13 F.4th 223
2d Cir.2021Background
- DEA investigation used a confidential informant and surveillance showing couriers (Riggins, Forney) delivering packages to Mabey’s Self Storage; Unit 296 was linked to the operation.
- After Riggins left Unit 296, a narcotics-certified dog sniffed the outside of several units and alerted on Unit 296; state-court warrant executed and ~100 lbs of marijuana seized from Unit 296.
- Officers later observed a Jeep associated with Unit 296; after a brief contact McKenzie (using the alias “Darrin Clark”) left, a canine alerted on the Jeep and officers found ~56 kg marijuana, a hidden handgun, ammunition, and ~$68,780 in cash.
- A warrant for the Oak Hill residence (linked by records and packaging) produced ~60 kg cocaine packaged similarly to the Unit 296 and Jeep contraband; fingerprints and witness testimony tied McKenzie to the residence and packaging.
- McKenzie moved to suppress arguing the dog sniff of Unit 296 was a warrantless Fourth Amendment search and sought a Franks hearing challenging warrant affidavits; the district court denied suppression and the Franks hearing, jury convicted, and the court applied a two-level firearm Guidelines enhancement and sentenced below the Guidelines.
- The Second Circuit affirmed: canine sniff outside the storage unit was not a Fourth Amendment search; no Franks hearing required; evidence sufficed; firearm enhancement properly applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a warrantless canine sniff of the exterior of a commercial storage unit is a Fourth Amendment search | Gov’t: Canine sniff outside Unit 296 was not a search; unit & surrounding area are commercial, accessible, and the dog was legally positioned | McKenzie: Sniff was a search under both property-rights and reasonable-expectation tests (entry into enclosed facility + expectation of privacy in unit) | Sniff of Unit 296’s exterior was not a Fourth Amendment search; commercial storage lacks home curtilage protections and no reasonable privacy in external air where dog alerted |
| Whether a Franks hearing was required to challenge warrant affidavits (esp. alleged pre-warrant Jeep search and timeline) | Gov’t: Affidavit contained uncontested probable-cause bases (dog alert on Jeep, plain-view boxes, corroborated informant); Breslin affidavit didn’t show material falsehoods or recklessness | McKenzie: Breslin’s affidavit contradicted key timeline and asserted officers searched Jeep before warrant, warrant affidavit therefore false/reckless and material | No Franks hearing required: challenged assertions were not material to probable cause because independent, uncontested grounds (dog alert, boxes in plain view, corroboration) supported warrants |
| Sufficiency of evidence that McKenzie knowingly possessed the cocaine found at Oak Hill Residence | Gov’t: Testimony, lease/rental links, fingerprint evidence, admission to Chambers, and identical packaging across scenes supported knowing, constructive possession and intent to distribute | McKenzie: Insufficient evidence tying him to the Oak Hill cocaine | Evidence was sufficient: testimony, lease/alias links, matching packaging, fingerprints, and admissions permit inference of dominion, control, and intent beyond a reasonable doubt |
| Appropriateness of two-level firearm enhancement under U.S.S.G. §2D1.1(b)(1) | Gov’t: Firearm, ammunition, and cash were found in a sophisticated trap in the Jeep McKenzie operated; weapon’s presence was reasonably foreseeable and linked to trafficking | McKenzie: Enhancement inappropriate (argued not connected to offense) | Enhancement upheld: weapon found with large drug quantity and cash in vehicle used to transport narcotics; defendant failed to show it was clearly improbable the weapon was connected to the offense |
Key Cases Cited
- Florida v. Jardines, 569 U.S. 1 (2013) (canine sniff on curtilage of home is a Fourth Amendment search)
- Katz v. United States, 389 U.S. 347 (1967) (articulates reasonable-expectation-of-privacy test)
- California v. Ciraolo, 476 U.S. 207 (1986) (reasonable-expectation test and limits on privacy in noncurtilage areas)
- United States v. Karo, 468 U.S. 705 (1984) (locating a container in a storage facility by non-intrusive means did not necessarily constitute a search; identifying a specific locker could change analysis)
- United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) (dog sniff outside apartment door held a search due to heightened privacy of the home)
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for demanding an evidentiary hearing to challenge veracity of warrant affidavit)
- Illinois v. Gates, 462 U.S. 213 (1983) (totality-of-the-circumstances test for probable cause from informant tips)
- Florida v. Harris, 568 U.S. 237 (2013) (dog alert can establish probable cause where dog’s reliability is shown)
- Kyllo v. United States, 533 U.S. 27 (2001) (use of enhanced sensory technology aimed at a home can be a search)
- United States v. Place, 462 U.S. 696 (1983) (canine sniff of luggage is a sui generis nonsearch under certain conditions)
- Illinois v. Caballes, 543 U.S. 405 (2005) (dog sniff during lawful traffic stop was not a search)
- United States v. Iverson, 897 F.3d 450 (2d Cir. 2018) (canine sniff does not constitute a search when the observer or dog is legally present at vantage point and senses are lawfully aroused)