luggage — holds to the contrary.  

Recent Case on Drug-Sniffing of a Person’s Body 

The very recent appellate court case of People v. Butler (Dec. 19, 2023) in New York, illustrates this rule. For a police drug-detection dog to lawfully sniff a person, there must be cause — either probable cause or at least a reasonable suspicion — to believe that the person sniffed has illegal drugs on him or her. In Butler, officers made a lawful traffic stop of Butler’s car after observing what appeared to be defendant engaging in a hand-to-hand street drug transaction. While contacting him about some subsequent driving violations, an officer’s drug-sniffing canine, Apache, alerted on the driver’s seat area of defendant’s car. Apache’s handler then directed the dog toward the defendant himself who, by this time, was out of his car. ....

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