People v. ButlerPeople v. Butler
Appeal from a judgment of the County Court of Broome County (Cawley Jr., J.), rendered September 5, 2018, convicting defendant upon his plea of guilty of the crimes of criminal possession of a controlled substance in the third degree and tampering with physical evidence.
In March 2017, two police officers assigned to the Broome County Special Investigations Unit conducted a traffic stop of defendant‘s vehicle in the City of Binghamton, Broome County, followed by a canine search of the vehicle. When the canine alerted for drugs on defendant‘s person, he fled and was soon apprehended nearby. During the pursuit, the officers observed defendant reach into the back of his pants, leading officers to believe “that he might have thrown something.” Following defendant‘s arrest, police discovered a discarded package found to contain 76 packets of heroin. Defendant admitted that the drugs belonged to him and that he lost an item of jewelry during the chase, which was also recovered by the police. An indictment followed, charging defendant with criminal possession of a controlled substance in the third degree, tampering with physical evidence and obstructing governmental administration in the second degree. After County Court denied defendant‘s motion to suppress the evidence of the drugs seized and statements made as the product of an illegal search, defendant pleaded guilty to both the possession and tampering charges. In accord with the plea agreement, defendant was sentenced to a prison term of four years, with two years of postrelease supervision, on the possession conviction, and to a lesser concurrent term on the tampering conviction. Defendant appeals.
Defendant challenges County Court‘s suppression ruling, a claim that survives his guilty plea in the absence of a valid appeal waiver (see People v Cogdell, 126 AD3d 1136, 1138 [2015], lv denied 25 NY3d 1200 [2015]). To begin, defendant acknowledges that the police officers had probable cause to effect the traffic stop (see People v Blandford, 190 AD3d 1033, 1035 [2021], lv granted ___ NY3d ___ [Mar. 5, 2021]). Defendant asserts, however, that the ensuing canine sniff search of his vehicle and person was impermissible, contending that the police lacked a “founded suspicion” to search the vehicle and probable cause to search his person. In People v Devone (15 NY3d 106 [2010]), the Court of Appeals determined that a canine sniff of the exterior of a vehicle constitutes a search under
Both of the involved officers, Todd Haven and Christopher Bracco, testified at the suppression hearing. Haven explained that, while the two officers were conducting surveillance prior to the traffic stop, he observed
The dynamic changed, however, once Bracco initiated the search. Bracco explained that the canine was “a passive alert narcotics detection dog.” Bracco used the phrase “in odor” to indicate when the canine catches the scent of narcotics and noted that the canine “alerts” by sitting once the narcotics are located. As Bracco was returning with the canine, defendant was standing with Haven about six to eight feet from the vehicle. The canine was in front of Bracco and started to pull towards defendant, indicating to Bracco that the canine was “in odor.” Bracco redirected the canine and, as they proceeded around the vehicle, the canine jumped into the driver‘s seat area and began sniffing the seat — indicating to Bracco that the canine was once again “in odor.” Bracco then decided to “see if there‘s any odor on [defendant].” He extended the leash and allowed the canine to walk around Haven and defendant. Once behind defendant, the canine “started to become in odor.” The canine then “put his nose in the groin/buttock region of [defendant], and then he sat.” Bracco stated that the canine “has got something” and defendant bolted.
These circumstances do not present a situation, as inaccurately characterized by County Court, of a canine simply sniffing the air around defendant. Defendant correctly asserts that the canine‘s contact sniff of his person intruded upon his personal privacy as secured under both the
Considering the context of a vehicle traffic stop and how events unfolded, we conclude that a reasonable suspicion standard should apply, not one of probable cause (see Terry v Ohio, 392 US 1, 8 [1968]; United States v Reyes, 349 F3d 219, 223-224 [5th Cir 2003], cert denied 540 US 1228 [2004]; People v Dunn, 77 NY2d 19, 26 [1990], cert denied 501 US 1219 [1991]; Tedford v State, 307 So 3d 738, 745-746 [Fla 4th DCA 2020]). A canine sniff is a minimal intrusion compared to a full-blown search of a person, intended only to detect the possession of narcotics (see People v Dunn, 77 NY2d at 26). Without prompting from Bracco, the canine twice was “in odor” of its own accord, providing a reasonable and articulable basis for Bracco to suspect that defendant possessed narcotics on his person. Given the necessity for prompt action, it was not unreasonable for Bracco to allow the canine to approach defendant. There was contact between the canine and defendant‘s person, but the record suggests that contact was brief and the canine quickly alerted. In these circumstances, we conclude that the search was valid and the suppression motion properly denied.
Defendant‘s remaining contentions are to no avail. Having discarded the heroin while properly being pursued by the officers, defendant abandoned any right to challenge the seizure of this evidence (see People v Ramirez-Portoreal, 88 NY2d 99, 110 [1996]; People v Boodle, 47 NY2d 398, 402-404 [1979], cert denied 444 US 969 [1979]). The record also establishes that defendant‘s statements were voluntarily made at the police station after he was duly apprised of his Miranda rights. As such, the judgment is affirmed.
