U.S. v. Venema

• Decision Date: 13 October 1977
• Docket Number: No. 76-1442,76-1442
• Citation: 563 F.2d 1003
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rockne P. VENEMA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1003

563 F.2d 1003

UNITED STATES of America, Plaintiff-Appellee, v. Rockne P. VENEMA, Defendant-Appellant.

No. 76-1442.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 17, 1977.

Decided Oct. 13, 1977.

Don Svet, Albuquerque, N.M. (Victor R. Ortega, U.S. Atty., Albuquerque, N.M. and C. Richard Baker, Asst. U.S. Atty., Santa Fe, N.M., on the brief), for plaintiff-appellee.

Robert T. Knott, Albuquerque, N.M. (Knott & Associates, Albuquerque, N.M., on the brief), for defendant-appellant.

Before SETH, PICKETT, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

The overriding question in this appeal is whether the use by the police of a cannabis sniffing canine, named Chane, violated the defendant's Fourth Amendment rights. We conclude that such use did not offend the Constitution.

Rockne Venema, the defendant, first came to the attention of local New Mexico drug agents on January 27, 1976. Venema was then residing at 1968 Otowi Drive in Santa Fe, New Mexico. The local drug agents in the preceding October had arrested, and convicted another resident living at that same address for possession of marijuana. As a result of the October 1975 arrest, the local drug agents continued to keep an eye on the Otowi Drive residence.

On January 27, 1976, the agents noticed the defendant leave the Otowi Drive residence and drive in a 1974 GMC pickup, which bore a heavy coating of mud, to the Poco Storage Company in Santa Fe. The defendant took what appeared to be an empty box from his truck, and entered the building in which storage lockers were located. According to the agents, the defendant then unlocked the door to locker number 32, entered the locker, and closed the door behind him. After remaining in the locker for about five minutes, the defendant exited the locker, carrying the same box which he had brought with him. Agents testified that from the defendant's actions, the box now appeared to be much heavier. The defendant then returned to his truck. There he was observed placing the box into a utility bin behind the cab of his pickup. After locking the bin, the defendant then drove away from the Poco Storage Company and, after making one stop, returned to his home.

On the morning of the following day, January 28, 1976, the local agents returned to the Poco Storage Company with a dog trained and certified to detect the presence of either marijuana or heroin. The agents received permission of the owner of Poco Storage Company to bring the dog on the premises. The agents allowed Chane to work the side of the building where defendant's locker was located, and on three occasions Chane "alerted" in front of locker number 32. By "alerting," according to the dog's handler, the dog changes direction and paws when he smells either marijuana or heroin. The fact that Chane alerted in front of locker number 32 indicated to the handler that the locker contained either marijuana or heroin, or both, or that such substances had very recently been in the locker.

Later on January 28, 1976, the drug agents, on affidavit before a state district court judge, obtained three search warrants, one authorizing a search of defendant's locker at the Poco Storage Company, a second authorizing a search of defendant's pickup truck, and the third authorizing a search of defendant's place of residence.

On the evening of January 28, 1976, the agents searched the defendant's locker at the Poco Storage Company, and the search revealed a considerable quantity of LSD, marijuana, and hashish. The LSD seized in this search formed the basis for count 1 in the indictment, which charged the defendant with the possession on January 28, 1976, of LSD with an intent to distribute. The marijuana seized in the search of the locker formed the basis for count 2 in the indictment, which charged the defendant with the possession on January 28, 1976, of marijuana with an intent to distribute.

On January 29, 1976, the day following the search of the defendant's locker at Poco Storage Company, the agents arrested the defendant and searched both his truck and his place of residence. These searches also revealed quantities of both marijuana and hashish, which were seized by the agents. The marijuana thus seized on January 29, 1976, formed the basis for count 3.

Prior to trial the defendant filed a motion to suppress the use at trial of the LSD and marijuana seized in the search of his locker on January 28, 1976, and he also asked that any use of the marijuana seized on the following day, i. e., January 29, 1976, also be suppressed. After hearing, the motion to suppress was denied.

Trial was to the court, sitting without a jury, and the defendant was adjudged guilty on all three counts. On count 1 defendant was sentenced to five years imprisonment with a special parole term of two years. On counts 2 and 3 the defendant was given a suspended sentence and placed on probation.

Defendant now appeals his conviction, and urges what are essentially two grounds for reversal: (1) The use of Chane by the agents to "sniff out" his locker in itself constituted a search, and was not based on probable cause; (2) assuming, arguendo, that Chane's actions did not constitute a search, the affidavits were still legally insufficient to justify the issuing of the search warrants, and, with the initial search of defendant's locker being for that reason unlawful, the subsequent searches of his truck and home were "fruits of the poisonous tree." We do not agree with either of these contentions, and therefore affirm.

The defendant initially contends that the use of Chane by the police to sniff the air outside his locker in the Poco Storage Company was in and of itself a search, and that such search was not based on probable cause. Such being the case, according to the defendant, the ensuing searches of his locker, his truck, and his home were all fruits of the poisonous tree, and should have been suppressed at his trial. This line of argument is premised on the assumption that the actions of Chane in sniffing the air outside defendant's locker in the Poco Storage Company constituted a search. We do not agree with such premise.

The defendant rented locker number 32 from the Poco Storage Company and nothing more. He did not rent the areaway in front of his locker. Such areaway was at least semi-public in nature. The agents brought Chane onto the premises with the consent of the owner of the storage company. Chane was in the areaway outside of defendant's locker and detected odors emanating from the locker proper. It is certain that there was no physical trespass of the locker itself. Physical invasion of "house or 'curtilage' " was at one time held to be essential to a violation of one's Fourth Amendment rights. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1941) and Olmstead v. United States 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1927).

We recognize that the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) stated that the underpinnings of Goldman and Olmstead had been so eroded that the "trespass" doctrine could no longer be deemed as controlling. In Katz the Supreme Court declared that the Fourth Amendment protects people, not places, and held that police action which intrudes upon and invades an individual's justifiable expectation of privacy constitutes a search within the meaning of the Fourth Amendment.

Defendant's efforts to bring himself within the ambit of Katz are in our view unavailing. The record before us clearly shows that the...