State v. Ortiz

CONCLUSION of law inde- review obligation questions our upon Based determination, the order we reverse court’s the lower pendent William’s denying action paternity trial court this a division of the seeking portion petition demurrer debts, that portion and and we order vacated parties’ property debts of the dividing par- order property the trial court’s no affirmed. abuse Finding remainder of the order is ties. The discretion, William directing the trial court’s order we affirm $1,000. in the amount of fees Jerry’s attorney pay part part, Affirmed and vacated. reversed Nebraska, appellee, State appellant. Eddie R. Jr., Ortiz, 2d 805 N.W. No. Filed October 1999. S-98-568. Schaefer, & for Gallup appellant.

Glenn A. Shapiro, General, Ron for Don and Moravec Stenberg, Attorney appellee.

Hendry, C.J., Wright, Connolly, Gerrard, Stephan, Miller-Lerman, McCormack, JJ. J.

Miller-Lerman, NATURE OF CASE I. Ortiz, Jr., Eddie R. was convicted two counts unlawful with intent to deliver controlled substances sen- possession from tenced Ortiz the trial court’s order accordingly. appeals admitting objection, evidence over his which evidence Ortiz Const, claims was obtained in violation of U.S. amend. IV and Const, I, art. 7.§ below, As more for explained fully canine sniff illegal drugs which was conducted at the threshold to Ortiz’ apartment where Ortiz had a some measure of legitimate Const, I, violated the Fourth Amendment and Neb. art. a 7. canine be to test for Although may deployed illegal § drugs cases, in some so at the threshold a on doing dwelling less reasonable, case, than articulable improper. In this the information obtained the alert of the canine must be excised affidavit the search The support warrant. residue the affidavit did not amount to probable cause warrant, issuance of a search and the seized contraband pursuant must, therefore, to the defective search warrant be suppressed. We conclude the facts of this case that search of Ortiz’ apartment was flawed constitutionally and that the contraband reverse, recovered should have been excluded. We and remand for new trial with consistent this opinion.

II. STATEMENT OF FACTS 7,1997, Sometime during early evening August Omaha police received call from a telephone (C/C) concerned citizen who told that she he “knew of’ Ortiz and alleged that Ortiz “has been active in distributing cocaine from his apartment year.” within the Police past given were Ortiz’ and gen- address physical eral of Ortiz The description by C/C. record indicates received, at the time the call was Ortiz was not suspect. Police verified Ortiz had lived at the address given by caller for about checked their years. internal records, which showed that Ortiz had a conviction prior substance, possession for of a controlled for which he had been sentenced to a 6-month term of that imprisonment, and a con- current charge had been dismissed. The records also possession with early 1994 charged Ortiz was showed that charges that but hashish with intent deliver marijuana and were dropped. took officers evening, police on the same p.m.

At about 8:45 mar- the scents of to detect specially trained Pogo, police dog base, cocaine, amphetamine, methamphetamine, cocaine ijuana, to perform outside Ortiz’ hallway apartment heroin into the hallway ran Pogo the area. The officers canine sniff of the door Pogo by “alerted” Ortiz’ apartment, outside apartment. Ortiz’ obtained a “no- for and August applied

On officers which entitled them to search search warrant knock” daytime for The and application interior Ortiz’ affidavit apartment. read, pertinent warrant submitted officers by as follows: part, for of a grounds

That the are issuance following for for the search warrant said and the reasons property belief, Affiant’s to-wit: hours, Thursday, evening

On August citi- by Affiant Officer LANG was contacted zen, a concerned referred to as the The C/C advised that hereafter C/C. ORTIZ, knew of an individual the name of Eddie he/she male, mid-twenties, as an with a small described Hispanic Street, build, The who resides at 809 South #6. Apt. 70th C/C stated ORTIZ is active cocaine distributing The C/C apartment. his stated that ORTIZ has been active cocaine from his within the distributing apartment C/C who did not past year. provided this information request any type monetary compensation providing this information.

On Thursday, August at approximately hours, KUNZE, LANG, Officers and HENRY of the Narcotics Unit went to the of 809 70th address South Street, 6. Officer HENRY the Apt. drug canine handler of POGO who was utilized at the address detect Officer presence narcotics. HENRY ran POGO at door time which POGO alerted to the pres- ence narcotics. Officer HENRY advised POGO made a alert the narcotics positive presence Apartment #6. affidavit, here, not repeated

Another paragraph of which is Pogo’s training, described the not relevant adequacy our resolution the The affidavit also included the appeal. results of the officers’ check the records and fact that Ortiz had July resided at the since 1995. apartment 8,1997, Based on the affidavit offered on a by police, August Douglas Court warrant County judge issued a authorizing officers to search Ortiz’ for cocaine apartment and related para- cash, thereafter, and phernalia, weapons. offi- Shortly police cers executed the Within warrant. Ortiz’ apartment, officers $6,300 found of an ounce of and in one-quarter cocaine a kitchen drawer, $11,000 freezer, 4 ounces of and and marijuana notebook containing records of suspected drug transactions.

Ortiz was not present when the officers searched his apart- search, ment. After the officers concluded they left a busi- a telephone ness card with number at which they could be reached. The Ortiz’ under police kept surveillance for apartment Ortiz did unspecified but not period, appear, subsequently abandoned surveillance.

Ortiz himself to voluntarily presented police on August 1997. He was with of cocaine with charged possession intent to deliver, II a Class violation of felony Neb. Rev. Stat. 28-416(l)(a) (Reissue 1995) (count I), § possession mari- deliver, juana with intent to III Class felony violation of 28-416(l)(a) (count II), and § possession money/currency narcotics, used to of illegal facilitate distribution IV Class felony 28-416(16) (count III). violation §

Ortiz filed a motion to suppress all the evidence seized alia, from his claiming, inter that the apartment, search warrant was supported by probable cause. The district court for 6, 1997, overruled the motion on November Douglas County that the affidavit finding submitted support search warrant adequately Pogo’s training described and relia- as a bility drug-sniffing Pogo’s canine alert the hall- way outside Ortiz’ door with provided police prob- able cause to obtain the search warrant. tried were against the charges Ortiz December

On facts, with a standing objection court on stipulated to the The pros- his apartment. seized from to all of the evidence Ortiz III, posses- charge count withdrew ecution subsequently illegal drugs. distribution of to facilitate the of funds used sion I June and II. On Ortiz of counts guilty trial found court of 3 to 5 imprison- a term years’ Ortiz was sentenced years’ a term of to 3 imprisonment on count I and ment II, consecutively. to be served count OF ERROR

III. ASSIGNMENT Restated, that the trial court erred claims on appeal Ortiz as a from his apartment into evidence items seized admitting of the search. result OF REVIEW

IV. STANDARD evidence, to A on a motion ruling suppress trial court’s conduct reasonable to determinations apart cause to probable perform warrantless investigatory stops searches, fact are findings is to be unless its upheld appeal determination, making appellate erroneous. In this an clearly resolve does not the evidence or conflicts reweigh court evidence, rather, but, the trial court the finder of recognizes as it observed the witnesses. fact and takes into consideration that Johnson, (1999). Neb. To the 589 N.W.2d 108 involved, are an court is obli questions appellate extent of law to reach of the decisions reached independent conclusions gated the courts below. Id. by

V.ANALYSIS to 1. Probable Cause Issue Search Warrant warrant, valid, A be search be must an supported by Johnson, cause. probable affidavit which establishes “Probable cause” sufficient to issuance of a search supra. justify warrant means a fair contraband evidence of probability that or Craven, will State a crime be found. v. Neb. Proof of probable N.W.2d cause issuance justifying of a search warrant must consist of generally facts so closely to the of issuance as related time of the warrant a find- justify Johnson, at time. v. probable cause State ing supra. a Probable cause to is determined standard by objec- search reasonableness, is, tive whether known facts and circum- person prudence stances are sufficient to warrant a of reasonable in belief of a be a that contraband evidence crime will found. Craven, v. State supra.

