State v. Nguyen

• Decision Date: 26 December 2013
• Docket Number: No. 20130159.,20130159.
• Citation: 841 N.W.2d 676,2013 ND 252
• Parties: STATE of North Dakota, Plaintiff and Appellant v. Matthew D. NGUYEN, Defendant and Appellee.
• Court: North Dakota Supreme Court

841 N.W.2d 676

2013 ND 252

STATE of North Dakota, Plaintiff and Appellant

v.Matthew D. NGUYEN, Defendant and Appellee.

No. 20130159.

Supreme Court of North Dakota.

Dec. 26, 2013.

Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellant.

Mark Allan Friese, Fargo, ND, for defendant and appellee.

MARING, Justice.

[¶ 1] The State appeals from the trial court's order granting Matthew Nguyen's motion to suppress evidence found as a result of the search warrant in his criminal prosecution for possession of marijuana with intent to deliver and drug paraphernalia. We hold the law enforcement officer's use of a drug-sniffing dog in a secure apartment hallway did not violate Nguyen's Fourth Amendment rights against unreasonable search and seizure. We reverse and remand.

I

[¶ 2] The facts of this case do not appear to be in dispute. On November 8, 2012, law enforcement officers were dispatched to 2599 Villa Drive South, Fargo, North Dakota, after a tenant reported smelling marijuana on the second floor of the apartment building. The officers were unable to pinpoint the source of the odor so the building was added to a list of properties to be investigated further. On December 9, 2012, Officer Shane Aberle, of the narcotics division, and Officer George Vinson, of the canine unit, conducted further investigation. The officers were not in uniform and they brought Earl, a drug-sniffing dog.

[¶ 3] Access to the apartment building located at 2599 Villa Drive South is restricted. Both main entrances are locked at all times. The tenants are given keys, guests may gain access if a tenant electronically opens the door, and the fire department has been given access to a lockbox that contains a key. The tenants of the apartment building share secured, common hallways. In this shared space, personal property, such as shoes, bikes, and door craftwork, is present. Officer Aberle gained access by catching the door before it closed when an unidentified female was either entering or leaving. Officer Aberle and the unidentified female did not communicate. Officer Aberle signaled Officer Vinson and Earl, who were still in the vehicle, to join him. Officer Vinson planned to take Earl to the second floor hallway where the odor had earlier been reported. People were present in the second floor hallway; therefore, Officer Vinson took Earl to the third floor hallway and conducted a sweep that detected nothing. Officer Vinson then took Earl to the second floor hallway. Earl was quickly drawn to the door of unit 214 and alerted.

[¶ 4] The officers used this information to obtain a search warrant, which was executed on December 12, 2012. The officers seized approximately one-half pound of marijuana, paraphernalia including a snort tube, two digital scales, a grinder, two glass bongs, two glass pipes, and $2,433 in cash, which were all attributed to Nguyen. Nguyen made incriminating statements when questioned.

[¶ 5] On January 28, 2013, Nguyen was charged with possession of marijuana with intent to deliver and drug paraphernalia. Nguyen moved to suppress the evidence arguing the warrantless sweep of the apartment building that formed the basis for the search warrant constituted an illegal search. Nguyen alternatively argued suppression of the evidence was appropriate because the successive searches were constitutionally unreasonable. On April 29, 2013, an evidentiary hearing was held. The trial court granted the motion to suppress, and the State appeals.

II

[¶ 6] On appeal, the State asserts the trial court erred in granting Nguyen's motion to suppress. The State argues the use of a drug-sniffing dog in the common hallway of a secured apartment building did not constitute an illegal search under the federal or state constitutions.

[¶ 7] Our standard of review regarding a trial court's decision to grant or deny a motion to suppress is well established. State v. Morin, 2012 ND 75, ¶ 5, 815 N.W.2d 229.

“This Court defers to the district court's findings of fact and resolves conflicts in testimony in favor of affirmance. This Court will affirm a district court decision regarding a motion to suppress if there is sufficient competent evidence fairly capable of supporting the district court's findings, and the decision is not contrary to the manifest weight of the evidence. Questions of law are fully reviewable on appeal, and whether a finding of fact meets a legal standard is a question of law.”

Id. (quoting State v. Johnson, 2009 ND 167, ¶ 6, 772 N.W.2d 591). This Court reviews violations of constitutional rights de novo. State v. Jones, 2011 ND 234, ¶ 11, 817 N.W.2d 313.

