Do police need to get a search warrant before they bring a trained drug dog to your client’s door?
If the client lives is a single family home, the answer is yes — thanks to the precedent established by the U.S. Supreme Court in 2013 in its seminal dog sniff case, Florida v. Jardines.
But what if the dog sniff occurs not on the front porch of a stand-alone home, as in Jardines, but in the common hallway of an apartment building? Do those same Fourth Amendment protections still kick in?
That nettlesome question went before the Minnesota Supreme Court on Wednesday, April 11, as the high court took up its first dog sniff case of the post-Jardines era amid a spate of seemingly contradictory opinions out of the Minnesota Court of Appeals.
In the view of the Minnesota County Attorneys Association, the current appeal gives the Supreme Court “an unparalleled opportunity to bring clarity and consistency to an area of Minnesota law that is currently muddled at best.”
“Courts have, for decades, struggled with the question of dog sniffs,” Murray County Attorney Travis Smith and Assistant Anoka County Attorney Kelsey Kelley wrote in an amicus brief on behalf of the organization. “Is a dog sniff a search or not? What level of suspicion, if any, is needed to justify a dog sniff? Is reasonable, articulable suspicion enough? Or do police need probable cause?”
The case that will answer some of those questions dates to the fall of 2015 when a Hopkins police officer got a tip that defendant Cortney Edstrom was dealing methamphetamine out of a Brooklyn Park apartment complex. After gaining access to the building with a key kept in a lockbox for police use, members of the Southwest Hennepin Drug Task Force swept down the hallway with a trained narcotics dog named Kato, who nosed several doors before alerting outside apartment 305 to the presence of drugs.
On the basis of Kato’s signal, police sought and received a search warrant and, in the ensuing raid, seized 225 grams of meth and several firearms. After the district court denied a motion to suppress, Edstrom was convicted of first-degree possession of a controlled substance and being a prohibited person in possession of firearm. He was subsequently sentenced to 124 months in prison.
Last year, however, a Minnesota Court of Appeals panel reversed Edstrom’s conviction, saying that police should have gotten a warrant before bringing Kato to Edstrom’s door. In so ruling, the court drew a distinction between its ruling and the Minnesota Supreme Court’s holding in its last dog sniff case, State v. Davis. In that 2006 case, the high court’s majority said that police didn’t need a warrant to bring a drug dog to the door of a Burnsville apartment where they suspected a marijuana grow.
But in Edstrom’s case, the appeals court noted, the common hallway in question was secured, which created a greater expectation of privacy than in Davis, where the hallway was not secured. Further, the appeals court reasoned, “Jardines has altered the relevant Fourth Amendment analysis by reflecting a greater concern with the intrusiveness of a narcotics detection dog than was prevalent at the time of Davis.”
At the oral argument, Chief Justice Lorie Gildea — who authored the majority’s decision in Davis — pressed Assistant Hennepin County Attorney Jonathan Schmidt to draw a line between the dog sniffs in Jardines and Edstrom.
“Why does it make sense that it’s unconstitutional to bring a dog to sniff the door of a private house but it’s constitutional to bring a dog to sniff the door of an apartment? Why does that make sense?” Gildea asked.
Schmidt responded that the answer lies in Jardines, where the majority’s opinion hinged on a property rights analysis. In particular, he noted, the Jardines court concluded that the enclosed front porch where the dog sniff was conducted lay within the residence’s curtilage — an area “immediately surrounding and associated with” the home that deserves heightened Fourth Amendment protection. But in Edstrom, Schmidt asserted, the common hallway bore none of the characteristics of the curtilage.
Justice Margaret Chutich said that she was troubled by the notion that “those who live in apartments or other form of multi-family housing have fewer Fourth Amendment property rights than those who live in single family home.”
Prompted by a follow up question from Justice Anne McKeig, Schmidt said that the curtilage analysis is “very fact specific.” In certain circumstances, he said, the curtilage rights in a duplex or fourplex might well extend beyond the front door — for instance if the area outside the apartment door were used for storing bicycles or other private use rather than as a common hallway.
“Counsel, what’s the rule of the rule of the law the state is asking us to adopt in this case?” asked Gildea.
Reaffirm Davis and require only reasonable articulable suspicion for a dog sniff, Schmidt answered, adding, “Edstrom and Davis cannot coexist.”
Justice David Lillehaug expressed the most skepticism about the warrantless dog sniff. Among his critiques: Kato didn’t just sniff Edstrom’s door but also other apartment doors where police had no suspicion of illegal activity. Schmidt responded that those sniffs were not investigative but, rather, the police officer’s attempt to ensure that Kato was not giving false alerts.
For his part, Stan Keiller, the special assistant public defender who represents Edstrom, urged the court to adopt the analysis invoked by U.S. Supreme Court Justice Elena Kagan in her concurrence in Jardines. Unlike the majority opinion, which relied on the property rights analysis, Kagan’s concurrence hinged on an expectation of privacy argument.
Keillor also urged the justices to reject Schmidt’s request that the police should be given a good-faith exception in the event court deems the Edstrom dog sniff unconstitutional. While Davis authorized the dog sniff, he argued, Jardines “signaled that the holding of Davis was subject to re-examination.”