Lead Opinion
OPINION OF THE COURT
Thе issue raised by this appeal, one of first impression in New York, is whether the use of a trained dog to indicate the presence of a controlled substance in a passenger’s luggage constitutes a search within the purview of the Fourth Amendment. We hold that it does not.
Defendаnt Leonard Price and his codefendant, Carl Parsons, arrived at the Los Angeles airport shortly after midnight, Los Angeles time, on January 12, 1979. Detective Kaiser of the Los Angeles Police Department, who was assigned to patrol the airport that evening, observed that both men werе sweating profusely and appeared very nervous while purchasing their tickets and waiting for their flight to Buffalo. Although they had no previous reservations, they arrived within 10 minutes of the scheduled departure. Defendants paid cash for the tickets and
Detective Kaiser, his suspicions having been raised by the defendants’ conduct, notified other officers who brought a specially trained dog, Frog, to the airline’s baggage area. Frog was trained to detect the presence of сocaine, heroin or marihuana; he was rated 100% effective by the Los Angeles police, having indicated the presence of drugs 705 times in 705 opportunities to do so.
Based on Detective Kaiser’s observations and Frog’s positive reaction indicating the presenсe of controlled substances in the defendants’ luggage, the Los Angeles police contacted a special agent of the Drug Enforcement Administration (DEA), who relayed the information, including information concerning Frog’s training and reliability, to the New York State Police. The State Police secured a search warrant which authorized the search of defendants and their luggage.
After allowing defendants to claim their baggage at the Buffalo airport, drug enforcement agents stopped the defendants. Pursuant to the search warrant, both defеndants and their luggage were searched. A large amount of heroin was found in one of the suitcases, and the defendants were placed under arrest.
The defendant on this appeal, Leonard Price, was indicted and charged with criminal possession of a controllеd substance in the first degree (Penal Law, § 220.21, subd 1; § 20.00) and criminally using drug paraphernalia in the second degree (Penal Law, § 220.50, subd 1; § 20.00). Subsequently, defendant brought an omnibus motion, pursuant to CPL 710.20, to vacate the search warrant and suppress the evidence. In pertinent part, that motion argued that thе use of the dog by the Los Angeles police constituted a search that was unlawful because it was not authorized by a warrant. Therefore, the reaction of the dog, being the result of an illegal search, could not constitute probable cause justifying the issuance of a search warrant in New York.
Trial court denied the motion to suppress stating that: “A person’s right to expectations of privacy does not extend
The right to be free from unreasonable searches and seizures protects people “from unreasonable governmental intrusion” “wherever an individual may harbor a reasonable ‘expectation of privaсy’”. (Terry v Ohio,
The principle of Chadwick clearly establishes that the defendant in this case had a reasonable expectation of privacy in the closed suitcases. The issue is not, as in Chadwick, whether a warrant was necessary for the police to open the suitcases,
Such an expectation of privacy is not supported by simple logic, analogous precedent or by the conduct of others similarly situated to the defendants. It is logically simplistic that once one releases somеthing into the open air, there can be little reasonable expectation of asserting one’s claims of privacy in either the item itself or in the surrounding air. (United States v Goldstein, 635 F2d 356, cert den
The only potentially distinguishing factor, in this type of case, is the necessity for the police to depend on the aid of the dog, Frog, the “canine cannabis connoisseur”. (United States v Bronstein, 521 F2d 459, supra.) As the Appellate Division noted, a dog’s superior senses have long been used to aid mankind in a variety of contexts. Not the least of these has been the use of dogs to track by scent escaped criminals or lost persons and articles. (1 Wigmore, Evi
In a somewhat similar situation, this court has held that use of a flashlight is not unreasonable even though it makes it possible for a police officer to make observations that would normаlly be foreclosed by the darkness. (People v Cruz,
What expectations of privacy defendants might otherwise have asserted were reduced by the fact that they surrendered thеir luggage to a common carrier which also has a responsibility for assuring the safety of its passengers by monitoring what is shipped on the airplanes. (United States v Bronstein, 521 F2d 459, supra.) It is common knowledge that all airline passengers and their luggage are subject to being searched and that these searches, although devised to protect against hijackings, are reasonable even when contraband is discovered in areas where a person would normally have a reasonable expectation of privacy. (People v Kuhn,
Thus, since the use of the dog to indicate the presence of a controlled substance did not violate the defendant’s Fourth Amendment rights, the police conducted them
It is also the contention of the defendant that the use of a dog to indicate the presence of a controlled substance in the defendants’ luggage violated California law and that the law of the situs is controlling in this case. The use of a trained dog by the Los Angeles police to establish, in part, the probable cause upon which a search warrant is issued in New York does not involve a conflicts-of-law question. Instead, it is a question of whether or not the use of the dog is proscribed by either Federal or New York law, constitutional or statutory. Since we hold that there is no violation of defendant’s rights under either Federal or State law, there is no reason to suppress the evidence found in the search conducted pursuant to the warrant validly issued in New Yоrk.
Finally, we address defendant’s contention that Frog must be produced for examination and testing pursuant to CPL 240.20. There is no validity to defendant’s argument where he has failed to present any evidence to rebut the People’s documentary proof of the dog’s ability to detect in every instance the presence of controlled substances. Had he come forward with any indication of questionable reli-. ability, it would have been within the trial court’s discretion to grant the requested discovery. As in the case of an informer, where the denial of direct discovery of the informer does not deprive the defendant of a fair trial as long as there was verification or corroboration (People v Cerrato,
Notes
. In Chadwick, the police had been alerted that the defendants were possibly shipрing drugs. The facts indicate that the police used a trained dog to confirm their suspicions that drugs were in the footlocker. In deciding that the police were required to obtain a search warrant before opening the footlocker, the Supreme Court did not address thе implications of the dog’s sniff as a basis for establishing probable cause.
. The police in Buffalo had secured a warrant before opening and searching the suitcases.
. We are not unmindful of our holding in People v Smith (
Concurrence Opinion
(concurring). Though I concur in the result, I am unable to accept the majority’s reasoning. I would hold that defendant’s reasonable еxpectation of privacy in the closed interior space of his suitcase was invaded by the use of a trained dog to detect the presence there of a controlled substance. Use of such a dog does not enhance any of the handler’s five senses in the same way that a searchlight or binoculars directly enhances the vision of the human user. I, therefore, cannot accept the analogy drawn by the majority, and in any event regard the cases relied upon as open to question in view of People v Smith (
Order affirmed.