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State of New York

Court of Appeals

MEMORANDUM

This memorandum is uncorrected and subject to 

revision before publication in the New York Reports.

No. 84 SSM 17

The People &c.,

 Respondent,

 v.

Reginald Blandford,

 Appellant.

Submitted by Peter D. Salton, for appellant.

Submitted by William D. Vandelinder, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed. 

Defendant Reginald Blandford challenges the denial of his motion to suppress 

marihuana found during a traffic stop of his vehicle. In the course of a stop predicated on 
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the observation of traffic violations—the legality of which defendant does not contest 

before this Court (see generally People v Robinson, 97 NY2d 341, 349 [2001])—defendant 

consented to a search of the backseat of his vehicle. Instead of conducting that search, the 

police officer walked his canine around the exterior of the vehicle and, in mere seconds, 

the canine alerted to the trunk. Defendant argues that law enforcement lacked founded 

suspicion that criminal activity was afoot and, thus, unlawfully conducted the exterior 

canine sniff search.

A canine sniff search of a vehicle’s exterior is lawful if police possess a founded 

suspicion that criminal activity is afoot (see People v Devone, 15 NY3d 106, 110 [2010]). 

Determinations regarding the existence of a founded suspicion of criminality involve 

mixed questions of law and fact (see People v Mercado, 25 NY3d 936, 937 [2015]; see 

also People v Garcia, 20 NY3d 317, 324 [2012]). Therefore, our review is “limited to 

whether there is evidence in the record supporting the lower courts’ determinations” 

(People v McIntosh, 96 NY2d 521, 524 [2001]; see also People v Britt, 34 NY3d 607, 617 

[2019]). As pertinent here, “[t]his rule applies where the facts are disputed, where 

credibility is at issue or where reasonable minds may differ as to the inference to be drawn” 

(People v Howard, 22 NY3d 388, 403 [2013] [internal quotation marks and citation 

omitted]). 

Based on the evidence presented at the suppression hearing, including the officers’ 

observations prior to and during the stop, there is record support for the determination that 

a founded suspicion of criminal activity existed here and, thus, the issue is beyond further 

review (Mercado, 25 NY3d at 937; People v Martin, 19 NY3d 914, 916 [2012]; Devone, 
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15 NY3d at 113-114).1 Defendant’s remaining contentions, to which the dissent alludes, 

are unpreserved (see People v Gates, 31 NY3d 1028, 1029 [2018]).

1 Our reading of the facts differs from that of the dissent, and in any event, the dissent 

does not apply the proper standard of review.
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WILSON, J. (dissenting):

When people meet, they often shake hands. If more familiar, they may clasp hands 

and bring their bodies momentarily together, tapping each other on the back. Sometimes, 

people fully embrace, acknowledging their companionship before beginning a 

conversation or parting ways. Those common greetings are among the most basic and 
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bedrock forms of human interaction, more profound than words. They are how we greet 

each other, acknowledging our shared connections as acquaintances, friends, or family. 

On an ordinary November afternoon, outside the On the Way convenience store in 

Elmira, New York, Reginald Blandford greeted someone thusly. Instead of seeing his 

handshake or hug as greeting, however, two officers interpreted his actions as a drug sale.

They already suspected Mr. Blandford might be involved in drug sales, and they knew the 

On the Way store was in an area where drug sales occurred. 

A state trooper followed Mr. Blandford as he drove away. When he noticed that one 

of Mr. Blandford’s two rear license plate lamps was out, the trooper pulled Mr. Blandford 

over. The trooper then relied on Mr. Blandford’s behavior outside the On the Way store, 

along with other observations before and during the traffic stop, to determine he had the 

appropriate level of suspicion to detain Mr. Blandford while he brought a drug-detection 

dog to sniff the exterior of Mr. Blandford’s car. That canine sniff led to the discovery of 

marijuana in the car. Because both the New York and U.S. constitutions protect individuals 

from such intrusions on their reasonable expectations of privacy under these circumstances, 

I dissent. 

I.

