The police often rely on trained narcotics-detection dogs to alert for drugs. How far the police can use those dogs under the Fourth Amendment has led to a lot of cases. Today the New York Court of Appeals added an interesting one on an important question: Is a dog sniff of a person in a public area a Fourth Amendment search?
First, some context. The Supreme Court has held that a dog sniff in a public area is not a search. It reached that ruling in cases that happened to involve a sniff of luggage and a sniff around a car. When confronted with a dog sniff on a home front porch, however, the Court ruled that the entry of the dog on to the porch was a search because it went beyond the implied license of the area around the home, the so-called curtilage. The "search" was the entry of the dog within the private area of the curtilage with intent to do a sniff, not the sniff itself.
So what about a dog sniff of a person in a public area? The curtilage concept has only been applied to homes, not people. Does that mean dogs can sniff a person? It's clear that a dog sniff is a search if the dog actually touches the person. But what if the dog just comes close to the person, without touching them? Is that a search?
