People v. Jones

• Decision Date: 20 May 2008
• Docket Number: Docket No. 275438.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jeffrey Juann JONES, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

755 N.W.2d 224

279 Mich. App. 86

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jeffrey Juann JONES, Defendant-Appellee.

Docket No. 275438.

Court of Appeals of Michigan.

Submitted February 6, 2008, at Detroit.

Decided May 20, 2008, at 9:00 a.m.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Kym Worthy, Prosecuting Attorney, and Timothy A. Baughman, Chief of Research, Training, and Appeals, for the people.

Muawad & Muawad, P.C. (by Elias Muawad), Bloomfield Hills, for the defendant.

Before: FITZGERALD, P.J., and MURPHY and BORRELLO, JJ.

FITZGERALD, P.J.

The prosecution appeals as of right from an order granting defendant's motion to suppress evidence and dismissing the charges against him. We reverse and remand.

I

The police received information from an informant regarding defendant's alleged possession and sale of marijuana. The informant indicated that defendant had been arrested several times in the past for possessing illegal narcotics, that defendant kept a small amount of marijuana for personal use at his 24975 South Sylbert residence in Redford Township, and that defendant kept larger amounts of illegal narcotics at his 15888 Southfield Road residence in Detroit. A Law Enforcement Information Network (LEIN) check revealed that defendant had a misdemeanor conviction for possession of marijuana and two felony convictions for delivery/manufacture of a controlled substance. Prompted by this information, the police arranged to have a trained narcotics-detection dog brought to the defendant's Southfield residence so that a canine sniff could be conducted. The dog gave a positive indication for narcotics at the front door of the residence. On the basis of the dog's reaction, as well as their prior information the police obtained a search warrant to search both premises.

Defendant was charged in lower-court Docket Number 011698 as a fourth-offense, habitual offender, MCL 769.12, with possession of a firearm by a felon (felon-in-possession), MCL 750.224f, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, as the result of a search of the South Sylbert premises. Defendant was charged in lower-court Docket Number 012320 as a fourth-offense habitual offender, MCL 769.12, with the manufacture of 5 to 45 kilograms of marijuana, MCL 333.7401(2)(d)(ii), felon-in possession, MCL 750.224f, possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii), and felony-firearm, MCL 750.227b, as a result of a search of the Southfield Road premises.

Defendant moved to suppress all the items of evidence that had been seized during the two searches. Defendant argued that the canine sniff outside his front door, which alerted the officers to the presence of a controlled substance inside his house, was an illegal search. In support of his argument, defendant relied on State v. Rabb, 920 So.2d 1175 (Fla.App., 2006) (a canine sniff from outside a home to detect narcotics inside the home uses extra-sensory procedure that violates the firm line at the door of the home protected from intrusion by the Fourth Amendment).¹ The prosecution relied on Illinois v. Caballes, 543 U.S. 405, 408-409, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005), in arguing that the canine sniff was not a search at all because the police were lawfully present at the front door of defendant's residence and defendant possessed no reasonable expectation that his drugs would go undetected. Following a hearing on the motion, the trial court granted defendant's motion to suppress. In support of its decision, the trial court relied on Kyllo v. United States, 533 U.S. 27, 29, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). In Kyllo, the Court held that the use of a thermal-imaging device to detect relative amounts of heat within a private home was a Fourth Amendment search and must be supported by probable cause and a warrant. The Kyllo Court held that where the government uses "a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a `search' and is presumptively unreasonable without a warrant." Id. at 40, 121 S.Ct. 2038. In the present case, the trial court found that a canine sniff is akin to the use of a thermal-imaging device. The trial court concluded that the canine sniff is a search that must be supported by probable cause and a warrant.