Mr. Blandford caught the attention of law enforcement before the afternoon of his 

arrest. Investigator Backer “knew [Mr. Blandford] was involved in the illegal sale of 

narcotics” from “general police knowledge.” On the afternoon of Mr. Blandford’s arrest, 

Investigator Backer attempted to summon a state trooper to stop Mr. Blandford, whom 
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Investigator Backer believed was driving without wearing his seatbelt. No trooper arrived 

before Mr. Blandford parked at the On the Way convenience store, which Investigator 

Backer described as a “trouble spot in the city.” The Investigator radioed Trooper Shive, 

describing Mr. Blandford’s car, noting the alleged seat belt infraction, and telling Trooper 

Shive that he thought “there may be some criminal activity afoot” outside the On the Way 

store. Trooper Shive understood that to mean actions that might suggest potential “handto-hand dealing,” but that “could be just as simple as loitering.”

By the time Trooper Shive arrived, Mr. Blandford was inside the store. Several other 

people were outside the store. After a few minutes, Mr. Blandford emerged. As Mr. 

Blandford walked to his car, Investigator Backer observed him doing “a handshake, type 

hug thing” before entering the driver’s side of his car. Trooper Shive similarly observed 

“hand shakes, high fives, hugs, whatever,” along with the “exchanging of [unheard] 

verbiage.” Though the behavior “in and of itself” did “not necessarily mean[ ] anything,” 

Trooper Shive’s suspicion was aroused. 

Trooper Shive and Investigator Backer observed someone exit the store and sit in 

the front passenger seat of Mr. Blandford’s car. After Trooper Shive began following Mr. 

Blandford’s car, he noticed that one of its two license plate lamps was out, a violation of 

Vehicle and Traffic Law § 375 (2) (a) (4) under certain conditions. Trooper Shive activated 

his emergency lighting. According to Trooper Shive, Mr. Blandford then did a “slow roll 

response,” where his vehicle “didn’t immediately come to a stop.” While “the slow roll 

was going on,” Trooper Shive saw Mr. Blandford make “furtive movements” inside the 
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car, “ducking down in his seat, moving about within his seat, and at a point reaching over 

the passenger’s seat, doing something appearing to be down in the floorboard area and/or 

the backseat,” though he could not “see physically where [Mr. Blandford’s] final reach 

[was].” 

When Mr. Blandford stopped, Trooper Shive had him exit the car to conduct a 

roadside interview. Mr. Blandford explained that he was giving the person in his car, Mr. 

Gerdeep Singh, a ride home and that Mr. Singh’s family owned the On the Way store. Mr. 

Blandford also mentioned his wallet, money and going to the store to make purchases. 

Despite those innocuous responses, Trooper Shive felt that he and Mr. Blandford “kind of 

talked in a circle.” He recognized that giving Mr. Singh a ride home and going to the On 

the Way store to buy items were plausible explanations for why Mr. Blandford went to and 

exited the store. Nevertheless, Trooper Shive found it suspicious that Mr. Blandford said 

he went to the store to buy something but exited with no visible purchases. Based on the 

foregoing, Trooper Shive decided he had a “founded suspicion that criminal activity was

afoot” and asked Mr. Blandford for consent to search his vehicle. Mr. Blandford gave 

“mixed consent,” granting Trooper Shive permission to search the backseat area, his 

driver’s seat area, and part of the passenger compartment only—the very areas in which

Trooper Shive said he saw “furtive movements.” After receiving that consent, Trooper 

Shive looked into the car. The passenger compartment produced nothing of interest; he did 

see Mr. Blandford’s wallet in the rear. Finding no hint of criminality so far, Trooper Shive 

did not tell Mr. Blandford he was free to go. Instead, he retrieved his drug-detection dog 
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(“Clark,” an impressively beautiful and regal animal) and had the dog sniff the exterior of 

the car. The dog alerted to the trunk, leading the trunk to be opened. Once the trunk was 

opened, the dog alerted to a bag inside the trunk. Trooper Shive then conducted a 

warrantless search of the bag, in which he found marijuana. He released Mr. Singh and 

detained Mr. Blandford. 

Mr. Blandford was charged with one count of criminal possession of marijuana in 

the second degree, a violation of Penal Law § 221.25. He moved to suppress the marijuana, 

arguing that Trooper Shive did not have the proper level of suspicion to detain him to 

conduct the canine search of his car. After the court denied suppression, Mr. Blandford 

pleaded guilty to one count of attempted criminal possession of marijuana. He was 

sentenced to 1.5 years in prison, in a “shock incarceration” program, followed by two years 

of supervision. 

