State v. Pellicci

BATCHELDER, J.,

dissenting: I agree with Justice Johnson and Chief Justice Brock that the canine sniff at issue here was a search within the meaning of part I, article 19 of the New Hampshire Constitution. Because I do not consider the dog sniff itself to fall within the limits of a Terry-type search, I write in dissent. I would hold that the search carried out through the use of the dog, like most other searches, required probable cause, and not merely a reasonable and articulable suspicion that the defendant was engaged in, or about to commit, some type of criminal activity involving controlled substances and that his vehicle contained illicit drugs.

*550 As the basis of their treatment of the canine sniff, Justice Johnson and the Chief Justice adopt the reasoning of Terry v. Ohio, 392 U.S. 1, 20-21 (1968). They would have the court espouse today, as State constitutional law, the position that a Terry-type investigation can be carried out to search for illicit drugs. I appreciate that in taking such a position they attempt to limit, under the State Constitution, the use of canine sniff investigations. I take issue, however, with the analysis upon which they rely in this case.

I recognize that an argument can be made that under United States v. Place, 462 U.S. 696, 706-07 (1983), a dog sniff such as the one here is not a search for the purposes of the fourth amendment to the Federal Constitution; however, I am also aware that this canine sniff would not meet the limits of a federal Terry analysis.

As Justice Johnson states, “[T]he very purpose of bringing the dog to the vehicle was to have it detect any contraband that might be hidden inside.” A canine trained to detect illicit drugs does not preliminarily question a suspect to allay or confirm its reasonable suspicion of criminality. It simply searches for evidence of crime. In this regard, use of a trained canine to detect drugs goes beyond the narrow confines of a Terry-type search.

Although the Terry balancing test has been applied to allow an officer to conduct, on the basis of less than probable cause, a warrantless seizure and pat-down search of a suspect for weapons, Terry, supra at 30 , and has been relied upon in support of further limited investigative seizures under the fourth amendment, see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) (investigative seizure of vehicle), I know of no decision of the United States Supreme Court that, under the reasoning of Terry , allows an officer to conduct a search for evidence based only upon a reasonable and articulable suspicion of criminal activity. See, e.g., Brignoni-Ponce, 422 U.S. at 881-82 (“The officer may question the driver and passengers about their citizenship and immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause.”). Terry itself anticipates and rejects the expansion of its reasoning to encompass Justice Johnson’s and Chief Justice Brock’s proposed search:

“We need not develop at length in this case . . . the limitations which the Fourth Amendment places upon a protective seizure and search for weapons .... Suffice it to note that such a search, unlike a search without a warrant incident to *551 a lawful arrest, is not justified by any need to prevent the disappearance or destruction of evidence of crime.”

Terry, supra at 29 .

Justice Johnson quotes United States v. Whitehead, 849 F.2d 849, 856 (4th Cir.), cert. denied, 109 S. Ct. 534 -35 (1988), to say that Terry’s reasoning has been expanded beyond the “stop and frisk” situation present in Terry , as support for his novel application of the Terry balancing test to the ease before us. However, the cases Whitehead relied upon for that statement all involved seizures under the fourth amendment rather than searches. See United States v. Sharpe, 470 U.S. 675, 673 (1985) (20-minute investigative detention of defendant); United States v. Place, 462 U.S. at 699 (temporary warrantless detention of luggage at public airport); Michigan v. Summers, 452 U.S. 692, 693 (1981) (seizure of person on outside steps of home); United States v. Brignoni-Ponce, 422 U.S. at 875 (roving border patrol stopping vehicle to question occupants).

Moreover, to the extent the Whitehead court itself applied a Terry balancing standard to uphold the canine sniff search it was concerned with, it is unclear to what degree it utilized Terry in examining the dog sniff per se, as opposed to other circumstances present in the case. In Whitehead , police officers brought trained narcotic-sniffing dogs into the defendant’s roomette on a train to sniff his luggage while he waited outside. Whitehead, supra at 853 . The court apparently relied upon Terry in concluding that the dog sniff did not require probable cause. Whitehead, supra at 856 . However, the court factored into the balance the limited expectation of privacy that Whitehead reasonably had in the roomette, as well as the level of intrusiveness of the dog sniff and the gravity of the law enforcement interest supporting the dog sniff. Whitehead, supra at 856 . To the extent the court considered Whitehead’s reasonable expectation of privacy in the roomette, it is unclear whether its holding under Terry applied to the canine sniff alone or to the officers’ entrance into the roomette under the circumstances present. Because Whitehead was based upon an expectation of privacy analysis which, as Justice Johnson and Justice Thayer acknowledge, we have neither adopted nor rejected under part I, article 19, and because its application of Terry to the dog sniff is unclear, Justice Johnson relies upon a slender reed indeed in applying his novel extension of Terry under the New Hampshire Constitution.

Even if, given the sui generis nature of a canine sniff, Terry did support such a search based upon merely a reasonable and articula *552 ble suspicion, the dog sniff in this case took place in such a context that it went beyond Terry’s intended minimal intrusion on fourth amendment rights. Cf. United States v. Place, 462 U.S. at 703 (“When the nature and extent of the detention are minimally intrusive of the individual’s fourth amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.”) (Emphasis added.). Here, although the police arguably had probable cause to obtain a warrant, Pellicci was stopped and ordered to remain in his car, while the dog sniffed the car’s exterior, on a public street. It is arguable that this activity subjected the defendant to the type of “embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.” United States v. Place, 462 U.S. at 707 . The application of Terry to a search and seizure as intrusive as that in this case would create an exception that would threaten to swallow the general rule that searches under part I, article 19 are “reasonable” only if based on probable cause. Cf. Dunaway v. New York, 442 U.S. 200, 213 (1979).

