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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.
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