Mr. Blandford appealed. The Appellate Division, with one Justice dissenting, 

affirmed, holding that “taken together, the trooper’s observations of defendant . . . created 

a founded suspicion that criminal activity was afoot” and that Trooper Shive therefore 

“properly extended the stop beyond its initial justification” to “conduct[] the canine search” 

(People v Blandford, 190 AD3d 1033, 1037 [3d Dept 2021]).

II.

When Trooper Shive was asked why he stopped Mr. Blandford, he answered under 

oath: “I’m conducting a pretext stop.” Given his candor, I suspect Trooper Shive and 

Investigator Backer would not quarrel with the following summary of the record, which I 
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recite in the light most favorable to the prosecution. Without any real evidence, but just 

“general police knowledge,” the officers believed Mr. Blandford was selling marijuana. So 

they watched him. They were almost able to stop him for a seatbelt violation, but Trooper 

Shive and his dog did not arrive in time. When following him after he left the store, it was 

their good fortune that one of his two license plate lights was not illuminated, giving 

Trooper Shive a basis to stop him. In a further bit of luck, Mr. Blandford consented to let 

them search part of his car. In a bit of bad luck, that produced no results. But they ended 

up getting what they had wanted: the ability to have a drug detection dog sniff the car, the 

result of which gave them a reason to arrest Mr. Blandford and seize the evidence against 

him.

Of course, Mr. Blandford’s car was parked for a while, in plain view of Trooper 

Shive and Investigator Backer, outside the convenience store. The store was known as a 

trouble spot. A handshake or hug is sometimes used to convey drugs. Why couldn’t 

Trooper Shive have just walked up with his dog and had the dog sniff the car? Well, the 

Fourth Amendment would prohibit that. How about the handshake and hugs, the passenger, 

Mr. Blandford exiting the store with no purchases – all that happened before Mr. Blandford 

left the parking lot – why not just take a stroll by and let Clark get a good whiff? Sorry, the 

Fourth Amendment still would have prohibited that. Once Mr. Blandford’s car was moving 

again, the officers needed some basis to stop it. This time, one infers that Mr. Blandford 

was wearing his seatbelt, because the officers did not stop him on that basis and issued no 

citation for that infraction. Driving with one nonfunctioning license plate light bulb is a 
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traffic infraction, so Trooper Shive had a basis to stop the car to issue a citation. I think it 

fair to say, though, that Trooper Shive did not stop the car because he wanted Mr. Blandford 

to get a new lightbulb. 

Mr. Blandford’s case illustrates a troubling aspect of police behavior: law 

enforcement can pursue someone they suspect of criminal behavior without a founded 

suspicion of criminality, wait for the right moment to stop that person for a minor traffic 

infraction, and then serve up a stew of flavorless facts to transform a stop in which they 

have no intrinsic interest into the search they sought before they had any evidentiary basis 

to suspect wrongdoing. Although this case illustrates that problem, its resolution should be 

much simpler than resolution of the systemic problem: here, the officers did not possess 

information sufficient to justify the canine search. 

A. The traffic stop.

The police may stop a vehicle 30 minutes or later after sunset if one of its license 

plate lights is not working. Although one might question the cost/benefit calculus of 

permitting police stops on that basis, that is a legislative choice. However, it is worth noting 

that a minor change in factual findings would have rendered the stop unlawful. 

The first traffic infraction allegedly observed by law enforcement was Mr. 

Blandford driving without a seatbelt while Mr. Blandford was on his way to the 

convenience store. The Appellate Division upheld the denial of suppression in part because 

Trooper Shive “was entitled to rely upon [Investigator Backer’s] previous observation that 

[Mr. Blandford] was driving without a seatbelt – a separate traffic violation that also 
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provided probable cause for [Trooper Shive’s] stop” (Blandford, 190 AD3d at 1036

[internal citations omitted]). That analysis is incorrect. Although Trooper Shive could 

ordinarily rely on Investigator Backer’s information about the alleged seatbelt violation to 

pull Mr. Blandford over (People v Ramirez-Portoreal, 88 NY2d 99, 113 [1996]; People v 

Horowitz, 21 NY2d 55, 60 [1967]), Mr. Blandford parked and exited his car before Trooper 

Shive arrived. Once Mr. Blandford exited his car, entered and exited the store, and began 

driving anew, the prior seatbelt infraction cannot be used to justify a later stop. The 

Appellate Division’s rationale would allow officers to pull someone over hours or even 

days after they originally observed that person driving without a seatbelt or committing 

any other traffic infraction.

