RESIDENTIAL SEARCHES

RESIDENTIAL SNIFFS:

Summary:

Sniffing of a residence from a public alley or from an area not contained within the curtilage of the residence is reasonable.

Residents do not have a reasonable expectation of privacy in any areas that the public has access to, such as walkways, hallways, driveways, etc.

Dog sniff outside locked door of residence bedroom rented by suspect is not a search, as long as officers obtain consent from a housemate to enter common areas of residence.

If you have a legal right to be where you are, so does your dog. Your dog may conduct a canine sniff of property.

One state, Florida, does not allow an exterior residence canine sniff, without a search warrant.

A) United States v Vasquez (909 F. 2d 235 (1990) Seventh Circuit

Use of a certified narcotics detection dog to sniff a garage from a public alley was not a search.

The garage directly abutted a public alley.

B) United States v Reed (141 F. 3d 644 (1998) Sixth Circuit

An exception allows police to enter a residence without a warrant if there is probable cause to believe there is a burglary in progress.

A canine sniff is not a search, although the canine team must lawfully be present at that location.

The canine team was lawfully present in residence pursuant to warrant exception for pursuit of burglar, and therefore any contraband sniffed by the canine fell within the “canine sniff” rule.

Even if the canine caused a dresser drawer to open when it scratched at the dresser alerting to contraband, the alert itself provided probable cause for a search warrant.

The fact the handler was able to view contraband in the opened drawer due to his canine’s actions, did not render the search illegal

C) United States v Tarazon-Silva (166 F. 3d 341 / 960 F. Supp. 1152 (1997) Fifth Circuit

These factors gave officers probable cause to search a residence:

• C.I.’s tip that he saw bundles in trunk of defendant’s car similar to packaged narcotics;
• agent’s seeing the car leave the residence and meet someone in a parking lot;
• then driving to various locations;
• narcotic detection dog’s alert to the odor of narcotics at dryer vent outside of residence.

Narcotic detection dog’s “sniff” of dryer vent outside defendant’s residence was not a search, where dryer vent was not included within enclosure surrounding home, and was located on driveway area outside of home that was readily accessible.

D) United States v Miravalles (280 F. 3d 1328 (2002) Eleventh Circuit

Where the lock on entrance to large, multiple-unit apartment building is not functioning, so that anyone may enter building, tenants of such a building do not have a reasonable expectation of privacy in common areas of building.

Tenants of an apartment do not have a reasonable expectation of privacy in common areas of building, including lobby, hallways, and other areas. Common areas were not only open to tenants and their visitors, landlord and its employees, and other workers and delivery people, but also to the public at large. There was nothing to prevent anyone and everyone who wanted to do so from walking in unlocked door and moving freely about premises.

E) United States v French (291 F. 3d 945 (2002) Seventh Circuit

It is not objectionable for an officer to come upon a part of private property opened for public common use. The officer may use the route, which any visitor to a residence would use, for the purpose of making a general inquiry or for some other legitimate reason.

A walkway connecting shed and lean-to on defendant’s property was not within curtilage of defendant’s home, so defendant was not entitled to Fourth Amendment protection for observations made from walkway. Although walkway was within 20’ of defendant’s home, he did not take steps to protect walkway area from public view, by enclosing it or shielding it from view.

F) United States v Carter (315 F. 3d 651 (2003) Sixth Circuit

The plain view exception to the warrant requirement applies when:
1) The law enforcement officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed;
2) The item is in plain view;
3) The incriminating character of the evidence is immediately apparent.

A warrantless entry into a home or motel room will be upheld when circumstances would lead a person of reasonable caution to conclude that the evidence of criminal activity would probably be destroyed within the time necessary to obtain a search warrant.

If, during an initial lawful intrusion into a person’s home, law enforcement officers plainly view incriminating evidence, it may be admitted into evidence pursuant to the plain view doctrine.

G) United States v Cavely (318 F. 3d 987 (2003) Tenth Circuit

The mere fact that officers who entered defendant’s residential property while serving an arrest warrant, went to the front and the back of defendant’s house, did not establish an invasion of the cartilage.

Officers, who arrested defendant outside the back door of his house, were justified in making a brief protective sweep of defendant’s house, and thus, cursory visual inspection of areas of the house where a person could be found was reasonable. Officers knocked at the front door several times and received no answer, defendant told officers there was another person in the house and officers had found firearms in the house on a prior search.

H) Smith v Texas (125 S. Ct. 1726 (2005) U.S. Supreme Court

The U.S. Supreme Court refused to hear this case on appeal from the State of Texas. By refusing to hear the case, the U.S. Supreme Court let the ruling from the Texas court stand:

Defendant’s privacy interests were not invaded when officer walked up the defendant’s driveway to allow drug dog to sniff defendant’s garage door, and thus drug dog sniff did not constitute improper search. Anyone approaching defendant’s house would have walked up the driveway and passed near the garage in order to reach the entrance of the house.

Drug dog did not represent an enhancement of officer’s senses. The drug dog sniff did not explore the details of the house but merely revealed the presence of contraband.

Record supporting finding that drug dog was well-trained, and thus dog sniff of the garage door did not constitute improper search. The dog was certified by a state canine association and the dog continued to be trained after certification.

Warrant to search defendant’s house was supported by probable cause when the drug dog alerted after sniffing the garage door.

I) United States v Brock (417 F. 3d 692 (2005) Seventh Circuit

Dog sniff outside locked door of residence bedroom rented by suspect did not constitute search within meaning of the Fourth Amendment. Police had obtained consent from suspect’s housemate to enter common areas of residence and sniff could only detect presence of contraband without providing any information about lawful activity within bedroom as to which suspect would have legitimate privacy expectation.

Third party with common authority over home may consent to search of home, obviating need for search warrant.

J) United States v Smith (459 F. 3d 1276 (2006) Eleventh Circuit

Search of premises and lockbox pursuant to warrant authorizing officers to search for and seize evidence of illicit drug activity was valid, and seizure of pornographic photographs of minor children was legitimately conducted pursuant to plain view doctrine. Warrant specifically authorized officers to seize “photographs that would be probative to establish residency.”

Officers, alerted to lockbox by narcotics dog, were justified in searching it for evidence of drugs or photographs, and it was immediately apparent to officers they had probable cause to believe that among what they found in lockbox, was evidence of crime of child pornography.

K) Florida v Rabb (127 S. Ct. 665 (2006) U.S. Supreme Court

The U.S. Supreme Court refused to hear this case on appeal from Florida. By refusing the hear the case, the U.S. Supreme Court let the ruling from the Florida court stand:

Search and seizure provision of (Florida) State Constitution does not prevent Florida District Court of Appeal from granting more protection than that provided in Fourth Amendment, in the absence of United States Supreme Court precedent directly on point to the contrary.

Dog sniff by trained drug-detection canine at exterior door of defendant’s home was an illegal search under Fourth Amendment. Dog’s sense of smell crossed the firm line of Fourth Amendment protection at door of home, and smell of marijuana detected by dog was an intimate detail of home.

NOTE: This case is not consistent with two other U.S. Supreme Court cases, Illinois v Caballes and Smith v Texas. As it stands today, Florida, particularly the 4th District Court of Appeals in Florida, is the only geographical area not allowing residential canine sniffs.

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