Egan Jr., J.P., and Colangelo, J., concur.
Aarons, J. (concurring).
I agree with the majority that County Court correctly denied defendant‘s suppression motion. I write separately though because the majority‘s analysis of whether the canine search of defendant‘s person contravened constitutional standards and what standard applies to make that assessment goes beyond our jurisdiction and cannot be a basis to affirm the judgment.
In denying defendant‘s suppression motion, County Court found that founded suspicion existed to conduct a canine search of the vehicle. The majority, as do I, concludes that this finding was proper. Defendant, however, also argues that the canine search of him was an illegal search. The court concluded that defendant had no reasonable expectation of privacy in the air surrounding him and, therefore, “[i]t was . . . perfectly acceptable for [the canine] to approach defendant in an effort to ‘sniff’ the air surrounding defendant.” I agree with the majority that the court inaccurately characterized the situation as a canine sniffing the air and that the proper questions were whether the canine sniff of defendant‘s person constituted an unconstitutional search and what the applicable standard should
Our power of review extends only to “any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected [the defendant]” (
Notwithstanding the foregoing, it is unnecessary to withhold decision (compare People v Kabia, 190 AD3d at 1107). In this regard, even if the canine search of defendant was illegal, I agree with the majority that defendant forfeited any expectation of privacy by abandoning the recovered heroin while being pursued by the police officers (see People v Boodle, 47 NY2d 398, 404 [1979], cert denied 444 US 969 [1979]; People v Davis, 83 AD3d 1210, 1212 [2011], lv denied 17 NY3d 794 [2011]) — a ground that County Court did rely upon in denying the suppression motion. I also agree with the majority that the court correctly found that defendant‘s statements made at the police station were done so voluntarily (see generally People v Bradford, 15 NY3d 329, 333-334 [2010]). For these reasons, I respectfully concur.
Pritzker, J. (dissenting).
Although I agree with the majority that the canine‘s contact sniff search of defendant‘s person intruded upon his personal privacy, I disagree that a reasonable suspicion standard justifies this intrusion.1 To the contrary, it is my opinion that the more stringent probable cause standard should apply and that, because that standard was not met here, the canine sniff of defendant‘s person constituted an illegal search. The physical evidence obtained thereafter was tainted by the improper police conduct and should have been suppressed. Thus, I respectfully dissent.
“Depending upon the extent of intrusion upon
Although the requisite level of cause and justification necessary for a canine sniff search of an individual is an issue of first impression in New York, courts have articulated two levels of cause necessary for certain locations. To that end, the Court of Appeals has held that the use of a canine sniff in the common hallway of an apartment building to detect the presence of controlled substances constitutes a search that must be justified by reasonable suspicion (see People v Dunn, 77 NY2d 19, 26 [1990], cert denied 501 US 1219 [1991]; People v Devone, 57 AD3d 1240, 1242 [2008], affd 15 NY3d 106 [2010]). The Court, in so holding, stated that, “[g]iven the uniquely discriminate and nonintrusive nature of such an investigative device, as well as its significant utility to law enforcement authorities, we conclude that it may be used without a warrant or probable cause, provided that the police have a reasonable suspicion that a residence contains illicit contraband” (People v Dunn, 77 NY2d at 26). By contrast, the Court of Appeals has held that a canine sniff search of the exterior of a lawfully stopped vehicle must be supported only by a founded suspicion that criminality is afoot (see People v Devone, 15 NY3d 106, 113 [2010]; People v Blandford, 190 AD3d 1033, 1036-1037 [2021], lv granted ___ NY3d ___ [Mar. 5, 2021]). In applying this less stringent standard, the Court recognized that “there is a diminished expectation of privacy attributed to individuals and their property when traveling in an automobile” (People v Devone, 15 NY3d at 113 [internal quotation marks and citation omitted]).
In light of these holdings, the majority‘s opinion would allow the search of an individual‘s person upon the same degree of cause that would permit a search of a
To be sure, it could be argued that a protective pat frisk, which requires only reasonable suspicion, is in some aspects similar to the canine sniff that occurred here. However, this less stringent standard is only applicable if an officer “has knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety” (People v Wideman, 192 AD3d 1384, 1385 [2021] [internal quotation marks, brackets and citations omitted]; see
Finally, it was only after this improper search that defendant fled and discarded the drugs; thus, he was not “acting spontaneously or making a conscious and independent decision to abandon the property” (People v Pirillo, 78 AD3d 1424, 1426 [2010]; compare People v Boodle, 47 NY2d 398, 404 [1979], cert denied 444 US 969 [1979]; People v Riddick, 224 AD2d 782, 783-784 [1996]). Accordingly, the physical evidence obtained thereafter was tainted by the improper police conduct and should have been suppressed (see People v Pirillo, 78 AD3d at 1426; People v Sampson, 68 AD3d 1455, 1457-1458 [2009]). As suppression of the evidence would require dismissal of the indictment, we need not reach defendant‘s argument that County Court erred by failing to suppress defendant‘s statements.
ORDERED that the judgment is affirmed.