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Court Swivels on Police Use of Drug Dogs

Wednesday, September 13, 2017  
Posted by: Laura Fenstermaker
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From Minnesota Lawyer

Departing from its own precedent, the Court of Appeals has held that the warrantless use of drug-detecting dog at an apartment door within a secured building was unlawful, requiring reversal of a conviction for the possession of controlled substances and firearms.

The use of the dog implicated a legitimate expectation of privacy that required a search warrant, the court said in State v. Edstrom, written by Judge Roger Klaphake.

It distinguished its decision last year in State v. Luhm where the court said the door area of a condominium unit in a secure building was not curtilage.

Confidential informant

Based on a confidential informant’s tip, Hopkins police went to an apartment building and obtained a list of every resident on the third floor, which was where the informant said the defendant lived.  They found the name of a person who lived on the third floor that the defendant had listed as an emergency contact when in custody for an unrelated matter.

Police gained entry to the secured building with a narcotics-detection dog, which provided a positive alert at the door of the apartment in question.

Based on that information, police obtained a nighttime, unannounced search warrant and recovered 226.65 grams of meth along with weapons and ammunition. They arrested the defendant and charged him with first-degree sale, first-degree possession and possession of a firearm by an unauthorized person. He was convicted of the latter two offenses after the District Court denied his motion to suppress because the warrantless search by the dog at the apartment door was unconstitutional.

Curtilage

The area immediately surrounding and associated with the home — the curtilage — is part of the home itself for search-and-seizure purposes. The question is whether the area in question is so intimately tied to the home itself that it should be placed under the home’s umbrella of Fourth Amendment protection, the court said, quoting the U.S. Supreme Court in U.S. v. Dunn, a 1987 case. The curtilage definition was applied to a front porch in Florida v. Jardines in 2013 by the U.S. Supreme Court.

But in Minnesota in State v. Luhm in 2016 the Court of Appeals said that the area immediately outside the resident’s door in a secured, multi-unit condominium was not curtilage because it was not enclosed and was visible to anyone who walked by. The court found no compelling reason to overrule Luhm.

Privacy

But that did not end the matter. The court turned to the legitimate expectation of privacy in the front door of the apartment. It observed that Justice Elena Kagan’s concurrence in Jardines, which reasoned that the warrantless use of a narcotics-detection dog also violated privacy rights, provided guidance on a post-Jardines privacy rights challenge.

The dog provided information that could not have been obtained without physical intrusion into a constitutionally protected area, the Court of Appeals noted. That warrantless intrusion into the apartment violated the defendant’s legitimate expectation of privacy, the court said.

The court rejected the state’s argument that the defendant could not have a legitimate expectation of privacy in contraband.

Minnesota Constitution

The court also said that, consistent with Minnesota’s history of providing greater protection to its citizens, Article I, Section 10 of the Minnesota Constitution protects people from the warrantless use of a narcotics-detection dog at an apartment door inside a secured building.

It then concluded that the police officers’ corroboration of the confidential informant’s information was insufficient to support a probable cause finding to use the dog to search at the apartment door. Therefore, the dog’s positive alert was necessarily suppressed, as was the evidence from the execution of the search warrant.


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