United States v. Whitaker

• Decision Date: 12 April 2016
• Docket Number: Nos. 14–3290,14–3506.,s. 14–3290
• Citation: 820 F.3d 849
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lonnie WHITAKER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

820 F.3d 849

UNITED STATES of America, Plaintiff–Appellee

v.Lonnie WHITAKER, Defendant–Appellant.

Nos. 14–3290

14–3506.

United States Court of Appeals, Seventh Circuit.

Argued April 20, 2015.

Decided April 12, 2016.

Rehearing Denied June 10, 2016.

Rita M. Rumbelow, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff–Appellee.

Mark A. Eisenberg, Attorney, Madison, WI, for Defendant–Appellant.

Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and DARRAH, District Judge.^*

DARRAH, District Judge.

Acting on information that drugs were being sold from a certain apartment in Madison, Wisconsin, law enforcement obtained the permission of the apartment property manager and brought a narcotics-detecting dog to the locked, shared hallway of the apartment building. The dog alerted to the presence of drugs at a nearby apartment door and then went to the targeted apartment where Whitaker was residing. After the officers obtained a search warrant, Whitaker was arrested and charged with drug and firearm crimes based on evidence found in the apartment. At the time of his arrest, Whitaker was serving a term of supervised release in Case No. 07–cr–123, a conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the district court denied his pretrial motions challenging the search and the dog's reliability, Whitaker entered a conditional guilty plea that preserved his right to appeal the district court's ruling.

On appeal, Whitaker raises four issues. First, he argues the use of the dog was a search under the Fourth Amendment and Florida v. Jardines, –––U.S. ––––, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). Second, he contends that the district court should have granted him a Franks hearing because there was a material omission in the affidavit used to obtain the search warrant. Third, Whitaker claims that the dog's training records should have been turned over to him, pursuant to Florida v. Harris, ––– U.S. ––––, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013). Finally, he argues his term of supervised release had expired and he should not have been sentenced after revocation. For the reasons discussed below, we reverse the district court's holding regarding the search. The remaining issues are therefore moot.

I. BACKGROUND

In October 2013, Dane County Sheriff's Deputy Joel Wagner met with a confidential informant about drug dealing at 6902 Stockbridge Drive, Apartment 204, in Madison, Wisconsin. The informant told Wagner that “Javari” lived in Apartment 204, drove a black Cadillac Escalade and carried a handgun in his waistband. The informant reported seeing Javari and another individual selling drugs in the apartment.

On October 14, 2013, Wagner met with the property manager for 6902 Stockbridge Drive and learned that Apartment 204 was leased to Ruthie Whitaker. The property manager took Wagner to the underground parking garage, where Wagner observed a black Cadillac Escalade in the parking stall for Apartment 204. The license plate showed that the Escalade was registered to Ruthie Whitaker.

Over a month later, on November 25, 2013, the same informant sent Wagner a text message. The text message indicated that one of the individuals dealing drugs contacted the informant and told the informant that the individual was back in town and was at the apartment with a lot of “h.” The informant knew “h” to mean heroin. On December 4, 2013, the property manager signed a consent form, authorizing a K9 search of 6902 Stockbridge Drive. On December 17, 2013, Wagner received an anonymous complaint concerning drug activity at 6902 Stockbridge Drive. The anonymous informant did not specifically mention Apartment 204 but indicated that the person who was selling out of 6902 Stockbridge Drive drove a black Cadillac Escalade.

On January 7, 2014, Wagner and Deputy Jay O'Neil, with his drug-sniffing K9 partner, “Hunter,” went to 6902 Stockbridge Drive. Hunter first alerted on the Escalade parked in the space for Apartment 204. Upon a later search of the Escalade, no drugs were found.

The officers took Hunter to the second floor of the apartment building and into its locked hallway, where there were at least six to eight apartments. According to his police report (produced during discovery), O'Neil took Hunter on a quick walk through the hallway in order to get used to any people or animal smells. During the first pass, Hunter showed extreme interest in Apartment 204 but did not alert. Hunter then alerted to the presence of drugs at the door of nearby Apartment 208. Wagner told O'Neil that it was not the targeted apartment. On a secondary sniff, Hunter alerted on Apartment 204.