In a an affidavit submitted as reviewing strength warrant, basis for finding cause issue search an probable court of the appellate applies “totality circumstances” rule whether, is whereby question under the totality cir affidavit, cumstances illustrated the issuing magistrate had a substantial basis that the finding affidavit established Detweiler, probable cause. State v. N.W.2d 83 rule, (1996). As a court is restricted general appellate to con sideration of the information and circumstances found within the Johnson, four comers of the affidavit. v. A State search supra. conducted a search pursuant warrant supported probable reasonable, is generally cause considered to be and it is a defen to prove dant’s burden that the search or seizure was unreason able. State Swift,

Where an support affidavit warrant cause, inadequate to establish search warrant is Johnson, constitutionally defective. State supra. Where search is conducted pursuant constitutionally to a defective war rant, the evidence obtained the search must be excluded. State Fitch, 108, v. 255 Neb. 582 342 N.W.2d on relying Wong States, 471, 407, v. Sun United 371 U.S. 83 Ct. L. S. 9 Ed. 2d However, 441 defect in every an affidavit renders the warrant defective or the seizure made to the pursuant warrant unconstitutional. it be Although to excise may necessary certain affidavit, matter from an if the remainder of the affidavit is suf cause, ficient to establish warrant issued such upon remaining information the affidavit will be and the proper results of the search pursuant to the warrant are constitutionally Karo, 705, 3296, v. obtained. United States 468 U.S. 104 S. Ct. Thomas, (1984); 82 L. Ed. 2d 530 United States v. 757 F.2d denied, (2d 1985), States, 1359 cert. Fisher v. United 474 66, 819, 54, U.S. S. 88 106 Ct. L. Ed. 2d in part reversed other grounds (MP), Nos. 97 CIV. 3250 (MP), 97 CIV. 3784 SS

792 WL 283346 (MP), 1998 (MP), 97 CIV. 3785 150

83 CR. Tarazon-Silva, F. 1, Supp. 960 1998); U.S. June (S.D.N.Y. See, 1998). (5th Cir. 1997), 166 F.3d 341 (W.D. 1152 Tex. aff’d 469, Morrison, 547 500 N.W.2d similarly, Johnson, 256 grounds, on other (1993), disapproved 133, inaccuracy (1999) (noting 589 N.W.2d in package contraband contained description quantity invalid). render warrant did not search affidavit to obtain in the instant case by police The affidavit submitted of two principal consisted Ortiz’ apartment a warrant the trained Pogo, canine sniff by the results of the components: door and outside Ortiz’ dog, hallway C/C, with coupled call received of the description We each compo- address police. further facts supplied nent below. Dwelling Expectation Privacy at Threshold and

2. Deploy Suspicion Requirement Canine of Reasonable Dwelling Illegal Drugs at Threshold to Sniff for associated with right been observed that the It has Amendment unique is “one of the under the Fourth the home States, U.S. McDonald v. values of our civilization.” United 451, 453, 69 (1948). The U.S. Supreme L. Ed. 153 S. Ct. noted: recently Court observa-

“In court made the now-famous English him as his castle every that ‘the house of one is to tion fortress, and vio- against well for his defence injury as 91a, Case, lence, his 5 Co. repose.’ Semayne’s Rep. as for 91b, (K. B.).” Eng. Rep. 1692, 1697, 143 603, 119 L. Ed. U.S. S.

Wilsonv. Ct. Layne, “The Fourth Amendment 2d The Court continued: for the privacy principle respect embodies this centuries-old be free from unreasonable Id. The right of the home.” substantial, been and it has of the home is searches seizures “ wording ‘chief evil which against to be the said ” Wisconsin, 466 Amendment is directed.’ Welsh Fourth 740, (1984) (quoting 80 L. Ed. 2d 732 Court, 297, 92 v. United States District United States (1972)). 2d 752 Ct. 32 L. Ed. S. Nebraska, In from freedom unreasonable searches and Const,

seizures is U.S. amend. IV and Neb. guaranteed I, 214, 556 State Konfrst, Const. art. 7. N.W.2d 250 § Const, I, Fourth Amendment and Neb. art. pro § hibit These unreasonable searches seizures. constitu only protect tional do not citizens from provisions governmental all intrusion, but from unreasonable only intrusions. State v. Ranson,

The leading case canine sniffs is United States regarding Place, 462 U.S. L. 2d 77 Ed.

in which it was concluded that the evidence of cocaine involved Place, In therein should be the Court suppressed. Supreme considered the federal Fourth Amendment implications of drug use detection to sniff dog After luggage airport. Place arrived at New York airport, he refused voluntarily allow his police search two suitcases. The officers allowed leave, Place to took his but to a luggage separate location for a drug dog detection to sniff. The dog alerted to one aggressively of Place’s suitcases. At this point, minutes had approximately elapsed the officers’ initial contact with Place. It was a afternoon, Friday and rather than immediately seeking a warrant, the officers held Place’s suitcases over the weekend and applied a search warrant the following Monday morning. When executed the warrant and searched Place’s suit- cases, 1,125 they found grams of cocaine.

The Court in Place stated that a person possesses a privacy interest in the contents of personal luggage that protected by the Fourth Amendment. The Court in Place observed that a canine sniff is sui generis canine alert is limited existence contraband and that the sniff is not highly intrusive. The Place Court determined that the canine sniff the luggage not, itself, did violate the Fourth Amendment. Id. The Place however, concluded, Court because detained for luggage lengthy and failed to period diligently pursue investigation, the cocaine discovered Place’s luggage pur- suant to the search warrant should have been suppressed. case,

In the facts of analyzing the Place Court observed that a seizure of Place’s be might within luggage justified Ohio, Fourth exception Amendment in Terry v. 1868, 1, (1968), 2d where police possess L. Ed. 88 S. Ct. articulable facts based and upon specific suspicion a reasonable and the detention investigative present narcotics are illegal The Place Court stated that limited scope. is properly Amendment, and search under the Fourth sniff was not a canine Morrison, in State 243 Neb. concluded similarly we have sniff of a sent package by that a canine nevertheless, was, proper mail not a search but was express reasonable facts amounting because it was preceded suspicion. commonly required support suspicion,

Reasonable White, detention, Alabama v. 496 U.S. S. Ct. seizure or 2412, (1990), is a of facts less than quantum 110 L. Ed. 2d 301 search, cause, United support commonly required Sokolow, S. Ct. 104 L. Ed. 2d 1 States v. See, Johnson, also, 589 N.W.2d (1999). Where have reasonable police suspicion, they their suspicion their either to confirm may pursue investigation Ohio, that crime is Terry supra. or to afoot. dispel Place, United States v. in canine sniff cases supra, Following as canine of luggage, pack- in a such sniffs variety settings warehouses, of courts have public majority ages, of evidence the use of a gained by the admission approved if the canine sniff evidence was obtained based on a canine sniff reasonable, Waz, articulable See State v. 240 Conn. suspicion. collected). (1997) (cases 692 A.2d 1217 For example, storage of a canine sniff of the corridor of a locker context Court, referring to the canine facility, Pennsylvania Supreme constitution, “search” under stated: Pennsylvania’s sniff as a We believe that there is a Fourth Amendment middle to the conducted ground applicable investigations one of narcotics detection On the dogs. handlers hand, dogs of the law enforcement of such utility much if full were would be lost blown warrant procedures used; sniff could be but on the before canine required other, free our view that a free will not remain society it is device, this, or detection any if use other crime police may and without reason. we hold that Accordingly, at random narcotics detection be dog may to test for the deployed presence of narcotics ... where:

(1) the are able articulate reasonable grounds for believing that drugs may be present place they test; seek to

(2) the police are lawfully present where the place canine sniff is conducted.

