897 F.3d 450
2d Cir.2018Background
- Defendant Elijah Iverson called 911 reporting an armed prowler outside his second‑floor apartment; Tonawanda police responded and later returned to follow up about the prowler.
- Officer Costello arrived with a multi‑purpose K‑9 (Tank) trained for tracking, patrol, and narcotics detection; officers knocked and Iverson said "come in," after which Arlington and Englert entered followed by Costello with Tank on a four‑foot leash.
- Tank, while tethered and uncommanded to search for drugs, alerted near the kitchen; officers confronted Iverson, who produced marijuana and later a small bag of cocaine; he was arrested and a warrant search recovered additional drugs and a firearm.
- Iverson moved to suppress the physical evidence and statements, arguing there was no consent for the narcotics‑capable dog to enter; the magistrate and district court denied suppression, finding implicit consent and no Fourth Amendment search.
- During trial, Iverson’s Batson objection to government peremptories succeeded and two Black jurors were seated; one of those jurors (Juror No. 8) was later removed sua sponte after the judge privately learned the juror was functionally illiterate and had his wife complete the juror form.
- Iverson appealed, challenging (1) the denial of suppression (consent and search issues) and (2) dismissal of Juror No. 8 as violating his Sixth and Fifth Amendment rights; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether officers’ entry with Tank and Tank’s subsequent alert violated the Fourth Amendment | Iverson: He did not consent to the presence of a narcotics‑detecting dog; any entry/search by the dog was unconstitutional | Government: Iverson invited officers in; his invitation implicitly extended to the officers' dog; Tank’s alert occurred while legally present and did not constitute a Fourth Amendment search | Court: No Fourth Amendment violation — implicit consent to officers (and dog) entering; Tank’s alert did not convert presence into an unlawful search |
| Whether statements and evidence were "fruit of the poisonous tree" or involuntary/Miranda violations | Iverson: Statements and recovered evidence should be suppressed as tainted by an unlawful search and because he lacked Miranda warnings / voluntariness | Government: Statements flowed from lawful interaction and voluntary disclosures after Tank alerted; Miranda and voluntariness claims lack merit | Court: Suppression denial affirmed; fruit‑of‑the‑tree claim moot given consent finding; Miranda/involuntariness rejected |
| Whether removal of empaneled juror (Juror No. 8) after Batson ruling violated Sixth Amendment right to jury from cross‑section and Fifth Amendment equal protection | Iverson: Dismissal changed jury racial composition and improperly reversed Batson relief; procedure (in‑camera interview and dismissal without defendant present/argument) violated Rule 43 and fairness | Government: Juror was unqualified under the Jury Selection and Service Act due to inability to read/write; dismissal for cause was proper to ensure competent jurors | Court: Procedural error in private in‑camera interview/dismissal without giving parties full opportunity, but dismissal substantively correct and harmless; no reversible prejudice |
| Whether Shaibu or other precedent required express consent for entry of the dog | Iverson: Failure to object cannot be treated as consent; absent an explicit request to bring a drug dog in, consent is not established | Government: Second Circuit precedent allows drawing inferences from words and conduct; Iverson expressly said "come in," and presented no sworn testimony contradicting officers | Court: Shaibu inapplicable; factual finding that Iverson consented (implicitly) was not clearly erroneous |
Key Cases Cited
- Illinois v. Caballes, 543 U.S. 405 (dog sniff that does not infringe privacy is not a Fourth Amendment search)
- Florida v. Jardines, 569 U.S. 1 (license to approach home limited in purpose; bringing a drug dog to the porch to sniff is a search)
- United States v. Place, 462 U.S. 696 (canine sniff of luggage not a Fourth Amendment search)
- Jacobsen, 466 U.S. 109 (search when reasonable expectation of privacy is infringed)
- Schneckloth v. Bustamonte, 412 U.S. 218 (consent to search assessed under totality of circumstances)
- Batson v. Kentucky, 476 U.S. 79 (peremptory strikes may not be used to exclude jurors on racial grounds)