Trooper Shive may have understood what the Appellate Division did not – that he 

could not stop Mr. Blandford based on the prior seatbelt infraction. Accordingly, Trooper 

Shive followed Mr. Blandford in the hope of finding a new traffic infraction or some other 

basis to stop the car. New York’s Vehicle and Traffic Law states that motor vehicles,

excepting motorcycles, are required to have a white light illuminate their license plate for 

at least fifty feet from the rear of the car under certain conditions (VTL § 375 [2] [a] [4]). 

Those conditions include when the vehicle is driving on a public highway from one halfhour after sunset to one half-hour before sunrise, “or . . . at such other times as visibility 

for a distance of one thousand feet ahead of [the] motor vehicle is not clear” (id.).1 On the 

1 The plainest reading of the 1000-foot visibility provision is that it is meant to apply to 

situations where weather conditions – such as rain, fog or wind – impair forward visibility, 
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evening that Trooper Shive pulled Mr. Blandford over for his allegedly unilluminated 

license plate, a half-hour had not yet passed since sunset (Blandford, 190 AD3d at 1035). 

Nevertheless, the Appellate Division credited Trooper Shive’s testimony that “it was fully 

dark at the time of the stop,” on which basis the Appellate Division found that it was 

“‘objectively reasonable’ for the trooper to conclude that the requisite visibility did not 

exist and that a traffic violation had been committed” (internal citations omitted) (id.).2

Thus, the legality of this stop cannot be justified by the prior seatbelt infraction or 

by more than 30 minutes passing from sunset; it turns not on Trooper Shive’s testimony 

that forward visibility was less than 1000 feet, but on the Appellate Division’s conclusion 

that it was reasonable to believe that, if it was “fully dark,” visibility was less than 1000 

feet. 

I conclude from the above that the stop of Mr. Blandford was pretextual. But you 

needn’t believe me—Trooper Shive swore it was. The officers guessed correctly that Mr. 

Blandford possessed drugs; whether a seatbelt infraction or license plate bulb failure or 

some other flaw existed was irrelevant to the officers, so long as it provided a basis to stop 

his car. Pretextual, however, does not mean unlawful.

B. The canine search.

not by darkness outside of the times prescribed in the statute. However, Mr. Blandford has 

not advanced that interpretation of the statute, so I do not address it further.

2 For Elmira, NY, on November 17, 2017, total darkness began at 6:23 PM, or well over 

an hour from when Mr. Blandford was stopped (see http://suncalc.net/#/42.1055,-

76.8041,6/2017.11.17/08:09).
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Though the stop was lawful, the canine search for which Trooper Shive prolonged 

the stop violated Mr. Blandford’s constitutional rights under the New York and federal 

constitutions.

Under the New York Constitution, the level of suspicion required before law 

enforcement can conduct a canine search of the exterior of a lawfully stopped vehicle is a 

“founded suspicion that criminal activity is afoot” (People v Devone, 15 NY3d 106 [2010]). 

That level of suspicion is “level two” in a four-level framework this Court explicated for 

various police-civilian encounters (People v DeBour, 40 NY2d 210, 223 [1976]). The 

Appellate Division held that “taken together, the trooper’s observations of defendant

engaging in behaviors commonly seen in outdoor drug transactions at a location known for 

such activity, his ‘slow roll response’ and furtive movements after the trooper initiated the 

stop and his evasive, inconsistent answers to the trooper’s questions created a founded 

suspicion that criminal activity was afoot” (Blandford, 190 AD at 1036). For the Appellate 

Division, Trooper Shive therefore properly extended the stop beyond its initial justification 

to conduct the canine search (id.). Because determinations regarding the existence of a 

founded suspicion of criminality involve mixed questions of law and fact (see People v 

Mercado, 25 NY3d 936, 937 [2015]), our standard of review is “whether there is evidence 

in the record supporting the lower courts’ determinations” (People v McIntosh, 96 NY2d 

521, 524 [2001]). In affirming the Appellate Division, the majority holds that “[t]here is 

record support for the determination that a founded suspicion of criminal activity was 

afoot” justifying Trooper Shive’s canine search. I disagree. The facts relied upon by the 
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lower courts do not support a founded suspicion that Mr. Blandford was engaged in 

criminal activity.