After obtaining the search warrant, the officers recovered cocaine, heroin, and marijuana in Apartment 204. Whitaker was the sole occupant at the time the warrant was executed, and, in a post-arrest interview, he admitted he lived there. He also told officers about a handgun in his apartment and consented to the officers' re-entry to retrieve it.

On April 11, 2014, Whitaker filed a motion to suppress the evidence seized during the search. He also requested a Franks hearing and the production of Hunter's training records. On May 19, 2014, the magistrate judge issued a Report and Recommendation, recommending that Whitaker's motions be denied. On June 16, 2014, the district court adopted the Report and Recommendation. On October 9, 2014, Whitaker was sentenced to consecutive terms of 12 months' imprisonment on Count 1, possession with intent to distribute heroin and cocaine, and 60 months' imprisonment on Count 3, use of a firearm in furtherance of a drug trafficking crime. On November 14, 2014, the district court revoked Whitaker's supervised release in Case No. 07–cr–123 and sentenced him to a term of 18 months' imprisonment to run consecutively with the sentence given for Count 3 and concurrently with the sentence given for Count 1.

II. ANALYSIS

A. The Fourth Amendment and Jardines

When reviewing appeals from denials of motions to suppress, we review legal questions de novo and factual findings for clear error. United States v. Breland, 356 F.3d 787, 791 (7th Cir.2004). Whitaker contends that the district court erred in holding that he had no expectation of privacy in the apartment building's common hallway and denying his motion to suppress the evidence gathered from his apartment.

In Florida v. Jardines, ––– U.S. ––––, 133 S.Ct. 1409, 1417–18, 185 L.Ed.2d 495 (2013), the Supreme Court held that the government's use of a trained police dog to investigate a home and its immediate surroundings was a search under the Fourth Amendment. The Court explained that the defendant had an expectation of privacy in his porch, which is part of the home's curtilage and “enjoys protection as part of the home itself.” Id. at 1414. This is because the curtilage “is ‘intimately linked to the home, both physically and psychologically,’ and is where ‘privacy expectations are most heightened.’ ” Id. at 1415 (quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 ). The Court was clear that its holding was based on the trespass to the defendant's curtilage, not a violation of the defendant's privacy interests. Id. at 1417–20. Therefore, when the police physically intruded onto the defendant's property to gather evidence without a warrant or consent, they had conducted a search without a license to do so, in violation of the Fourth Amendment. Id. at 1417.

Whitaker argues that Jardines should be extended to the hallway outside his apartment door because the law enforcement took the dog to his door for the purpose of gathering incriminating forensic evidence. He cites to United States v. Herman, 588 Fed.Appx. 493, 494 (7th Cir.2014), in which we specifically left open the question of whether “Jardines applies to apartment hallways (which are open to many persons other than a given tenant's family and invitees), whether consent of another tenant or the landlord would permit a dog to enter, and whether, if the use of the dog is a search, what is required for that search to be reasonable (reasonable suspicion? probable cause? probable cause plus a warrant?).” Although Whitaker recognizes that Jardines was premised on trespass to property, he also argues that this use of a drug-detection dog violated his privacy interests under Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The use of a drug-sniffing dog here clearly invaded reasonable privacy expectations, as explained in Justice Kagan's concurring opinion in Jardines. The police in Jardines could reasonably and lawfully walk up to the front door of the house in that case to knock on the door and ask to speak to the residents. The police were not entitled, however, to bring a “super-sensitive instrument” to detect objects and activities that they could not perceive without its help. 133 S.Ct. at 1418. The police could not stand on the front porch and look inside with binoculars or put a stethoscope to the door to listen. Similarly, they could not bring the super-sensitive dog to detect objects or activities inside the home. As Justice Kagan explained, viewed through a privacy lens, Jardines was controlled by Kyllo, which held that police officers conducted a search by using a thermal-imaging device to detect heat emanating from within the home, even without trespassing on the property. 133 S.Ct. at 1419.

Kyllo 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.” 533 U.S. at 40, 121 S.Ct. 2038. That rule reflects a concern with leaving “the homeowner at the mercy of ... technology that could discern all human activity in the home.” Id. at 35–36, 121 S.Ct. 2038. A dog search...