Our holding is based in part, on considerations not dissim- ilar to those stated in United States v. Place: a canine sniff- search is less inherently intrusive upon individual’s pri- than other vacy searches such as wiretapping or rummaging through one’s it is luggage; to intrude unlikely except innocent marginally upon persons; and an individ- harassment, ual’s interest free being from police annoy- ance, inconvenience and humiliation is reasonably certain if protection the police must have a reason before they . . . utilize may a narcotics detection dog. Johnston, 454, 465-66,

Com. 74, v. 515 Pa. 530 A.2d 79 With in respect canine sniffs hallways adjoining residential quarters, case, of sniff which type is the of the subject instant numerous courts have held that a canine sniff intrudes into an area where an individual has a reasonable expectation of privacy and that a canine in sniff a residential must hallway be supported at least reasonable based on suspicion articulable facts. Thus, Dunn, 19, 26, in example, 11 People N.Y.2d 564 1054, 1058, 388, N.E.2d 563 (1990), N.Y.S.2d 392 cert. denied 1219, 111 S. 2830, 115 Ct. L. Ed. 2d 1000 New court, York’s highest a case involving a warrantless canine sniff in an apartment concluded a hallway, canine sniff was a search under the state’s constitution and stated as follows: “Given the uniquely discriminate and nonintrusive nature of device, such an investigative as well as its significant utility authorities, law enforcement we conclude that it bemay used cause, without a warrant or probable provided that the police have a reasonable that a residence contains illicit con otherwise, traband.” The Dunn court added: “To hold we believe would raise the specter police roaming indiscriminately through corridors of public housing with projects trained dogs .... Such drugs an Orwellian notion would be 796 25, 564 ...” Id. at State Constitution under our

repugnant at 392. N.Y.S.2d N.E.2d at 563 Dunn, rec- supra, material from People The above-quoted of the Fourth forgive requirements that “we cannot ognized it is not ask- in the name of law enforcement Amendment [and] with the basic required comply that officers be too much ing Amendment before the innermost the Fourth command of York,388 invaded.” v. New Berger one’s home .. . are secrets of 41, 62-63, 2d 1040 Ct. 18 L. Ed. U.S. 87 S. that some courts have we note completeness,

For the sake in a residen legitimate privacy expectation held that there is no thus, not impli and that canine sniffs do hallway tial apartment U.S., See, Brown v. 627 A.2d e.g., cate the Fourth Amendment. (Tenn. (D.C. 1993); Crim. 763 S.W.2d Taylor, other end of the courts have 1988). spectrum, At the some App. a res heightened expectation stated that there is Thomas, F.2d idential United States v. apartment hallway, denied, States, 1985), (2d cert. Fisher v. United 2d 88 L. Ed. reversed part (MP), (MP), Nos. 97 CIV. 3250 97 CIV. 3784 SS grounds other (MP), (MP), CR. 97 CIV. 3785 1998 WL 283346 1, 1998), (S.D.N.Y. June and thus a canine sniff may pro See, absence of probable similarly, ceed cause. Dearman, (1998) (holding 92 Wash. 962 P.2d 850 App. cause is to canine sniff outside residen required prior tial garage). agree

We with the courts which conclude an individual’s Fourth Amendment interests a limited may extend home, maimer the four walls of the on the beyond depending facts, free including expectation some of to be from privacy canine sniffs for illegal drugs hallway outside an residence, or at the of apartment threshold and that a canine sniff under these circumstances must be based on no than less reasonable, articulable As suspicion. described more fully case, that, below, the of under facts this we conclude the given of some in legitimate expectation measure of the hall privacy the canine sniff for which way, illegal drugs lacked reasonable Const, I, suspicion violated the Fourth Amendment and Neb. art. States, Our is similar 7. to that v. United 389 reasoning § Katz

797 347, 507, (1967), L. 2d in which the U.S. 88 S. Ct. 19 Ed. 576 expecta- U.S. that the given legitimate Court reasoned Supreme booth, moni- tion in a of a placement the privacy telephone device on the outside thereof violated the Fourth toring Amendment’s unreasonable searches proscription against See, States, U.S. seizures. McDonald v. United similarly, 451, 191, (1948) (reasoning trespass 69 S. Ct. 93 L. Ed. that home, rooming officers into house violated privacy evidence). requiring suppression of seized Application 3. of Law to This Case (a) Existence Privacy This Case Expectation case, In the canine was not recognize instant we that the sniff however, information inside the conducted the apartment; gained canine as to the by the alert existence of contraband apartment inside the emanated inside was detected outside at its threshold. In this it has been regard, held that has been monitoring of property “[indiscriminate withdrawn from view would far too serious a public present threat to entirely interests home to some escape Karo, sort of Fourth oversight.” Amendment United States v. 705, 716, 468 U.S. 104 Ct. Ed. S. 82 L. 2d 530 It has also been observed that reach of the Fourth Amendment “cannot turn upon absence intru- presence physical enclosure,” States, sion any given into United 389 U.S. Katz 353; at Fourth Amendment forecloses a distinction “ ” “ ” between ‘worthy’ and are ‘unworthy’ objects which Ross, subject of United investigation, States v. “[tjhose (1982); 72 L. Ed. 2d 572 and that are

suspected drug offenses no less entitled to [Fourth than protection those suspected nondrug Amendment] offenses,” Karo, United States v. at 717.

In connection with assessing Ortiz’ hallway for Fourth Amendment and Nebraska constitu- “ tional we note that the purposes, ‘Fourth Amendment protects ” Havlat, people, places' (Emphasis original.) 554, 558, Neb. 385 N.W.2d quoting Katz States, See, also, Ramaekers, supra. United Katz, N.W.2d 608 As noted above elec- was the outside of a booth telephone affixed to

tronic device the user the Fourth Amendment because determined to violate privacy upon legitimate expectation booth had a telephone a call. It has placing booth and telephone door to the closing the to the knowingly exposes public, stated: “What a person been office, of Fourth in home or is not subject even his own Amendment he seeks as preserve pri- what protection____But vate, bemay area accessible to the constitu- public, even an States, In v. United 389 U.S at 351-52. tionally protected.” Katz Stewart, Katz, for the cautioned writing majority, Justice cannot be into a con- general “the Fourth Amendment translated ” Harlan, 389 U.S. at 350. Justice ‘right privacy.’ stitutional is said the of Fourth Amendment concurring, protection extent States, 389 determined reference to a v. United by place. Katz at 361. The enunciated have been principles long Katz Havlat, relied in our State v. Because jurisprudence. supra. upon the situs of the canine sniff this case is the threshold Ortiz’ we must make reference to the apartment, adjoining dwelling analysis appeal. our this privacy us, In cases such as the one to determine before whether an by individual has interest the Fourth protected Const, 7, I, Amendment and Neb. art one must determine § legitimate whether an individual has a or justifiable expectation place subjected to canine scrutiny. Ordinarily, First, two are the individual must inquiries required. have “ ” ‘exhibited an actual (subjective) expectation privacy,’ second, “the is one expectation is to rec ‘society prepared ’ ” Palmer, ognize as “reasonable.” Hudson v. 468 U.S. n.7, 3194, 82 (1984). 104 S. Ct. L. Ed. 2d 393 This two-part See, has been and utilized this court. inquiry adopted Ramaekers, Merrill, supra; 563 N.W.2d The “ultimate question” whether one’s claim of governmental intrusion is reasonable in of all light Palmer, See, surrounding the also, circumstances. Hudson v. supra. Olson, Minnesota v. 109 L. (1990) Ed. 2d 85 Hudson Palmer (apparently combining two- one). part into inquiry

Reasonable expectations of privacy vary according to the case, context O’Connor v. Ortega, 480 U.S. 107 S. Ct. 94 L. Ed. 2d has It been observed: “Legitimation law must have a privacy by Amendment, source outside of the Fourth either reference to of real or law or concepts personal property understandings Illinois, that are recognized society.” Rakas v. permitted by 128, n.12, 421, 144 (1978). 439 U.S. 99 S. Ct. 58 L. Ed. 2d 387 doubt, confirm, see, There can be little and the cases e.g., Wilson 603, 1692, v. 526 Layne, 119 S. Ct. 143 L. Ed. 2d 818 home, home, (1999), that a including is considered apartment both by to be entitled to occupants society greater privacy nature, locker, than of a less intimate objects such as a storage Johnston, 454, 530 (1987); Com. v. 515 Pa. A.2d 74 or of a more nature, transient vice, such as a entrusted package to the ser postal Morrison, 469, State v. 243 (1993), 500 N.W.2d 547 Johnson, 133, on disapproved other State v. grounds, 256 Neb. vehicle, Pellicci, (1999); 589 N.W.2d 108 or a State v. 133 N.H. See, also, (1990). 580 A.2d 710 Konfrst, In this we note regard, that case law recognizes there is a greater degree privacy expected in the home than in a hotel or a motel. See Commonwealth v. Panetti, 406 Mass. N.E.2d 46

In assessing the in privacy interest the apartment we hallway, whether, circumstances, must evaluate under the the area of the “ hallway should be under the placed home’s ‘umbrella’ of Fourth Dunn, Amendment protection.” United States v.