First, Mr. Blandford’s handshake or hug to at least one person outside the 

convenience store does not support any suspicion of criminality. Notably, neither officer 

observed Mr. Blandford deliver or receive any contraband when they saw him greet at least 

one person outside the store; instead, each acknowledged that his conduct could have been 

completely innocent. Unless we are prepared to say that the police may detain anyone who 

hugs or shakes hands outside of a store known to the police to have been the site of drug 

transactions, those facts cannot be a basis for stopping Mr. Blandford. We should also keep 

in mind that such a rule would fall more harshly on communities of color and low-income 

communities: shaking hands as you enter Saks will likely not result in your detention. 

Because neither Trooper Shive nor Investigator Backer observed any exchange of 

contraband, it was improper for County Court to consider Mr. Blandford’s handshake or 

hug as a factor supporting its finding that there was a founded suspicion of criminality afoot 

justifying Trooper Shive’s canine sniff.

Second, contrary to the holding of the majority and the Appellate Division, the 

record does not support a finding that Mr. Blandford gave “inconsistent answers to the 

trooper’s questions” (Blandford, 190 AD3d at 1036). According to Trooper Shive, Mr. 

Blandford told him that he was giving Mr. Gerdeep Singh, his fellow passenger, a ride 

home and that Mr. Singh’s family owned the store. Nothing in the record suggests those 

statements were untrue. Mr. Blandford talked about his wallet and money, and he indicated 
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that he was in the store to buy items. The trooper observed his wallet in the car, which 

matches Mr. Blandford’s statement that his wallet was in the back of the car. Because 

Trooper Shive “didn’t observe anything that [Mr. Blandford] bought,” he claimed that he 

and Mr. Blandford “just kind of talked in a circle.” Again, nothing is inconsistent or 

suspicious about entering a store and leaving emptyhanded. Perhaps the store did not have 

what Mr. Blandford wanted; perhaps it cost too much; perhaps he got diverted by giving

Mr. Singh a ride home. Indeed, the statements made by Mr. Blandford are very different 

from the statements in Devone, where inconsistency contributed to a finding that a founded 

suspicion existed (15 NY3d at 113 [a driver told officers that his cousin owned the vehicle

but did not know his cousin’s name; then said that male passenger was his cousin though 

the vehicle was registered to a female]). Even if Mr. Blandford’s statements had been 

inconsistent, which they were not, discrepancies are not enough to give rise to a founded 

suspicion of criminality afoot (see People v Milaski, 62 NY2d 147, 156 [1984] 

[Defendant’s reasons for his presence in a parking area, along with his “nervousness and 

other inconsistencies in his statements, provided no indication of criminality”]; People v 

Dealmeida, 124 AD3d 1405, 1407 [4th Dept 2015] [Nervousness and “discrepancies in 

describing where (someone) was coming from and going are not enough” to meet the 

second level in the DeBour framework]). Mr. Blandford’s statements were not inconsistent, 

and the Appellate Division erred in factoring his statements into its ultimate finding that a 

founded suspicion of criminality afoot existed for Trooper Shive to conduct the canine 

search.
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What remains is Mr. Blandford’s “slow roll” while making “furtive movements.” 

Perhaps those observations would justify stopping Mr. Blandford, but that is not at issue 

here: he was stopped for a nonfunctioning license plate lightbulb. Trooper Shive concluded 

that the slow roll and furtive movements around the floorboards and back seat made him 

suspicious that criminal activity was afoot.3 The issue here is whether, at the time Trooper 

Shive determined to continue the stop and fetch his drug-sniffing dog, he had a reasonable 

suspicion that criminality was afoot. At that point, Mr. Blandford had consented to a search 

of the passenger section of his car. Trooper Shive found no contraband. He found Mr. 

Blandford’s wallet in the rear, which would explain the “furtive movements” and slow roll. 

