(concurring). Initially I agree with the other members of the panel that probable cause to issue the search warrant did not exist without the dog sniff (see, Sgro v United States, 287 US 206, 210; People v Edwards, 69 NY2d 814, 816). Though I concur that the conviction should be affirmed, I cannot accept the majority’s conclusion that the use by the police of a trained canine to sniff at the door of defendant’s residence for controlled substances is not a search within the meaning of the Fourth Amendment. Both the State and Federal Constitutions provide the "right of the people to be *90secure in their persons, houses, papers and effects, against unreasonable searches and seizures” (see, US Const 4th Amend; NY Const, art I, § 12). A search within the meaning of the Fourth Amendment "occurs when an expectation of privacy that society is prepared to consider reasonable is infringed” (United States v Jacobsen, 466 US 109, 113). Further, it is axiomatic that a person has a legitimate expectation that the contents of his or her home would remain private. Indeed, a heightened expectation of privacy is possessed by those in their homes based on " 'the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic’ ” (Oliver v United States, 466 US 170, 178, quoting Payton v New York, 445 US 573, 601).
Here, the police used a trained dog to obtain information concerning the contents of defendant’s apartment that they could not have obtained from the use of their own senses. In this regard, the police used a superior sensory instrument to penetrate and detect items within a closed dwelling which its owners would reasonably expect to remain private (see, e.g., Katz v United States, 389 US 347; Clinton v Virginia, 377 US 158).
Given defendant’s heightened expectation of privacy in his home, I conclude that the dog sniff constituted a search within the meaning of the Fourth Amendment (see, United States v Thomas, 757 F2d 1359, 1366-1368 [2d Cir], cert denied sub nom. Wheelings v United States, 474 US 819). To hold otherwise, I believe, would inevitably lead to the police using trained dogs to roam indiscriminately through the corridors of public housing projects or educational dormitories seeking the presence of controlled substances or to roam randomly at public gatherings alerting the police to persons carrying drugs (see, e.g., Horton v Goose Creek Ind. School Dist., 690 F2d 470, 479, cert denied 463 US 1207). I conclude that the authorization of such indiscriminate conduct would be considered by society to constitute an unreasonable infringement of its expectations of privacy and, therefore, constitutes a search within the meaning of the State and Federal Constitutions.
In my opinion, however, this does not end our inquiry. A dog sniff outside a dwelling is, as stated by Justice Denman, much less intrusive than a full-blown entry and search of a person’s home. In this regard, a dog sniff does not require entry into the premises or contact with the owner of the premises along with the embarrassment and inconvenience *91associated with a more intrusive search (see, United States v Beale, 736 F2d 1289, 1291-1292 [9th Cir], cert denied 469 US 1072). Given the minimally intrusive nature of a dog sniff search, I believe that it is reasonable within the meaning of the State and Federal Constitutions if the police conduct is based on the Terry v Ohio (392 US 1) standard of reasonable suspicion (see, United States v Place, 462 US 696, 723 [Black-mun, J., concurring in result]; People v Price, 54 NY2d 557, 565 [Meyer, J., concurring in result]).* In this regard, as the Terry "stop and frisk” permits a limited invasion of an individual’s rights in order to determine the presence of weapons and thereby protect the officer and the public, so also a dog sniff of a dwelling based on reasonable suspicion would permit a minimal intrusion of one’s rights in order to determine the presence of drugs and by their seizure protect society. Indeed, permitting a search on less than probable cause is not a radical concept. In New Jersey v T.L.O. (469 US 325, 340-341), the court stated: " 'probable cause’ is not an irreducible requirement of a valid search. The fundamental command of the Fourth Amendment is that searches and seizures be reasonable, and although 'both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search, ... in certain limited circumstances neither is required.’ Almeida-Sanchez v. United States, supra, at 277 (Powell, J., concurring). Thus, we have in a number of cases recognized the legality of searches and seizures based on suspicions that, although 'reasonable,’ do not rise to the level of probable cause. See, e.g., Terry v. Ohio, 392 U.S. 1 (1968); United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975); Delaware v. Prouse, 440 U.S. 648, 654-655 (1979); United States v. Martinez-Fuerte, 428 U.S. 543 (1976); cf. Camara v. Municipal Court, supra, at 534-539. Where a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not *92hesitated to adopt such a standard.” Here, the adoption of a reasonable suspicion standard would permit the use of this accurate investigatory tool which greatly supports the strong societal and governmental interest in conducting the ongoing war on drugs. Further to require, as does the dissent, probable cause before allowing a dog sniff of an individual’s dwelling would greatly curtail the use and advantages associated with this investigatory tool. Private interests are only slightly affected by the use of this minimally intrusive investigatory tool because it does not require contact with the dwelling owner or entry into the premises. Additionally, the use of trained dogs in this manner may be beneficial to law-abiding citizens. Indeed, a dog sniff, similar to the on-the-scene showup identification (see, People v Hicks, 68 NY2d 234, 242-244), provides the police with a quick and accurate determination of whether criminal activity is afoot without subjecting an individual to a lengthy police investigation of his activities. In this regard, it is much better that a dog sniff briefly at the exterior of a residence than that a surveillance team monitor an occupant’s every move in an effort to obtain probable cause to obtain a search warrant.
Balancing the competing interest, I conclude that the public is best served and its rights adequately protected by permitting the police while lawfully on the premises to conduct a dog sniff search of the exterior of a residence so long as it is supported by reasonable suspicion (see, United States v Place, supra, at 723; United States v Quinn, 815 F2d 153, 159 [1st Cir]; United States v Williams, 726 F2d 661, cert denied 467 US 1245).
I further conclude from my review of the record that the police had reasonable suspicion to authorize the dog sniff. In determining whether reasonable suspicion exists " 'the relevant inquiry is not whether particular conduct is "innocent” or "guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts’ ” (United States v Sokolow, 490 US —, —, 109 S Ct 1581, 1587, quoting Illinois v Gates, 462 US 213, 244, n 13, reh denied 463 US 1237). Here, the observations of Sergeant Gellart, along with defendant’s past involvement with controlled substances and the information from Jeffrey Osgood, defendant’s building’s maintenance man, although not rising to the level of probable cause, provided reasonable suspicion that defendant was engaging in criminal activities in his apartment to justify the dog sniff.
In footnote 2, the majority members state that the quantum of suspicion necessary before conducting a canine sniff of a residence is not before this court on this appeal. This begs the question. Implicit in the text of the footnote is the expressed belief that there must be some degree of suspicion in order to conduct such a search. The end result is that we both have reached the same conclusion, but approach the issue from opposite poles. The majority members conclude that a canine sniff of an individual’s residence is not a search; therefore, there can be no Fourth Amendment violation. But if there is no Fourth Amendment violation, what basis exists to limit the police conduct?