294, 301, 94 L. Ed. 2d (1987) (defining, alia, inter In curtilage). this it regard, should be noted that given the undisputed fact that the officers went to the outside hallway Ortiz’ on one occasion solely deploy in Pogo, ana- case, this we are lyzing obliged speculate as to whether the police have been might lawfully present the apartment hallway unaccompanied canine whose purpose being there was to detect illegal drugs.

We recognize, as noted earlier this opinion, that the authorities are as to split whether an occupant has a reasonable expectation outside his or hallway her apart ment. We with the courts which agree hold that there is some measure of privacy at the threshold of an apartment dwelling. Killebrew, For 215, 218, example, People v. 16 Mich. App. 256 N.W.2d it was “[generally, stated that shared tenants in hallway multi-unit is not private dwelling It is a intended for the use of the public place. private space and their and an area in occupants guests, which the occupants have a reasonable For sake privacy.” of com law, pleteness, we note that under the case degree society willing to accord an apartment hallway may depend facts, such as whether there is an outer door locked to the access, Trull, street which limits e.g., 64 Ill. People 3d App. (1978); N.E.2d the number of residents using Fluker, hallway, e.g., (9th United States v. 543 F.2d 709 1976); number of units the apartment complex, e.g., Killebrew, People and the supra; presence or absence of no- trespassing signage, e.g., Taylor, (Tenn. 763 S.W.2d 756 1988). Crim. App.

Where the police unaccompanied by a canine merely are pursuing an it investigation, has been held that they may go Breuer, stairway leading an apartment, State v. (Iowa 1998), N.W.2d 41 or walk around to the rear of a defen home, Anderson, dant’s United States v. (8th 552 F.2d 1296 Cir. 1977), an notwithstanding occupant’s expectation of some mea- sure of in these locations and that that which an officer observes plain view while lawfully an pursuing investigation is not protected by the Fourth Amendment. We have recently observed that within “Objects, falling the plain view of an offi- cer, who has the right view, to be in the position to have such Ramaekers, does not 391, constitute a search.” State v. ante p. 397, 608, See, also, 597 N.W.2d (1999). 613 State v. Pope, 239 1009, To the foregoing we add: That which a law enforcement officer detects his her using unaided senses while lawfully present does not violate Fourth Amendment or Nebraska constitutional principles, because that which is voluntarily exposed to the general public and observ- able from an area unprotected without using sense-enhancing devices is not a part person’s private affairs. See State v. Dearman, 630, 92 Wash. App. (1998) 962 P.2d 850 (holding, alia, inter that canine sniff of residential was search garage under Washington constitution). It has also been observed: ear, “What can be heard naked when the ear is where it

[801] be, has a is not the Fourth Amendment.” right protected by 324, (2d 1980), United States v. 620 F.2d 331 Cir. Agapito, cert. 834, 107, denied 449 U.S. S. Ct. 66 L. Ed. 2d 40. In contrast to the officers’ observations obtained by plain view, the use of canine such as a occurred this case is “not a smell, mere sense of improvement as ordinary [the officers’] vision, but eyeglasses improve significant enhancement different, and far accomplished by instru superior, sensory Thomas, ment.” United v. (2d States 757 F.2d 1359 at 1367 denied, States, 1985), 819, cert. Fisher v. United 474 U.S. 66, 54, S. Ct. 88 L. Ed. 2d reversed in part on other grounds (MP), (MP), Nos. 97 CIV. 3250 97 CIV. 3784 SS 83 CR. 150 (MP), 1, (MP), (S.D.N.Y. 97 CIV. 3785 1998 WL 283346 June 1998). Like the electronic surveillance equipment v. Katz States, 347, 507, United 88 S. Ct. 19 L. Ed. 2d 576 (1967), the results of which surveillance were suppressed as Amendment, obtained violation of the Fourth the information “originate[d] from inside a area and private beyond its traveled] Price, 557, perimeters,” People N.Y.2d 431 N.E.2d 267, 271, J., (1981) N.Y.S.2d (Meyer, concurring) unexposed to all except those with supersensitive detection LaFave, Seizure, devices. See 1 R. Wayne Search and a Treatise on the Fourth 2.2(f) (3d Amendment 1996). ed. § By using canine to sniff for illegal drugs hallway outside Ortiz’ apart ment, have engaged investigative technique by which they are able to obtain information regarding the contents of a that has place traditionally been accorded a heightened Dunn, See privacy. People 77 N.Y.2d cert, N.E.2d N.Y.S.2d 388 denied 501 U.S. 115 L. Ed. 2d 1000 While such an investigative intrusive, technique bemay minimally it never Const, theless implicates the Fourth I, Amendment and Neb. art. 7, and requires independent § reasonable Id. suspicion. canine sniff for at illegal drugs the threshold of a dwelling is an investigative may tool which be used to build a case of probable cause for issuance a search if warrant there is reasonable sus picion take canine to the location of the test.

(b) Lack of Reasonable Suspicion Deploy

the Canine in This Case The canine sniff for illegal drugs this case transpired a location which Ortiz had a legitimate expectation of some therefore, measure of privacy, intrusion is to the subject Const, I, 7, Fourth Amendment and Neb. art. and we have con § cluded that the needed officers at a minimum suspi reasonable cion before with the canine sniff. The proceeding investigative tool of the canine sniff at the threshold of a dwelling may thus be used where it is information preceded by to rea amounting sonable, below, articulable As detailed suspicion. we determine that the officers lacked reasonable to take into suspicion Pogo the hallway outside Ortiz’ door in this case.

With respect to existence of reasonable suspicion, we have explained that reasonable entails mini suspicion some mal level of objective justification which is more than an hunch, inchoate and unparticularized suspicion or but less than the level of suspicion required for a finding of probable cause. Johnson, 133, State v. 256 Neb. N.W.2d 108 cause, Reasonable like suspicion, both depends upon the content of information possessed by and its degree Both reliability. factors are considered in the of the cir totality cumstances that must be taken into account evaluate whether Thomas, reasonable 545, exists. State v. 240 (1992), White, N.W.2d 527 relying Alabama v.

110 S. Ct. 110 L. Ed. 2d 301 We have said with respect to certain investigations that for officers to have reason able have suspicion, they must a reasonable belief that a crime has been Bowers, or is about to be committed. State v. 250 Neb. (1996); Hicks, (1992), N.W.2d 359 cert. denied 507 U.S. Thomas, L. (1993); 123 Ed. 2d 183 supra. A sniffs, review of decisions of other courts regarding canine albeit nonresidential settings, is helpful illustrating of facts types which amount to reasonable suspicion sufficient to a canine justify sniff. Common threads such cases as U.S. v. Mondello, (9th State, F.2d 1991), McGahan v. (Alaska 1991), Johnston, P.2d 506 454, App. and Com. v. 515 Pa. 530 A.2d 74 and other cases in which reasonable contraband, sniff has been found to suspicion justify a canine are a officer’s police personally conduct observing suspicious or, alternative, investigating as to incriminating opposed innocuous facts or receiving incriminating information from an established reliable informant.

