State v. Davis

• Decision Date: 11 April 2006
• Docket Number: No. A05-857.,A05-857.
• Citation: 711 N.W.2d 841
• Parties: STATE of Minnesota, Respondent, v. Scott Evan DAVIS, Appellant.
• Court: Minnesota Court of Appeals

711 N.W.2d 841

STATE of Minnesota, Respondent, v. Scott Evan DAVIS, Appellant.

No. A05-857.

Court of Appeals of Minnesota.

April 11, 2006.

COPYRIGHT MATERIAL OMITTED

Mike Hatch, Attorney General, St. Paul, MN; and James C. Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County Attorney, Hastings, MN, for respondent.

Derek A. Patrin, Meaney & Patrin, P.A., Hopkins, MN, for appellant.

Considered and decided by LANSING, Presiding Judge; SHUMAKER, Judge; and HALBROOKS, Judge.

OPINION

SHUMAKER, Judge.

After receiving complaints of odors of drugs from apartment-complex employees, law-enforcement officers performed a dog sniff in a common hallway of appellant's apartment. The dog alerted to the odor of illegal drugs. The officers then obtained and executed a search warrant and seized drugs and drug paraphernalia from appellant's apartment. The district court denied appellant's motion to suppress the evidence seized from the search. On appeal, appellant argues that the dog sniff was a search that required probable cause or, alternatively, that a reasonable, articulable suspicion did not exist. We affirm.

FACTS

In August 2004, employees of the apartment complex in which appellant Scott Evan Davis resided informed agents of the Dakota County Drug Task Force that they had observed activated growing lights in Davis's apartment and believed he was growing marijuana. They also stated that they had attempted to investigate a water leak inside Davis's apartment but that he did not permit them to enter. According to the search-warrant application, a drugsniffing dog was brought to the apartment complex to "investigate the odor of narcotics on the first floor" and alerted to the presence of illegal drugs at the "threshold of [Davis's] apartment." Based upon the observations of the apartment-complex employees and the dog's alert, agents were issued a no-knock search warrant. The agents executed the warrant on Davis's apartment using a key provided by apartment-complex management. The agents discovered and seized marijuana, drug paraphernalia, a mushroom-growing kit, and a handgun. Davis was arrested and charged with controlled-substance crimes for possession of marijuana and drug paraphernalia.

Davis brought a motion to suppress the evidence, alleging that it was obtained in violation of his federal and state constitutional rights. The district court denied Davis's motion and concluded that there was (1) a reasonable, articulable suspicion of illegal activity to support "using a drug-sniffing canine in the common hallway outside [Davis's] apartment" and (2) adequate probable cause, based on the dog sniff and the employees' observations of the growing lights, to support the issuance of a search warrant of his apartment. Davis then entered a not-guilty plea, submitted the matter to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn.1980), and was found guilty of controlled-substance crimes for possession of marijuana and drug paraphernalia. The district court imposed sentence, then stayed the sentence pending appeal, and Davis appealed the district court's denial of his motion to suppress the evidence.

ISSUES

1. Does use of a drug-sniffing dog in the common hallway of an apartment building constitute a search that requires probable cause under the federal and state constitutions?

2. If probable cause is not required, did a reasonable, articulable suspicion exist to conduct the dog sniff in the common hallway of the apartment building?

ANALYSIS

I.

Davis first argues that probable cause must exist before law enforcement can conduct a dog sniff "at [his] apartment door." The district court decided that the "more persuasive cases have found that a canine sniff of a common hallway in an apartment building has Fourth Amendment implications and must be supported by reasonable articulable suspicion." Davis bases his argument on the premise that a residence has a greater privacy protection against searches than a seized vehicle or a storage unit. He concludes that, because probable cause should be required, the warrantless dog sniff violated his federal and state constitutional rights, and the evidence seized as a result of the warrant should be suppressed.