He learned that Mr. Blandford was driving home someone related to the owner of the On 

the Way store. Those facts must also be taken into account in determining whether, at the 

time the trooper decided to prolong the stop and conduct a canine sniff, he had a founded 

suspicion that criminality was afoot. Whatever suspicions he might have had from the slow 

roll and furtive movements had proved unfounded. The officers can point to no fact 

whatsoever suggesting that drugs might have been squirreled away in an inaccessible part 

3 According to Trooper Shive, Mr. Blandford was “ducking down in his seat, moving about 

within his seat, and at a point reaching over the passenger’s seat, doing something, 

appearing to be down in the floorboard area and/or the backseat.” The trooper could not 

“see physically where [Mr. Blandford’s] final reach [was].” When searching the car on 

consent, the trooper saw Mr. Blandford’s wallet in rear. The slow roll and furtive 

movements could easily have been Mr. Blandford’s attempt to retrieve his license before 

he came to a stop. Additionally, the “slow roll stop” by Mr. Blandford is not of the sort that 

suggests criminality. The Appellate Division relied on People v Sanders (185 AD3d 1280 

[3d Dept 2020]), which involved a slow roll stop by a motorist stopped by Trooper Shive 

after the defendant “rapidly accelerated,” “squared the block” and cut through one-way 

markers in a parking lot before he “slow roll[ed]” for an entire city block before stopping 

(id. at 354). No such evidence appears in the record here. 
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of the passenger compartment or in the trunk. Instead, the facts as known to Trooper Shive 

after he conducted the search and spoke with Mr. Blandford unequivocally suggested that 

no criminal activity was afoot.

III.

Mr. Blandford also raises two arguments under the U.S. Constitution. First, he 

argues that Trooper Shive was not permitted to conduct the canine search under the federal 

constitutional standard, which Mr. Blandford argues requires reasonable suspicion, a 

higher threshold than “a founded suspicion of criminal activity afoot.” Second, Mr. 

Blandford argues that this Court’s application of the DeBour level two standard of 

suspicion to canine searches during traffic stops through Devone is therefore 

unconstitutional.

The majority concludes that Mr. Blandford failed to preserve those arguments. I 

disagree. In the suppression court, Mr. Blandford’s attorney argued that the canine search 

was improper under Rodriguez v United States (575 US 348 [2015]), which concerns the 

U.S. Constitution’s protections during traffic stops. Mr. Blandford again cited Rodriguez 

in his brief to the Appellate Division as presenting “another legal issue” raised by his case, 

arguing that “there is no authority” for police to conduct a canine sniff under the facts and 

proposition of the case (Brief of Appellant to the Appellate Division at 20). Thus, Mr. 

Blandford sufficiently argued below that the canine search was improper under the 

constitutional standard articulated in Rodriguez. In the suppression court, Mr. Blandford

does not appear to have argued explicitly that the DeBour and Devone standards are 
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unconstitutional. Nevertheless, the argument is necessarily raised by what he did say in the 

suppression court. By arguing that the canine search violated both New York and federal 

constitutional standards, which are higher, Mr. Blandford necessarily raised the question 

whether our state standard is preempted by the federal constitution and therefore 

unconstitutional. Although our state constitution can provide greater protections than the 

U.S. Constitution (People v Weaver, 12 NY3d 433, 445 [2009]; People v Scott, 79 NY2d 

474, 502-06 [1992]; People v Torres, 74 NY2d 244, 228 [1989]), it cannot provide less. 

Thus, Mr. Blandford’s argument that a judicial interpretation of our state constitution –

here, Devone’s holding that canine searches should be analyzed under level 2 of DeBour –

that permits canine searches where the U.S. Constitution would deem them unlawful, 

unmistakably means that he is challenging the constitutionality of Devone. In any event, 

the second issue is only semantically different from the first: if Mr. Blandford is correct 

that the canine search violates the U.S. Constitution, New York constitutional law cannot 

save the sniff.