We examine in the instant case whether the had at least police reasonable, articulable to into the suspicion bring Pogo hallway sniff, outside of Ortiz’ to apartment conduct the canine which sniff is to the Fourth Amendment subject and the Nebraska Constitution. If the were police possession information amounting to reasonable when the canine sniff was conducted, the results of the sniff can be considered evaluat- ing the existence of probable cause for the issuance of the search Morrison, warrant. State v. 243 Neb. 500 N.W.2d 547 (1993), Johnson, disapproved on other State v. grounds, supra; Staten, State v. (1991); 469 N.W.2d 112 Chronister, If, Neb. 526 N.W.2d 98 App. how- ever, reasonable, the police did not have at least articulable sus- picion proceed to the hallway outside Ortiz’ apartment for door, purpose running Pogo outside Ortiz’ hallway evi- dence of reaction Pogo’s cannot be considered in assessing warrant, existence of probable cause to issue the search if the remainder of the information in the affidavit does not cause, amount to warrant defective fruits and the See, of the search Fitch, must be suppressed. e.g., (1998) in reliance on (holding, Wong States, Sun v. United S. Ct. 9 L. Ed. 2d that evidence directly produced by unconstitutional search, as well as indirectly evidence derived from unconstitu- search, tional must be suppressed).

The record indicates that police officers brought Pogo apartment Ortiz’ building for the purpose a canine performing sniff on the same in which evening had earlier they received the anonymous call from C/C that Ortiz had been alleging actively cocaine from distributing his “within the past year.” This information from C/C was an uncorroborated allegation from anonymous source whose reliability was unknown to police. The caller “within reported activity past but year” stated no exigent circumstance that demanded immediate action The officers did not police. conduct a investi- meaningful The verified

gation. innocuous information which had been C/C and did a criminal records check which supplied revealed a conviction and more than 6-year-old charges dropped 3 years and his prior enlisting Pogo handler to perform canine sniff in hallway outside Ortiz’ Prior to apartment. call, receiving C/C’s had no suspicion that Ortiz was presently engaged criminal conduct. The officers made no of Ortiz or observations proposed location the canine sniff prior deploying Pogo. information provided by the C/C anonymous coupled with the verification of inconclusive facts did not quantum amount to a of or degree facts to the of which reliability amounted to reasonable suspicion. See State Thomas, 545, 240 Neb. 483 N.W.2d 527 Based on the we determine that the foregoing, officers did have reason- able to the go outside hallway of Ortiz’ apartment for the purpose running Pogo outside Ortiz’ illegal detect drugs.

The information from resulting the alert was not obtained in a manner consistent with the Fourth Amendment and Neb. Const, I, art. 7. The information gained § by Pogo’s virtue obtained, sniff outside Ortiz’ apartment was not constitutionally and such information cannot be considered as a basis obtain- must, therefore, a search ing warrant. We excise the information generated alert in the by Pogo’s hallway the affidavit and examine the remainder affidavit for the existence of prob- able cause. The remainder of the affidavit consists of the infor- C/C, mation supplied by coupled with some additional facts noted above.

(c) Evaluation of Information Affidavit Other

Than Canine Alert for Probable Cause: Reliability Sufficiency Information Supplied by C/C and Other Facts To have the evidence seized pursuant the search warrant Ortiz show suppressed, must that there was not a sufficient residue information in the affidavit amounting cause to the warrant support without consideration of the fact of obtained canine improperly alert. In addition to the positive alert, consisted of issuing judge canine the affidavit before information C/C and the address and records supplied check of Ortiz. is obtained on the strength

When a search warrant informant, in support the affidavit information received from demonstrating set forth facts of the issuance of the warrant must of criminal knowledge activity. the basis the informant’s or credibility affidavit must either establish the informant’s also of the infor set forth a officer’s independent investigation 738, mation the informant. State v. Neb. Lytle, supplied (1998), on other part grounds, 587 N.W.2d 665 disapproved Johnson, (1999); State v. 589 N.W.2d 108 State v. Flores, (1994), 245 Neb. 512 N.W.2d disapproved Johnson, on other State v. State v. part grounds, supra; Utterback, disapproved Johnson, State v. This is so part grounds, supra. other because without the informant’s credibil regarding information “ would have no ity, magistrate way ascertaining ‘[t]he vendetta, rumor, whether this was reprisal, tip speculation, ” 255 Neb. at 587 N.W.2d at gossip.’ Lytle, 252 Mont. Valley, with 830 P.2d quoting approval If an affidavit does not establish that an informant reliable, a search warrant the information solely upon issued is invalid. State v. supplied by Lytle, supra. informant As set forth from the passage excerpted above warrant, affidavit submitted order to obtain the C/C’s name nor was not made known to the affidavit indi magistrate did cate that C/C was known to the officers or had police provided ¿he reliable information to them the On State past. appeal, characterizes C/C as a citizen informant whose was tip presump reliable. This is incorrect because the affi tively characterization davit submitted in for a search warrant support application informant, does not as a citizen which is a identify special C/C See, status which must be State v. affirmatively alleged. Lytle, Utterback, the affidavit State v. stated supra; supra. Although that C/C did not for the information request payment given fact, more, not that the police, this without does establish tipster Utterback, is a citizen See State v. supra. reliable informant. his or her by against The detailed no statement C/C affidavit likeli- have tended to increase the might interest which penal id. The information C/C was true. See supplied by hood that the sold not indicate how or C/C knew that Ortiz why affidavit did The whether his affidavit did not state apartment. cocaine from C/C had been inside the cocaine apartment, purchased and when See, Ortiz, or sale Ortiz. during drug from been present Utterback, State v. Lytle, supra; supra. State v. affidavit recite that had confirmed that Ortiz did

lived at the address C/C and that Ortiz’ provided by appearance address matched the C/C. Ortiz’ general description supplied by not, are neutral facts which do without description and physical See, Flores, more, State v. State v. imply criminality. supra; Utterback, not gen- Corroboration this information did supra. to establish cause Ortiz enough probable erate information that committed, commit, had or was about to a crime. Id. included The affidavit information records that had a conviction in 1991 and Ortiz had been prior Ortiz arrested in but that these were The infor charges dropped. Ortiz’ regarding drug-related mation criminal be history may considered relevant information which be could properly included the affidavit to demonstrate by police probable cause. State v. Hodge Carpenter, 225 Neb. N.W.2d (1987), disapproved part on other State v. grounds, Johnson, However, 256 Neb. with out criminal proof present activity, information about Ortiz’ criminal activity lacks and did past temporal significance probable itself create cause believe that Ortiz was cur rently same engaged genre any criminal conduct See, criminal conduct which had led to his prior conviction. Johnson, Reeder, supra; cert, N.W.2d 429 denied 519 U.S. 136 L. Ed. 2d 397. case,

In this affi- permissible information contained warrant, davit submitted support issuing consist- C/C, of the information ing supplied by Ortiz’ and cer- history, life, tain innocent details of Ortiz’ failed to demonstrate a totality circumstances established cause. We circumstances,” “totality cannot that the say see Illinois v. Gates, (1983), 103 S. Ct. 76 L. Ed. 2d 527 alert, without of the canine sufficient provided consideration warrant. it was basis for the issuance of Because cause, issued the search warrant was constitu- without has that we consider the tionally defective. The State not asked Leon, United good faith under States exception and, 2d 82 L. Ed. we accordingly, do analysis. such an engage

(d) Outcome This Case evidence seized a defective warrant must be pursuant Fitch, suppressed. sum,

(1998). In the trial court’s rulings the motion to denying erroneous, suppress admitting challenged evidence were reversed, and the and the cause is for a judgment remanded new trial.