When reviewing pretrial orders on motions to suppress evidence, appellate courts "independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence." State v. Harris, 590 N.W.2d 90, 98 (Minn.1999). Under the Fourth Amendment, whether a dog sniff is a search depends on (1) the level of a person's expectation of privacy in the place where the sniff occurs and (2) the level of intrusiveness of the sniff. State v. Carter, 697 N.W.2d 199, 207 (Minn.2005) (citing United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (holding that a dog sniff of the exterior of luggage in a public airport does not constitute a search under the Fourth Amendment)). The intrusiveness of a dog sniff is minimal because it does not require exposure of the contents of the item being searched or noncontraband items that would otherwise remain hidden from view. Place, 462 U.S. at 707, 103 S.Ct. at 2644-45. It is also "much less intrusive than a typical search . . . [because it] discloses only the presence or absence of narcotics, a contraband item." Id. See also Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (reaffirming Place's labeling of a dog sniff as "sui generis" and ruling that a "dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment").

The expectation-of-privacy element, however, has been subjected to fine line drawing. The United States Supreme Court has found diminished expectations of privacy in luggage in a public airport and in a barn that is outside of a home's "curtilage." See Place, 462 U.S. at 706-07, 103 S.Ct. at 2644; United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139, 94 L.Ed.2d 326 (1987). The Eighth Circuit Court of Appeals has concluded that a person does not have a "reasonable expectation of privacy in the hallway of [an] apartment building." United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977). "[C]ommon hallways . . . [are] available for the use of residents and their guests, the landlord and his agents, and others having legitimate reasons to be on the premises." Id. The Eisler court found irrelevant the fact that the building had secure entrances — the "locks on the doors to the entrances of the apartment complex were to provide security to the occupants, not privacy in common hallways." Id. See also United States v. McGrane, 746 F.2d 632, 634 (8th Cir.1984) (relying on Eisler and holding that a person has no expectation of privacy in a "common area . . . accessible to all tenants and the landlord" of an apartment building).

We conclude that a dog sniff in a common hallway is not a Fourth Amendment search. Davis does not have a reasonable expectation of privacy in the common hallway of the apartment building. The dog sniff's level of intrusiveness was minor. First, the search-warrant application refers to "the odor of narcotics on the first floor." This observation was made before any dog sniff and suggests that the odor of narcotics existed in the hallway and was detectable through a human being's sense of smell. Second, we disagree with Davis's characterization that the dog "detect[ed] the presence of illegal narcotics inside [Davis's] home." The evidence in the record shows that the dog sniffed only in the common hallway. The detected scent may have originated from within Davis's apartment, but it was detected outside the apartment by the dog.

Davis relies on United States v. Thomas, 757 F.2d 1359 (2d Cir.1985), to support his proposition that the dog sniff required probable cause. Thomas held that "because of [a defendant's] heightened expectation of privacy inside his [apartment], the canine sniff at his door constituted a search." Id. at 1367. We disagree with the reasoning of Thomas, a decision which has been widely discredited by several courts. See, e.g., United States v. Reed, 141 F.3d 644, 649-50 (6th Cir.1998) (noting that "Thomas seems to stand alone in its pronouncement that a canine sniff may constitute an unreasonable search" and "ignores the Supreme Court's determination in Place that a person has no legitimate privacy interest in the possession of contraband"); United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir.1993) (providing that Thomas "rests on an incorrect statement of the law"); United States v. Colyer, 878 F.2d 469, 475 (D.C.Cir.1989) (stating that the "correctness of the Thomas decision is called into question by its assertion that the defendant `had a legitimate expectation that the contents of his closed apartment would remain private'"); State v. Miller, 256 Wis.2d 80, 647 N.W.2d 348, 351 n. 5 (2002) (stating that Thomas is "questionable given Place's broad rationale").

But our analysis does not end with the Fourth Amendment. We must also determine whether the dog sniff was a search under the Minnesota Constitution.¹ The Minnesota Supreme Court has addressed dog sniffs on two recent occasions. It first ruled that a dog sniff of the exterior of an automobile legitimately stopped for a traffic offense is not a search requiring probable cause. State v. Wiegand, 645 N.W.2d 125, 133 (Minn.2002). The court noted that the privacy expectation surrounding an automobile is less than that of a home and that "an exterior sniff of an automobile does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics." Id. at 131 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000)). But the...