U.S. v. Ludwig, No. 93-2084

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: STEPHEN H. ANDERSON
• Citation: 10 F.3d 1523
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Keith Rudolph LUDWIG, Defendant-Appellee. National Association of Criminal Defense Lawyers, Amicus Curiae.
• Docket Number: No. 93-2084
• Decision Date: 01 December 1993

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10 F.3d 1523 62 USLW 2403 UNITED STATES of America, Plaintiff-Appellant,
v.
Keith Rudolph LUDWIG, Defendant-Appellee.
National Association of Criminal Defense Lawyers, Amicus Curiae. No. 93-2084. United States Court of Appeals,
Tenth Circuit. Dec. 1, 1993.
Rehearing Denied Feb. 2, 1994.

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David Williams, Asst. U.S. Atty. (Don J. Svet, U.S. Atty., and Stephen R. Kotz, Asst. U.S. Atty., on the brief), Albuquerque, NM, for plaintiff-appellant.

Charles A. Harwood (James B. Foy, on the brief), Foy, Foy & Castillo, P.C., Silver City, NM, for defendant-appellee.

Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Albuquerque, NM, for amicus curiae.

Before MOORE, FEINBERG, ^* and ANDERSON, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The United States appeals the denial of its motion to reconsider the district court's suppression order. The government argues that the challenged dog sniff of Keith Ludwig's car was not a search under the Fourth Amendment, and that no warrant was required to search the car after the dog alerted. We agree and reverse.

BACKGROUND

At about 11:15 p.m. on December 12, 1992, Joel Nickles, a Border Patrol agent at the permanent checkpoint near Truth or Consequences, New Mexico, walked a trained narcotics dog through the parking lot of the nearby Super 8 Motel to see if the dog would find any contraband. R. Vol. II at 5-6, 16. Less than a week earlier the motel manager had given the Border Patrol permission to walk dogs through the motel parking lot for this purpose. R. Vol. II at 40-41.

As Nickles and the dog were walking through the lot, the dog pulled Nickles over to Keith Ludwig's Chevrolet Impala and alerted to the trunk, indicating that illegal drugs were in the trunk. R. Vol. II at 7. Around half an hour later Border Patrol agents began surveillance of the car, which continued through the night until Ludwig first approached his car the next morning at 10:00 a.m.

Agent Phillip Sanchez, who had been surveilling the car, approached Ludwig five minutes later and identified himself. Ludwig acknowledged that the car was his, but denied the agent's requests to inspect the car and look in the trunk. Sanchez then directed Nickles to have the dog sniff the car again, and the dog again alerted to the trunk.

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When Ludwig refused to open the trunk, Sanchez took the keys from the ignition, opened the trunk, and found several large bags containing marijuana. R. Vol. II at 32-33.

Ludwig was indicted for possession with intent to distribute less than fifty kilograms of marijuana in violation of 21 U.S.C. Sec. 841(a)(1) and (b)(1)(D). After pleading not guilty, Ludwig moved to suppress all the evidence seized by the Border Patrol agents. The district court held an evidentiary hearing but did not hear Ludwig's evidence, granting the motion after the government's evidence on the grounds that the agents should have sought a search warrant because there were no exigent circumstances. R. Vol. II at 44-45. The court subsequently denied the government's motion to reconsider, from which the government appeals.

DISCUSSION

I. Search of Parking Lot

Nickles' entry into the motel parking lot with the dog was a search under the Fourth Amendment if it intruded on a legitimate expectation of privacy. See Rakas v. Illinois, 439 U.S. 128, 143 & n. 12, 99 S.Ct. 421, 430 & n. 12, 58 L.Ed.2d 387 (1978); United States v. Reed, 733 F.2d 492, 501 (8th Cir.1984) ("Whether a police officer has commenced a 'search' turns not on his subjective intent to conduct a search and seizure, but rather whether he has in fact invaded an area [in] which the defendant harbors a reasonable expectation of privacy."). Ludwig "bears the burden of proving not only that the search ... was illegal, but also that he had a legitimate expectation of privacy [in the parking lot]." Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Ludwig has not proven that he or even the motel owner had a legitimate expectation of privacy in the lot. As the surveillance from across the street indicates, the parking lot was open and visible from the public roads bordering it. Ludwig has produced no evidence that the lot was fenced, that a gate prevented unauthorized entry, or even that signs restricted entry to the parking lot. Neither the owner nor a guest could reasonably expect that such a parking lot would be private. See, e.g., Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."); United States v. Dunkel, 900 F.2d 105, 107 (7th Cir.1990) (explaining that even though parking lot was curtilage of private office, defendant did not have legitimate expectation of privacy in parking lot that was open to invitees of eight tenants and was not fenced), vacated on other grounds, 498 U.S. 1043, 111 S.Ct. 747, 112 L.Ed.2d 768 (1991); United States v. Reed, 733 F.2d at 501 (holding that police officer's initial entry into business parking lot was not a search where lot was bound on three sides by public streets and visible from streets on two sides, fenced gate was completely open to public street, and there was no indication that lot was private to owners and those specifically authorized); United States v. Edmonds, 611 F.2d 1386, 1388 (5th Cir.1980) (finding no legitimate privacy expectation in business loading dock and parking lot). The entry into the parking lot therefore was not a search.

Ludwig suggests that he had a separate privacy interest in some portion of the parking lot that he rented along with his room for the night. Even if Ludwig did rent a parking space with his room, he would have no more expectation of privacy in a particular parking space than he or the motel owner had in the lot generally. His parking space was open to the street just as the rest of the lot was, as well as open and visible from the rest of the parking lot where the agents entered lawfully with the motel manager's consent. See United States v. Burns, 624 F.2d 95, 100 (10th Cir.) ("Nor is it a search when a law enforcement officer makes visual observations from a vantage point he rightfully occupies. This applies also to perceptions derived from hearing or smelling."), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980).

II. Dog Sniff

Ludwig also suggests that the dog sniffs of his car were unreasonable searches

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because the agents had no reason to suspect that there were drugs in his car....