VI. CONCLUSION The Fourth Amendment embodies the centuries-old principle respect for home. Under the federal Constitutions, Nebraska for a canine sniff illegal drugs con- ducted at the threshold aof detects dwelling regard- information home, ing the contents inside the and an individual has a legiti- mate expectation privacy inside the home even as to these unworthy contents. Under the Fourth Amendment and Neb. Const, I, art. an occupant legitimate has § some measure of hallway outside immediately his or her or at the threshold of his or her home. Given such constitutional protection, before drug-detecting canine home, can be to test the deployed threshold the officers reasonable, must possess at a minimum suspicion articulable that the location to be tested illegal contains drugs.

We have concluded the instant case that to the due absence reasonable, it suspicion, articulable was for improper to the threshold of Ortiz’ go residence for the sole pur- pose of deploying a canine to sniff existence illegal case, drugs alia, inside home. In anonymous this inter tip, reasonable, did not provide articulable would constitutionally a canine sniff justify investigation immediately outside an individual’s dwelling. The result of the canine alert the affidavit sufficiency the evaluating disregarded

must be warrant, affidavit and the residue of the the search support warrant. cause to issue a search probable not amount to did of the war- to issuance justify cause no probable There was consti- warrant was The search Ortiz’ apartment. rant to search unconstitutional the fruits of the Because defective. tutionally excluded, in over- trial court erred been the have search should evidence seized pursuant the suppress Ortiz’ motion ruling trial at trial. The that evidence admitting and the search and the was error suppress the motion ruling denying court’s error, thus, the was and evidence admitting challenged the ruling reversed, cause is court is and the of the district judgment this opinion. new trial consistent with remanded for a a new trial. Reversed and remanded for J., concurring Connolly, disagree but with the conclusion I the result concur outside an that a canine sniff performed majority inside drugs apartment may located that detecting the purpose warrant based on reasonable suspicion. without a be performed of a at threshold of a I hold that the use canine the would item found inside that constitutes dwelling to detect an dwelling search, of the Fourth protection thus triggering one Due to the heightened expectation Amendment. I would the standard dwelling, apply principle has in his or her few circum- narrowly exigent that absent only prescribed stances, must be to a dwelling pursuant the search of made cause. warrant based on (1) instant case are whether a canine sniff of The issues detect of a is utilized to dwelling presence the exterior dwelling constitutes a search or seizure of contraband inside reasonable, i.e, so, (2) if the search was whether the and whether can nature of search and the fact that it limited intrusive act to lower the standard from probable detect contraband only cause to reasonable suspicion. THE FOURTH AMENDMENT

WHETHER

IS IMPLICATED state conclusively fails to how the majority protections to Ortiz. the majority Fourth Amendment As apply correctly Const, I, 7, states, pro- Fourth art. § Amendment and if hibit seizures. no Obviously, unreasonable searches and only occurred, Ortiz not claim the or seizure could protections Amendment, See, e.g., of the Fourth would end. inquiry 1989) (D.C. (canine sniff was U.S. v. 878 F.2d Colyer, not search therefore neither reasonable nor prob- able Because clear that did cause was it is a seizure required). not take the instant case where there was place nothing tangi- ble detained I police, my only taken or focus inquiry Karo, whether a United search occurred. States See, 2d S. Ct. L. Ed. State generally, Cox, (1995) rela- (discussing tion interests determination of whether seizure property occurred). has stated,

theAs this court has relied on majority traditionally States, 347, the enunciated in principles United 389 U.S. Katz 507, (1967), 88 S. Ct. 19 2d L. Ed. when considering See, also, whether Fourth Amendment are protections involved. Havlat, 554, State v. (1986) (dis- Neb. 385 N.W.2d 436 Katz). A cussing right to the person’s invoke protection the Fourth Amendment as to unreasonable searches and seizures depends not upon property right the invaded place, but upon whether person the who claims Fourth protection the Amendment has a legitimate expectation privacy Katz, Harms, 882, invaded place. supra', 233 Neb. N.W.2d 1 Although the Fourth protects Amendment people, places, not one cannot understand an individual’s pri- Katz, vacy expectations without reference to a place. supra “ J., (Harlan, Thus, we held concurring). have that ‘[ojwnership and .possessory rights “places” are still in deter- important whether or mining particular not a person has a legitimate ” expectation Harms, particular in a place.’ 233 Neb. 888, at at N.W.2d 5.

I there concede is a split authority whether regarding canine sniff constitutes a search. on the Relying dicta United Place, 696, 2637, States v. 462 U.S. 103 S. Ct. 77 Ed. 2d L.

(1983), which stated that a canine sniff of luggage that was detained in a did public not airport constitute a within search Amendment, of the Fourth meaning the federal courts over- See State v. sniffs are not searches. hold that canine whelmingly 365, Waz, (1997) federal (citing 292 A.2d 1217 240 Conn. relied on Place to determine cases). have also previously We not constitute mail did express package a canine sniff of an that Morrison, 469, 500 N.W.2d 547 a search. State v. Johnson, 256 (1993), grounds, other on disapproved Place, United (1999). In addition to Jacobsen, 80 L. Ed. 2d 466 U.S. 104 S. Ct. States v. that police techniques made it clear some types as sniffs are not searches dog protected such as tests field limited nature of Amendment because of the under the Fourth if tech- Jacobsen further indicated that the intrusion. contraband, or absence of reveals only presence nique used to be a search. technique Court does not view are also divided on the issue. Some courts con- State courts clude, constitution, of their state that canine usually the basis However, sniffs constitute searches. other courts the rea- apply do of Place and Jacobsen conclude that canine sniffs soning a search. The of Place and Jacobsen is reasoning constitute criticism, of which I find not without some relevant instant case. Jacobsen,

First, as Justice Brennan noted his dissent when the focus is on the nature of the item and revealed sought sniff, the use of a is that indi- through dog resulting theory have due viduals no reasonable fact stated, are contraband. As they carrying Justice Brennan this contrary to the “fundamental principle prose- ‘[a] cuted in violation of the Constitution is not made lawful what ” Jacobsen, it 466 U.S. brings light.’ at quoting Byars States, United L. 71 Ed. 520 the ignores Such a focus also articulated in v. principles Katz States, United 389 88 S. Ct. 19 L. U.S. Ed. 2d 576 (1967), in which the Court held that Katz had legitimate in of his expectation telephone regardless conversation of of illegality of the content that conversation. “What a per- son to the in knowingly exposes public, even his own home or office, is not a of Fourth subject Amendment But protection.... he seeks to as what even in an area accessible preserve private,

[811] Katz, to the be 389 U.S. public, may constitutionally protected.” at 351-52.

I sniff is that a less intrusive than agree dog undisputably “full-blown” search due to its ability identify only pres- However, as illustrated by ence absence of contraband. Justice and this court’s reliance Brennan’s dissent Jacobsen Katz, this distinction alone enunciated principles factor whether a deciding considering should not be the when sniff this to become the fac- deciding constitutes search. Were tor, cir- any the court would act to foreclose consideration very cumstances under the sniff was conducted and “may which well law [pave] the override the limits of way technology Jacobsen, in the area criminal at 137- investigation.” U.S. J., See, also, Hall, (Brennan, Walker dissenting). Hope Sniffing Out the Fourth Amendment: United States v. Place— Ixiter, Dog Years L. Rev. Maine To Sniffs—Ten the extent that a few cases appear consider the ability canine sniffs to only detect contraband as the factor deciding circumstances, I without other find the considering reasoning See, Reed, those cases to be U.S. v. F.3d 644 unpersuasive. (6th 1998); (9th Cir. U.S. 997 F.2d 632 Cir. Lingenfelter, 1993); (D.C. 1989). U.S. F.2d Colyer, Cir.