The canine sniff at issue here should be treated either as a search requiring probable cause, or not as a search at all, as it is so considered in the concurring opinion of Justice Thayer. I consider it a search requiring the full panoply of State constitutional protections for the following reasons. The New Hampshire Constitution is protective of those within its borders. Like the Federal Constitution, some of its guarantees of liberty are necessarily weighed against the competing societal interests of freedom from government intrusion, on the one hand, and the successful prosecution of those who commit crimes, on the other. In this delicate area of balancing such interests, it is tempting to equate the contemporary concepts of guaranteed freedom under the State Constitution with those of the Federal Constitution, as expressed in decisions of the United States Supreme Court. Such an approach, in my view, contains within itself a flaw. The million or so persons within New Hampshire’s borders at any given time are not necessarily a microcosm of the national population as a whole. To the extent that the framers contemplated a function by the States as laboratories for the nation, they recognized a distinction between the social fabric of a State and the larger social fabric of the nation. I believe that a strong argument can be made that the societal interests weighed by the United States Supreme Court in its interpretation of the Federal Constitution are not at all times concomitant with those considered by us at the State level.

*553 Interpretations of the Federal Constitution must be reflective of deep concerns for the protection of life and property at society’s fringes. The lowest common denominator of America’s social ills, for better or worse, has a role in constitutional interpretations. In decisions such as United States v. Place, 462 U.S. 696 , the Court was necessarily concerned with drug running in high-volume airports and indirectly by reference to the wholesale smuggling of aliens at the Mexican border, as well as with the potentiality for the delivery of bombs or explosive devices to departing flights at the nation’s airports. This is a different backdrop than the case at hand, in which Pellicci, albeit the target of an ongoing drug surveillance and investigation, was driving his car with a passenger in the early evening of an August day on a public street in Portsmouth. Holding that the canine sniff at issue here was a search within the meaning of part I, article 19, but, because of a novel extension of Terry-stop analysis, not one required to be based on probable cause, portends the first step into a constitutional thicket from which our extrication will be neither supportive of civil rights nor helpful to the difficult task of law enforcement.

The fourth amendment to the United States Constitution acts as a base line for an individual’s right to be free from unreasonable searches and seizures. However, we have continually interpreted part I, article 19 of the New Hampshire Constitution to provide greater protection. State v. Koppel, 127 N.H. 286, 289 , 499 A.2d 977, 979-80 (1985). In support of extending personal freedoms under State constitutions, it has been stated:

“When weighed against the ability to protect fundamental constitutional rights, the practical need of uniformity can seldom be a decisive factor. Thus; notwithstanding an interest in conforming our State Constitution’s restrictions on searches and seizures to those of the Federal Constitution where desirable, this court has adopted independent standards under the State Constitution when doing so best promotes ‘predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.’”

People v. P.J. Video, 68 N.Y.2d 296, 304-05 , 501 N.E.2d 556, 561-62 (1986), cert. denied, 479 U.S. 1091 (1987) (quoting People v. Johnson, 66 N.Y.2d 398, 407 , 488 N.E.2d 439, 445 (1985)) (further citations omitted). In light of the foregoing, I join Justice Johnson and the Chief Justice in finding that, in the circumstances of this ease, the *554 use of a canine to sniff the exterior of an automobile is a search within the meaning of part I, article 19 of the New Hampshire Constitution; however, I would require such a search to be based upon probable cause rather than mere reasonable suspicion.

Under part I, article 19, a warrantless search, such as the one here, is per se unreasonable, absent a recognized exception. State v. Settle, 122 N.H. 214, 218 , 447 A.2d 1284, 1286 (1982). As the Chief Justice notes in his concurring opinion, all recognized exceptions to the warrant requirement, apart from, of course, the Terry exception that has been adopted under the State Constitution, see State v. Brodeur, 126 N.H. 411, 415 , 493 A.2d 1134, 1137-38 (1985), are either supported by probable cause or justified as the result of an arrest based upon probable cause. The trial court did not make a finding as to probable cause warranting the use of the dog. Without that necessary finding, this search is unreasonable under part I, article 19.

Requiring probable cause for the dog sniff in this case does not obviate the conclusion that a dog sniff conducted under circumstances different from those present here might not fall within that type of conduct to which the protections of part I, article 19 apply. Cf. United States v. Place, 462 U.S. at 707 (canine sniff of luggage located in public airport is not a search under fourth amendment). More important, however, is the consideration voiced by Justices Stewart and Brennan in a discussion concerning the fourth amendment.

‘“In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts.’ We must not allow our zeal for effective law enforcement to blind us to the peril to our free society that lies in . . . [the] disregard of the protections afforded by the Fourth Amendment.”

Florida v. Royer, 460 U.S. 491, 513 (1983) (Brennan, J., concurring in result) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 455 (Stewart, J., plurality opinion), reh’g denied, 404 U.S. 874 (1971)) (citations omitted). This consideration is equally applicable to our discussion here of the protections provided by the New Hampshire Constitution. As the canine sniff was a search conducted in violation of part I, article 19,1 would suppress the evidence found during the subsequent search of the defendant, and I would reverse the conviction.