Thus, even if we do not consider a canine sniff to be a search, evidence derived from a suspicionless sniff should be suppressed because it runs afoul of Terry’s requirement that the police action be “reasonably related in scope to the circumstances justifying the initial interference”, i.e. it impermissibly broadens the scope of the seizure of the person and their effects. Our state courts should also recognize the significance of the adversarial, embarrassing, and intimidating nature of a canine sniff. The adversarial nature alone justifies requiring reasonable suspicion. See State v. Davis, 104 N.J. 490, 504 (1986) (holding that “even if the initial stop is deemed constitutional, a further inquiry must be made to determine whether the subsequent scope of the seizure was justified by the least intrusive investigative techniques reasonably available to verify or dispel his suspicion in the shortest period of time.”) The degree of fear and humiliation engendered by the canine sniff also justifies requiring reasonable suspicion. See Davis, at 478-479. Justice Ginsburg responded to the majority’s focus on there being no legitimate expectation of privacy in concealed contraband: “Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty. Under today’s decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population.” Caballes, 53 U.S. at 422. Justice Ginsburg wrote that the Caballes majority:
clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots. Compare, e.g., United States v. Ludwig, 10 F. 3d 1523, 1526-1527 (CA10 1993) (upholding a search based on a canine drug sniff of a parked car in a motel parking lot conducted without particular suspicion), with United States v. Quinn, 815 F. 2d 153, 159 (CA1 1987) (officers must have reasonable suspicion that a car contains narcotics at the moment a dog sniff is performed), and Place, 462 U.S., at 706-707 (Fourth Amendment not violated by a dog sniff of a piece of luggage that was seized, pre-sniff, based on suspicion of drugs). Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn.
Caballes, at 423 (emphasis added).