[¶ 8] “The Fourth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment, and Article [I], Section 8 of the North Dakota Constitution, prohibit unreasonable searches and seizures.” State v. Dunn, 2002 ND 189, ¶ 4, 653 N.W.2d 688. Violations of the Fourth Amendment are not solely measured by property rights. Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (citing Soldal v. Cook County, 506 U.S. 56, 64, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992)). The Fourth Amendment also “protects individual privacy against certain kinds of governmental intrusion” but “cannot be translated into a general constitutional ‘right to privacy.’ ” Katz v. United States, 389 U.S. 347, 350, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). People, not places, are protected by the Fourth Amendment. Id. at 351, 88 S.Ct. 507. Yet, to determine what protections the Fourth Amendment offers people “requires reference to a ‘place.’ ” Id. at 361, 88 S.Ct. 507 (Harlan, J., concurring). “A search does not occur unless the government violates an individual's reasonable expectation of privacy.” State v. Mittleider, 2011 ND 242, ¶ 14, 809 N.W.2d 303. An individual's reasonable expectation of privacy has two requirements: “[F]irst that a person ha[s] exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Katz, at 361, 88 S.Ct. 507 (Harlan, J., concurring). “If an individual has a reasonable expectation of privacy in an area, the government must obtain a warrant prior to conducting a search unless an exception to the warrant requirement applies.” Mittleider, at ¶ 14.

[¶ 9] To determine whether a legitimate expectation of privacy exists, “the person challenging the search has the burden of showing both a subjective expectation of privacy and that the expectation is objectively reasonable; that is, one that society is willing to accept.” United States v. Mendoza, 281 F.3d 712, 715 (8th Cir.2002) (citation omitted). Several factors that contribute to determining whether a legitimate expectation of privacy exists include: “[W]hether the party has a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain the privacy; and whether the party had a key to the premises.” Id. The Eighth Circuit Court of Appeals has consistently held that tenants of multifamily dwellings do not have a legitimate expectation of privacy in common or shared areas. Id. (holding the defendant had no legitimate expectation of privacy in duplex vestibule); see United States v. McCaster, 193 F.3d 930 (8th Cir.1999) (holding the defendant had no legitimate expectation of privacy in a duplex hallway's closet); United States v. McGrane, 746 F.2d 632 (8th Cir.1984) (holding the defendant had no legitimate expectation of privacy in a basement storage locker in a multifamily dwelling, to which other residents had access); United States v. Luschen, 614 F.2d 1164 (8th Cir.1980) (holding the defendant had no legitimate expectation of privacy in a landing of a secure apartment building); United States v. Eisler, 567 F.2d 814 (8th Cir.1977) (holding the defendant had no legitimate expectation of privacy in a conversation that took place in a hallway of a secure apartment building). Other circuit courts of appeals agree. See United States v. Cruz Pagan, 537 F.2d 554 (1st Cir.1976) (holding the defendant had no legitimate expectation of privacy in parking garage of condominium); United States v. Holland, 755 F.2d 253 (2nd Cir.1985) (holding the defendant had no legitimate expectation of privacy in common hallway of secured apartment building); United States v. Acosta, 965 F.2d 1248 (3rd Cir.1992) (holding the defendant had no legitimate expectation of privacy in hallway of apartment building); United States v. Concepcion, 942 F.2d 1170 (7th Cir.1991) (holding the defendant had no legitimate expectation of privacy in common area of apartment building); United States v. Nohara, 3 F.3d 1239 (9th Cir.1993) (holding the defendant had no legitimate expectation of privacy in hallway of secured apartment building and refusing to extend United States v. Fluker, 543 F.2d 709 (9th Cir.1976)). The Sixth Circuit is currently the only circuit that recognizes a reasonable expectation of privacy in the hallway or common areas of a locked apartment building. See United States v. Carriger, 541 F.2d 545 (6th Cir.1976). “A number of other states have since adopted what now appears to be the majority position among the states which have considered the question.” State v. Talley, 307 S.W.3d 723, 732 (Tenn.2010) (holding the defendant had no legitimate expectation of privacy in hallway of secured condominium) (citing People v. Lyles, 332 Ill.App.3d 1, 265 Ill.Dec. 591, 772 N.E.2d 962 (2002) (holding the defendant had no legitimate expectation of privacy in back porch of apartment building); Commonwealth v. Dora, 57 Mass.App.Ct. 141, 781 N.E.2d 62 (2003) (holding the defendant had no legitimate expectation of privacy in hallway and lock of apartment door of secured apartment building); State v. Davis, 711 N.W.2d 841 (Minn.Ct.App.2006) (holding the defendant had no legitimate expectation of...