For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
By Lance J. Rogers
Nov. 23 — Evidence seized when a drug-detection dog “alerted” after coming within inches of a suspect's apartment window isn't admissible just because the officer let the dog roam off its leash while he stayed well outside the curtilage, the U.S. Court of Appeals for the Eighth Circuit ruled Nov. 23.
The district court had denied Democrus Pernell Burston's motion to suppress on the ground that the officer's conduct did not amount to a search under existing law at the time because he was “lawfully present” when he stayed six feet away from the apartment window while the dog did its work.
In an opinion by Judge Michael J. Melloy, the court ruled that the search was unconstitutional under Florida v. Jardines, 2013 BL 79684 (U.S. 2013) (92 CrL 781, 3/27/13)
It rebuffed the argument that the search was nonetheless valid because the officer's presence outside the curtilage made the dog sniff compliant with existing Eighth Circuit precedent. According to the court, “cases preceding Jardines support the proposition that a police officer cannot invade a homeowner's curtilage by bringing a dog six to ten inches from a resident's window for the purpose of gathering evidence without a warrant.”
It also distinguished the cases cited by the prosecution. One of the cases involved a drug-sniffing dog in a common interior apartment hallway where both the officer and dog were constitutionally permitted, the court observed. The other case didn't even involve a drug dog, it said, but involved officers retrieving a weapon from a common staircase.
“By contrast, the area searched in this case was within six to ten inches of Burston's window, that is to say, an uncommon area,” it said. There was no common walkway leading to the window, it continued, and the bush and a grill in front of the window obstructed any common use.
The argument that there is no Fourth Amendment intrusion so long as the officers stands “in a lawful location” while the drug dog unlawfully invades the curtilage of a home is erroneous, the court said.
It is the location of the dog that matters. If the rule were otherwise, it said, the court would be confronted with delimiting the permissible limits of “that technique.”
Judges Diana E. Murphy and Lavenski R. Smith joined the opinion.
Raphael M. Scheetz, Cedar Rapids Iowa, argued for Burston. The U.S. Attorney's Office, Cedar Rapids, represented the government.
To contact the reporter on this story: Lance J. Rogers in Washington at email@example.com
To contact the editor responsible for this story: C. Reilly Larson at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)