More important, Court left unclear whether Supreme canine sniffs do not constitute searches when only conducted areas such as where the on the airports, Hall, part lowered. See This passengers already supra. is an noted, distinction as important because one author has the large of federal court decisions majority address sniffs the con- dog text of or other outside of the luggage public areas defendant’s personal residence. Such cases require only plain application Place, of the 2637, dicta United States v. However,

77 L. Ed. 2d 110 when a sniff occurs the context of an area where there is a heightened expectation Circuit, courts, privacy, Second with state con- along many Hall, cludes that such sniffs do constitute searches. See supra cases). I (listing find cases to be reasoning these convinc- ing. Thomas, (2d

In United 1985), States v. 757 F.2d 1359 Second Circuit held that a canine sniff conducted at the thresh-

[812] old of an constituted a search of apartment under Constitution, the U.S. requiring warrant based upon probable cause. the court held: Specifically,

Here the defendant legitimate had a that the expectation contents of his closed apartment would remain private, they could not be “sensed” from outside his door. Use the trained dog impermissibly intruded on that legitimate expectation. Supreme Court Place found “that only the particular course of investigation that the agents intended to pursue exposure respondent’s lug- here — which was located in gage, a public place, to a trained canine —did not constitute a ‘search’ within the meaning the Fourth Amendment.” . . . Because of [the defendant’s] heightened privacy inside his dwelling, the canine sniff at his door constituted a search.

Thomas, Thus, 757 F.2d at 1367. the Thomas court stated:

It is one thing say that a sniff in an airport is not a search, but quite another to say that a sniff can never be a search. The question always be asked is whether the use dog trained intrudes on a legitimate expectation of privacy.

Id. at 1366.

Other federal circuits have reconciled the holding Thomas that the issues in noting the cases had they under considera- tion did not involve an area such as a where dwelling the expec- tation of I heightened. believe this implicitly acknowl-

edges that there may be some sniff instances in which a canine might See, be considered a Stone, search. U.S. v. e.g., 866 F.2d (10th 1989) 359 Cir. Thomas, (distinguishing United States v. (2d 757 F.2d 1985), 1359 Cir. on basis of heightened expecta- Whitehead, tion of privacy); U.S. 849 (4th F.2d 1988) (distinguishing sleeping car on train from dwelling Thomas, United States v. supra, and stating, “Place obviously indiscriminate, did not sanction the blanket use of trained dogs contexts”), all abrogated part on other grounds, Gozlon- States, v. United Peretz 111 S. Ct. L. Ed. Thomas, 2d (1991); U.S. v. 787 F. (E.D. Supp. 663 Tex. 1992) inside (placing dog trunk and passenger compartment of vehicle constituted invasion into area where there was expecta- also, Hall, See, Walker Out the Hope Sniffing tion of privacy). United States v. Dog Fourth Amendment: Sniffs—Ten Place — Later, cases). (1994) (discussing Years 46 Maine L. Rev. 151 See, as well. distinction has been noted state courts This (1994) (noting P.2d State 123 Wash. 2d Young, cases where were not involved prior that residences private sniffs); warrantless dog courts Washington approved appellate Dearman, (1998) (dog 962 P.2d 850 92 Wash. App. based on residence warrant garage required sniff of private cause). a canine sniff for narcotics be less intrusive Although may only methods and will disclose investigatory relation to other narcotics, it remains a detect- way the or absence presence use of of a the ing space. Through the contents enclosed private, what is con- a able to obtain information about dog, officers are not obtain their utilizing tained within a that could dwelling they is not a dog the officer’s use a “Consequently, own senses. smell, eye- of their sense of as ordinary mere improvement vision, enhancement accom- but is a glasses significant improve different, instrument.” sensory a and far plished by superior, See, also, Dearman, Thomas, App. 92 Wash. 757 F.2d at 1367. goes (“using dog beyond at 962 P.2d at 853 a narcotics and, effect, senses allows natural human merely enhancing ‘ ”); State the walls” of the home’ through officers to “see Pellicci, (1990) (canine sniff of A.2d 710 N.H. discerned not other- something vehicle is because dog search senses). their own through wise to officers apparent addresses whether they The in the instant case never majority conducted at the threshold of Ortiz’ consider the canine sniff Rather, Ortiz majority to be a search. the states that apartment applies the hallway had some expectation standard whether the sniff reasonable to determine I with this As illustrated disagree reasoning. was reasonable. Thomas, (2d 1985), F.2d 1359 United States v. others, Dearman, in the instant case was not dog supra, Rather, it used to was hallway. used to locate contraband apart- there contraband inside Ortiz’ determine whether was illustrates, the loca- As the second of this concurrence part ment. the contents of the to determine attempting tion the dog consideration whether determining be a when may apartment reasonable, but it fact change search was does something officers canine to locate inside a private used the Thus, Ortiz’ in his dwelling. apart- it is case, Under the I agree ment that is at facts of the instant issue. with the of Thomas and other authorities that a canine reasoning of an sniff at the threshold constitutes search of that the Fourth Amendment. involving thus apartment, Accordingly, I would hold the canine sniff in instant case constituted search.

WHETHER CANINE OF SNIFF REQUIRES DWELLING WARRANT search, canine sniff in instant case constituted a thus next issue to be determined is that search whether was rea- I agree majority sonable. with to the extent that they deter- However, mine the search was I unreasonable. with disagree their that a canine sniff reasoning may performed be an apart- ment for the hallway purpose contraband inside the detecting reasonable, without a based on dwelling warrant articulable sus- I picion. Although recognize that such warrantless may appropriate be circumstances where expectation the of pri- lower, is I a search of vacy believe a must dwelling be conducted to a issued on of pursuant warrant the basis probable cause. Although the there majority recognizes that greater a of a expectation of privacy dwelling than a less inti- objects nature, mate or the transient nevertheless majority balances the interests of the and the individual government conclude that a warrantless intrusion based on reasonable suspicion was the I appropriate disagree standard. with this analysis two rea- First, ignores sons. the the analysis principle searches and seizures without a warrant are presumptively unreasonable. See York, 573, 1371, Payton v. 445 New U.S. 100 S. Ct. 63 L. 2dEd. Second, if even a balancing interests is consid- when ered a canine sniff occurs in circumstances involving I dwelling, believe interests of the the privacy the individual outweigh the government’s interest in utilizing a canine sniff on less dwelling anything than a standard of probable cause. ‘“ “[fjreedom

It cannot be denied that from intrusion into the home protection is the dwelling archetype privacy ’ ” secured by Fourth Amendment.” U.S. at 587. Payton, such, As

[tjhe Fourth Amendment the individual’s protects In variety settings. none is the zone more defined clearly than when bounded unambiguous dimensions of an physical individual’s home—a zone that finds its roots in clear and constitutional terms: specific “The to be secure their . . . right people houses . . . not shall be violated.” That language unequivocally establishes the proposition that core very “[a]t [of Fourth stands the right a man retreat Amendment] home into his own and there be free from unreasonable States, governmental intrusion.” Silverman v. United 505, 511. Fourth has Amendment drawn a firm [T]he line at the to the entrance house. Absent exigent circum- stances, that threshold may reasonably be crossed without a warrant.

Payton, 445 U.S. at 589-90. we have held Accordingly, that a warrantless search must be strictly confined exigencies which its initiation. v. justify Illig, State Arizona, (1991), N.W.2d 375 v. citing Mincey 437 U.S. S. Thomas, Ct. 57 L. Ed. 2d 290 United States (2d 1985), Dearman, 757 F.2d 1359 and State v. 92 Wash. App. (1998), 962 P.2d 850 both concluded that a canine sniff of an which involved area a heightened pri- and, therefore, constituted a vacy required warrant based on This probable cause. view is supported by Arizona Hicks, 94 L. Ed. 2d 347 in which the U.S. Supreme Court was unwilling expand view plain doctrine allow for a warrantless “cursory inspec- tion” or less than something a “full-blown search” within a home basis of reasonable suspicion. U.S. at 328. The Court stated: “We are unwilling to send and judges into a law, new thicket of Fourth Amendment to seek a creature of uncertain is description that neither a ‘plain view’ nor inspection ” yet a ‘full-blown search.’ 480 U.S. at 328-29.