II

The sole issue on appeal is whether the trial court properly suppressed the evidence against defendant on the ground that the canine sniff, which provided the probable cause for the issuance of the search warrant, was obtained in violation of the rights guaranteed by the Fourth Amendment of the United States Constitution.² Resolution of this issue requires a determination whether the canine sniff of the front door of defendant's residence is a search under the Fourth Amendment. We review a trial court's factual findings at a suppression hearing for clear error, but review de novo the ultimate ruling on a motion to suppress. People v. Davis, 250 Mich.App. 357, 362, 649 N.W.2d 94 (2002).

Both the United States Constitution and the Michigan Constitution guarantee the right against unreasonable searches and seizures. U.S. Const., Am. IV; Const. 1963, art. 1, § 11; see Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001). The Michigan Constitution in this regard is generally construed to provide the same protection as the Fourth Amendment of the United States Constitution. People v. Levine, 461 Mich. 172, 178, 600 N.W.2d 622 (1999). 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 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

The United States Supreme Court has held that a "canine sniff" does not unreasonably intrude upon a person's reasonable expectation of privacy. See United States v. Place, 462 U.S. 696, 706-707, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In Place, the Court held that a canine sniff of a traveler's luggage in an airport was not a search within the meaning of the Fourth Amendment because the information obtained through this investigative technique revealed only the presence of absence of narcotics. As the Court explained:

[T]he canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. [Id. at 707, 103 S.Ct. 2637.]

The Supreme Court reaffirmed the Place Court's holding in Jacobsen, supra. In Jacobsen, supra at 123, 104 S.Ct. 1652, the Court held that a chemical field test of a white substance found inside a package was not a Fourth Amendment search because the test "merely discloses whether or not a particular substance is cocaine. ..." Because there is no legitimate interest in possessing cocaine, the field test did not compromise any legitimate privacy interest. Id. The Court further explained that "the reason [the Place canine sniff] did not intrude upon any legitimate privacy interest was that the governmental conduct could reveal nothing about noncontraband items." Id. at 124 n. 24, 104 S.Ct. 1652 (emphasis in original).

The Supreme Court later held in Caballes, supra at 407-408, 125 S.Ct. 834, that a canine sniff of a vehicle during a traffic stop, conducted absent reasonable suspicion of illegal drug activity, did not violate the Fourth Amendment because it did not implicate any legitimate privacy interest. The Court explained that, because there is no legitimate interest in possessing contraband, the use of a well-trained narcotics dog that "only reveals the possession of contraband `compromises no legitimate privacy interest'" and does not violate the Fourth Amendment. Id. at 408, 125 S.Ct. 834 (quoting Jacobsen, supra at 123, 104 S.Ct. 1652). The Court also noted:

This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States, 533 U.S. 27, [121 S.Ct. 2038, 150 L.Ed.2d 94] (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity-in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." Id., at 38, 121 S.Ct. 2038. The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. [Caballes, supra at 409-410, 125 S.Ct. 834.]

The majority of the federal circuit courts have viewed the Place Court's holding as a general categorization of canine sniffs as nonsearches. See, e.g., United States v. Reed, 141 F.3d 644, 648 (C.A.6, 1998) (holding that a canine sniff of the inside of an apartment was not a search when the canine team was lawfully present in the building); see also United States v. Roby, 122 F.3d 1120 (C.A.8, 1997); United States v. Brock, 417 F.3d 692 (C.A.7, 2005); United States v. Vasquez, 909 F.2d 235 (C.A.7, 1990).³ Similarly, the vast majority of state courts considering canine sniffs have recognized that a canine sniff is not a Fourth Amendment search.⁴ Binding and persuasive authority convinces us that a canine sniff is not a search within the meaning of the Fourth Amendment as long as the sniffing canine is legally present at its vantage point when its sense is aroused. Reed, supra at 649; see also Place, supra at 709, 103 S.Ct. 2637 (noting that the sniffed luggage was located in a public place), and United States v. Diaz, 25 F.3d 392, 397 (C.A.6, 1994).

The trial court rejected the holding in Place on the ground that an individual...