In People v. Devone (Ct. App. 6/08/2010) (Pigott, J.) (4-3), the police stopped a vehicle for cell phone use. The officers discovered that a male driver was operating a car registered to a female. After being ordered to exit the vehicle, police officers conducted a canine sniff search due to the “suspicious inconsistencies” in the driver's answers to various questions. After being signaled by the dog of the possibility of drugs, the officer found a quantity of crack cocaine in the seating console. The Appellate Division reversed the trial court's order suppressing the evidence and held that the police needed only a "founded suspicion" as opposed to a reasonable suspicion to conduct the canine sniff on the exterior of the vehicle.
In People v. Abdur-Rashid, a companion case, an individual was pulled over twice in one day for driving without a front license plate and having an expired inspection sticker. The second officer observed the defendant become anxious and ask to be let go since he was already stopped that day. When the officer questioned the passenger in the car, who claimed that he was only there trying to keep the driver awake and alert during their trip, the officer became suspicious and retrieved his drug sniffing dog. After being “alerted” by the dog, the officer found a black duffel bag in the trunk filled with two freezer bags of cocaine.
The Court of Appeals held that “founded suspicion" was present in both of these cases. The majority justified this lower standard, maintaining that an individual has a lower expectation of privacy in an automobile than in his or her home. Given this lowered expectation combined with the fact that the canine sniff is less intrusive, the founded suspicion standard was appropriate.
Judge Ciparick dissented, arguing that a reasonable suspicion standard should be met before a canine sniff is conducted. There is an expectation of privacy in portions of a vehicle not visible with the naked eye. Thus, probable cause is generally required for those areas. Thus, the dissent argued there should not be a difference between a dog sniff outside of a home (which is not allowed under People v. Dunn) and a sniff outside of a car. The dissent added that because drug sniffing dogs are trained for just that—drug sniffing—that those dogs would not have helped the officers ascertain whether the vehicle was stolen. Thus, the drug sniffing dogs served no purpose related to the stop itself; rather, the canines were used to engage in a fishing expedition for unrelated evidence.
Additionally, the dissent emphasized that the policy justification behind distinguishing between vehicular and residential privacy—practical concerns surrounding expediency—were not present here. Finally, the dissent pointed to New York's strong tradition of protecting its citizens from unreasonable searches as a justification for a higher standard.
re printed from http://www.nycrimblog.com/nycrim/suppression/