[816] sniffs, it has been suggested

In of canine the context in decid- be a factor determining should object area or searched warrant based must be a supported sniff ing dog whether of home person For example, cause. probable However, a search level of protection. receive the greatest should less intrusive because necessarily airport of at luggage might and thus passengers of are lowered expectations privacy Kenneth L. See suspicion. on reasonable be based permissible Pollack, Search Doctrine Terry Stretching Constitutions, and the State Sniffs, Canine Evidence Crime: of Standard, L. 47 Vand. Rev. 803 Reasonable Suspicion standard suspicion that have reasonable adopted

Courts under the facts presented, have so on the basis that done to a diminished of expectation pri- search was reasonable due searched, the of the law enforce- vacy importance in the thing stake, dog ment and the minimal intrusiveness interests at Whitehead, (4th 1988). sniff. F.2d As a U.S. v. 849 849 Cir. result, sus- adopt most of the cases that a standard of reasonable outside of an involve canine sniffs that occurred areas picion were individual’s residence and where expectations privacy Whitehead, See, train e.g., (passenger sleep- lower. U.S. v. supra State, (Alaska Pooley P.2d 1293 ing App. v. 705 compartment); (checked 886 280 1985) airline v. P.2d luggage); People May, Unruh, (Colo. 1994) mail P.2d v. (express package); People Waz, 1986) (safe in (Colo. custody); (1997) (U.S. 292 A.2d mail Conn. State parcel); Pellicci, (1990) (automobile); 133 N.H. 580 A.2d 710 Com. Johnston, (rented (1987) Pa. 530 A.2d storage courts, however, area). locker Other indicate that the public cause would in cases higher applied standard be a dwelling the search of where the involving expectation pri- Whitehead, vacy supra was See U.S. v. that rea- higher. (holding sonable standard because com- applied train sleeping analogous higher was not partment expectation also, See, Waz, room). hotel sniff supra (distinguishing heightened mail seen parcel Thomas)-, (8th 1997) 122 F.3d Roby, U.S. v. J., (“[w]hile (Heaney, dissenting) the use of dogs trained justifiable detect narcotics is or other airports public areas it should be intru- permit ... extended governmental room”). of sion into the a hotel privacy Of a from interest is of cases the particular pair Supreme Court of which Pennsylvania reasoning illustrate the behind a warrant based on cause a requiring probable dwelling when is the of person object the search but a war- perhaps allowing rantless search based on suspicion reasonable when the privacy on, are interests lessened. The the majority instant case relies from, a the provides lengthy quote case Pennsylvania Johnston, Johnston, In supra. the Court of Supreme determined that a sniff a Pennsylvania canine of public storage locker did not constitute a search under the U.S. Constitution but did constitute a search under the state constitution. The court then stated that it was unwilling apply balancing interests in order to determine whether sniff constituted a search determination, because when making that the balance had been However, struck the Fourth by Amendment itself. the court did find balancing the inquiry appropriate determining whether the necessarily canine sniff search the involved “full-blown” warrant requirements Fourth Amendment. The court stated that much of the law utility enforcement would be dogs lost if “full-blown” warrant procedures were but also required recognized that there had to be some restraint on the use case, them. The court then concluded under the facts the the warrantless search of the locker permissible was because the officers had articulated a might reasonable that drugs be located in the locker storage officers were lawfully situated when they conducted the search.

Although the majority provides a opinion lengthy quote Johnston, it does not cite the supra, Pennsylvania later case Martin, Martin, Com. v. 534 Pa. 626 A.2d 556 In warrantless canine sniff search was conducted on a satchel car- ried The individual. court stated that the “middle ground” taken Johnston was approach appropriate that case because minimal, intrusion police was because the intrusion was directed at solely contraband and because drugs, much of utility detection would drug dogs be lost if a warrant Martin, was 534 Pa. required. at 626 A.2d at 560. The court noted, however, then that the protection interest of Fourth object is a principal in their person one has inter- heightened Based this protection. Amendment est, sniff search in order to conduct a canine held that court must have cause to believe that on a person, and that further search any contraband the search will uncover Ohio, 1, 88 Terry allowed person beyond to war- 2d 889 must be pursuant 20 L. Ed. S. Ct. rant, for a subject detain the reasonable could although police further stated: the warrant. court they time while sought inter- government compelling are mindful that has a We into our illegal society, the flow of eliminating drugs est in to the to rid of society do seek frustrate effort and we not not even in the things permissible But all are scourge. this The Constitution of a state interest. compelling pursuit government’s not to exist because the merely does cease A is state does not arise when- police interest compelling. fact, of In gets today’s holding crime out hand. all ever proba- is what should themselves insist on: requires to that crime has committed or ble cause believe a been intrusion, found there contraband is to be before is a by and into one’s Terry, Johnston beyond permitted if cannot remain free society police may free person. [A] dogs detection or other crime detection device drug any use today restraint. restraint which we impose without use of detection searches of is mod- drug dog persons the of our enough, light est constitutional mandate. Thus, Martin, 534 Pa at 626 A.2d at 161. it is clear that the Court, when cases Pennsylvania Supreme dealing involving with of heightened expectation privacy, requires a cause. I rule the search of an allowing believe a warrantless canine based is and suspicion illogical on reasonable apartment Johnston, stated court in Com. v. Justifications the improper. most for the adop- 515 Pa. A.2d 74 and others are (1) tion of a reasonable standard cases involv- such are searches of or items as ing public places luggage transit, is in those there a diminished of expectation privacy items; (2) that the of will utility drug-detecting dogs the concern (3) are the of required; be lost if warrant nature procedures and i.e., intrusive, not opening the is not it does the of require search or to can object place being the entrance searched only detect contraband. case, heightened

In the of is expectation privacy instant it a because involves residence. The protection of their their expectation person an individual has are the Fourth Amendment. The dwelling protections the core recognize this but moves from the majority appears away issue Ortiz’ by referring hallway. discussed, I believe this is flawed. As reasoning previously a It hallway. search instant case was not search was search specifically aimed at inside Ortiz’ contents apartment. area, Additionally, the difference between a or an item public transit, and building hallway significant. While it is guests, shared residents of the and their building it does not the traffic of an experience airport public other area. The existence should limit the semipublic hallway expectation of in their privacy person has As one apartment. stated, “I justice has do not believe that the Fourth Amendment those can afford live in protects only persons who a single- family residence with no common surrounding space.” J„ (8th 1997) Roby, F.3d (Heaney, dissenting).

Next, little of the drug detection utility dogs is lost by requiring prior warrant the canine sniff a dwelling, this although is a concern in serious cases and airport security items being sent mail. For example, expectation of pri- vacy in is luggage lower than in dwelling, while the in police interests canines to utilizing detect contraband luggage quite high due to the transient nature of issue, When object searched. item transient is at officers do have simply not the time to opportunities necessary observe the owner point where luggage Thus, cause could be established. the use canine is great utility to officers cases with facts such as those in United Place, States v. 77 L. Ed. 2d 110 only but is one a number of investigative available tools when a dwelling is concerned. although a sniff is

Finally, canine less certainly intrusive than search, “full-blown” it is error to rely this factor cases alone, Amendment Standing core Fourth involving protections. this factor is not a warrantless strong enough justify allowing canine sniff of a based on reasonable To so dwelling suspicion. hold would be tantamount that the stating protections Fourth become lessened due to Amendment advances inves- tigative This is a that I procedures. position willing am Therefore, I subscribe to. concur the result. appellant Elstun, cross-appellee,

Denise D. appellee cross-appellant. Elstun, Michael D.

600 N.W. 2d 835 8, 1999. Filed October No. S-97-892.

Case Details

Case Name: State v. Ortiz

Court Name: Nebraska Supreme Court

Date Published: Oct 1, 1999

Citation: 600 N.W.2d 805

Docket Number: S-98-568

Court Abbreviation: Neb.