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People v. Devone - 2010 NY Slip Op 4828, 15 N.Y.3d 106, 905 N.Y.S.2d 101, 931 N.E.2d 70

Rule:

A canine sniff of the exterior of a lawfully stopped vehicle constitutes a search requiring founded suspicion that criminal activity is afoot.

Facts:

In two cases, defendants charged with drug possession violations challenged canine sniff searches of the exteriors of their lawfully stopped vehicles. In both cases, the Supreme Court of New York, Appellate Division, Third Department, concluded that the officers' "founded suspicion" that criminality was afoot provided sufficient grounds for the search. Defendants appealed.

Issue:

Did a canine sniff of the exterior of a lawfully stopped vehicle constitute a search under article I, § 12 of the New York State Constitution?

Answer:

Yes

Conclusion:

In both cases the state intermediate appellate court held that the officers' "founded suspicion" that criminality was afoot provided sufficient grounds for the search. The appellate court found that this was proper under N.Y. Const. art. I, § 12. There was a diminished expectation of privacy for individuals and their property when traveling in an auto, and law enforcement needed only founded suspicion that criminal activity was afoot before conducting a canine sniff of the exterior of a lawfully stopped auto. There was support in each case that police had a founded suspicion to conduct the canine sniff. In the first case, the driver's inability to produce his license and registration, his responses that his cousin owned the vehicle but that he did not know his cousin's name, and that defendant was his cousin—together with the fact that the vehicle was registered to a female and not defendant—gave the officer a founded suspicion that criminal activity was afoot. In the second case, the condition of defendant's vehicle, the unusual travel plans of defendant and his passenger, and defendant's "nervous" behavior, gave the officer a founded suspicion that criminal activity was afoot.

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