In Rodriguez, the U.S. Supreme Court held that “a police stop exceeding the time 

needed to handle the matter for which the stop was made violates the [U.S.] Constitution’s 

shield against unreasonable seizures” (575 US at 350). The Court specifically held that a 

canine sniff conducted by an officer after a traffic stop was completed, without the owner’s 

permission, was improper (id. at 352). The Court noted that “[a]n officer may conduct 

certain unrelated checks during an otherwise lawful traffic stop” but “may not do so in a 

way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify 
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detaining an individual” (id. at 355). A canine search for drugs is not among the “ordinary 

inquiries incident to [the traffic] stop” (id., quoting Illinois v Caballes, 543 US 405, 408 

[2005]). Thus, “[t]he critical question . . . is not whether the dog sniff occurs before or after 

the officer issues a ticket . . . but whether conducting the sniff ‘prolongs’ – i.e., adds time 

to – ‘the stop’” (id. at 357 [internal citations omitted]). Because the officer in Rodriguez

prolonged the traffic stop to conduct the canine sniff, the Court held that there needed to 

be a “reasonable suspicion of criminal activity” to “justif[y] detaining Rodriguez beyond 

completion of the traffic infraction investigation” (id. at 358). Rodriguez thus stands for 

the proposition that, under the federal constitution, an officer must have “reasonable 

suspicion of criminal activity” to justify prolonging a traffic stop to conduct a canine search

of an automobile.

Determining whether Trooper Shive’s canine search passes muster under Rodriguez

involves two central questions: first, whether Trooper Shive prolonged the traffic stop to 

effectuate the canine search and second, if he did, whether he had a reasonable suspicion 

of criminal activity to justify it. There is no question that Trooper Shive prolonged the stop 

to conduct the canine search—he had to return to his vehicle to get the canine, with Mr. 

Blandford not free to leave in the interim. Indeed, the Appellate Division made a factual 

finding that the trooper “extended” the traffic stop “beyond its initial justification” to 

conduct the canine search (Blandford, 190 AD3d at 1036). 

Thus, the issue devolves to the second question: did the trooper have a reasonable 

suspicion to warrant a canine search? The “reasonable suspicion” standard is higher than 
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the “founded suspicion” standard under the New York Constitution (see DeBour, 40 NY2d 

at 223 [describing a four-tiered framework for levels of suspicion, with the second level of 

suspicion (required for police officers to make inquiries) as “a founded suspicion that 

criminal activity is afoot” and a third, higher level of suspicion (required for police officers 

to complete a forcible stop and detention) as a “reasonable suspicion that a particular 

person has committed or is about to commit a felony or misdemeanor”]; Devone, 15 NY3d 

at 110 [holding that the second DeBour level of suspicion applies to canine sniffs of cars 

during lawful traffic stops]). As discussed earlier, the record does not support a finding that 

there was a founded suspicion, and therefore it also cannot support a finding that there was 

a reasonable suspicion, which is a higher standard. 

Because the federal standard in Rodriguez requires a higher level of suspicion than 

does level 2 of DeBour, Devone, which was decided 5 years before Rodriguez, can no 

longer be good law. Whether articulated in that way or, instead, by saying that the canine 

search here was unlawful under the federal standard but not the New York standard does 

not have any practical importance. Regrettably, the majority concludes that neither way of 

phrasing the issue was properly preserved, which means that officers and civilians alike 

must live with uncertainty about the proper test to be applied to canine searches. I would 

point those in doubt to the Supremacy Clause and the incorporation of the Fourth 

Amendment through the Fourteenth.

IV.
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Mr. Blandford’s letter brief raises several policy considerations about police 

practices in communities of color, arguing that “[t]his case is about . . . how we as a society 

want to treat persons of color in their neighborhoods and when they step into cars.” He 

contends that existing laws, and their judicial interpretations, have led law enforcement 

officers to “stitch together disparate innocuous facts” to satisfy the founded suspicion 

standard they need to meet for certain intrusions. An objective reader of the facts would 

have to conclude that the officers here were not concerned that Mr. Blandford would be 

injured because he was not wearing a seatbelt, or that his license plate could not be read 

with only one working lightbulb. Rather, they suspected—for reasons we don’t know—

that he was dealing drugs. It is not reasonable to believe their suspicion was based on his 

hugs, his fruitless shopping at a convenience store or his giving a friend a ride. After 

searching his car and speaking with him, it could not have been based on a slow roll or 

furtive movements. It must have been based on something else—something they suspected 

well before that November afternoon. Because that “something else” is not in the record, 

we are left to wonder how benign or pernicious that suspicion may have been.

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, in a 

memorandum. Chief Judge DiFiore and Judges Garcia, Singas and Cannataro concur.

Judge Wilson dissents in an opinion, in which Judges Rivera and Fahey concur.

Decided October 14, 2021