Lead Opinion
I. NATURE OF CASE
Eddie R. Ortiz, Jr., was convicted of two counts of unlawful possession with intent to deliver controlled substances and sentenced accordingly. Ortiz appeals from the trial court’s order admitting evidence over his objection, which evidence Ortiz claims was obtained in violation of U.S. Const, amend. IV and Neb. Const, art. I, § 7.
As explained more fully below, the canine sniff for illegal drugs which was conducted at the threshold to Ortiz’ apartment where Ortiz had a legitimate expectation of some measure of privacy violated the Fourth Amendment and Neb. Const, art. I, § 7. Although a canine may be deployed to test for illegal drugs in some cases, doing so at the threshold of a dwelling on less than reasonable, articulable suspicion is improper. In this case, the information obtained by the alert of the canine must be excised from the affidavit in support of the search warrant. The residue of the affidavit did not amount to probable cause for the issuance of a search warrant, and the contraband seized pursuant to the defective search warrant must, therefore, be suppressed.
We conclude on the facts of this case that the search of Ortiz’ apartment was constitutionally flawed and that the contraband recovered should have been excluded. We reverse, and remand for a new trial consistent with this opinion.
II. STATEMENT OF FACTS
Sometime during the early evening of August 7,1997, Omaha police received a telephone call from a concerned citizen (C/C) who told police that she or he “knew of’ Ortiz and alleged that Ortiz “has been active in distributing cocaine from his apartment within the past year.” Police were given Ortiz’ address and a general physical description of Ortiz by C/C. The record indicates that at the time the call was received, Ortiz was not a suspect.
Police verified that Ortiz had lived at the address given by the caller for about 2 years. The police checked their internal records, which showed that Ortiz had a prior conviction in 1991 for possession of a controlled substance, for which he had been sentenced to a 6-month term of imprisonment, and that a concurrent charge had been dismissed. The police records also
At about 8:45 p.m. on the same evening, police officers took Pogo, a police dog specially trained to detect the scents of marijuana, cocaine, cocaine base, methamphetamine, amphetamine, and heroin into the hallway outside Ortiz’ apartment to perform a canine sniff of the area. The officers ran Pogo in the hallway outside Ortiz’ apartment, and Pogo “alerted” by the door to Ortiz’ apartment.
On August 8, 1997, officers applied for and obtained a “no-knock” daytime search warrant which entitled them to search the interior of Ortiz’ apartment. The affidavit and application for search warrant submitted by the police officers read, in pertinent part, as follows:
That the following are the grounds for issuance of a search warrant for said property and the reasons for the Affiant’s belief, to-wit:
On Thursday, 7 August 1997 in the evening hours, Affiant Officer LANG was contacted by a concerned citizen, hereafter referred to as the C/C. The C/C advised that he/she knew of an individual by the name of Eddie ORTIZ, described as an Hispanic male, mid-twenties, with a small build, who resides at 809 South 70th Street, Apt. #6. The C/C stated that ORTIZ is active in distributing cocaine from his apartment. The C/C stated that ORTIZ has been active in distributing cocaine from his apartment within the past year. The C/C who provided this information did not request any type of monetary compensation for providing this information.
On Thursday, 7 August 1997 at approximately 2045 hours, Officers KUNZE, LANG, and HENRY of the Narcotics Unit went to the address of 809 South 70th Street, Apt. 6. Officer HENRY is the drug canine handler of POGO who was utilized at the address to detect the presence of narcotics. Officer HENRY ran POGO by the apartment door at which time POGO alerted to the presence of narcotics. Officer HENRY advised that POGOmade a positive alert for the presence of narcotics from Apartment #6.
Another paragraph in the affidavit, not repeated here, described Pogo’s training, the adequacy of which is not relevant to our resolution of the appeal. The affidavit also included the results of the officers’ records check and the fact that Ortiz had resided at the apartment since July 1, 1995.
Based on the affidavit offered by police, on August 8,1997, a Douglas County Court judge issued a warrant authorizing the officers to search Ortiz’ apartment for cocaine and related paraphernalia, cash, and weapons. Shortly thereafter, the police officers executed the warrant. Within Ortiz’ apartment, the officers found one-quarter of an ounce of cocaine and $6,300 in a kitchen drawer, 4 ounces of marijuana and $11,000 in a freezer, and a notebook containing records of suspected drug transactions.
Ortiz was not present when the officers searched his apartment. After the officers concluded the search, they left a business card with a telephone number at which they could be reached. The police kept Ortiz’ apartment under surveillance for an unspecified period, but Ortiz did not appear, and the police subsequently abandoned the surveillance.
Ortiz voluntarily presented himself to police on August 18, 1997. He was charged with possession of cocaine with intent to deliver, a Class II felony in violation of Neb. Rev. Stat. § 28-416(l)(a) (Reissue 1995) (count I), possession of marijuana with intent to deliver, a Class III felony in violation of § 28-416(l)(a) (count II), and possession of money/currency used to facilitate the distribution of illegal narcotics, a Class IV felony in violation of § 28-416(16) (count III).
Ortiz filed a motion to suppress all of the evidence seized from his apartment, claiming, inter alia, that the search warrant was not supported by probable cause. The district court for Douglas County overruled the motion on November 6, 1997, finding that the affidavit police submitted in support of the search warrant adequately described Pogo’s training and reliability as a drug-sniffing canine and that Pogo’s alert in the hallway outside of Ortiz’ apartment door provided police with probable cause to obtain the search warrant.
III. ASSIGNMENT OF ERROR
Restated, Ortiz claims on appeal that the trial court erred in admitting into evidence the items seized from his apartment as a result of the police search.
IV. STANDARD OF REVIEW
A trial court’s ruling on a motion to suppress evidence, apart from determinations of reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless searches, is to be upheld on appeal unless its findings of fact are clearly erroneous. In making this determination, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Johnson,
V.ANALYSIS
1. Probable Cause to Issue Search Warrant
A search warrant, to be valid, must be supported by an affidavit which establishes probable cause. State v. Johnson, supra. “Probable cause” sufficient to justify issuance of a search warrant means a fair probability that contraband or evidence of a crime will be found. State v. Craven,
In reviewing the strength of an affidavit submitted as a basis for finding probable cause to issue a search warrant, an appellate court applies a “totality of the circumstances” rule whereby the question is whether, under the totality of the circumstances illustrated by the affidavit, the issuing magistrate had a substantial basis for finding that the affidavit established probable cause. State v. Detweiler,
Where an affidavit in support of a search warrant is inadequate to establish probable cause, the search warrant is constitutionally defective. State v. Johnson, supra. Where a search is conducted pursuant to a constitutionally defective warrant, the evidence obtained in the search must be excluded. State v. Fitch,
The affidavit submitted by police in the instant case to obtain a warrant to search Ortiz’ apartment consisted of two principal components: the results of the canine sniff by Pogo, the trained police dog, in the hallway outside Ortiz’ apartment door and a description of the call police received from C/C, coupled with further facts supplied by the police. We address each component below.
2. Expectation of Privacy at Threshold of Dwelling and Requirement of Reasonable Suspicion to Deploy Canine to Sniff for Illegal Drugs at Threshold of Dwelling
It has been observed that the right of privacy associated with the home under the Fourth Amendment is “one of the unique values of our civilization.” McDonald v. United States,
“In 1604, an English court made the now-famous observation that ‘the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.’ Semayne’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K. B.).”
Wilson v. Layne,
The leading case regarding canine sniffs is United States v. Place,
The Court in Place stated that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. The Court in Place observed that a canine sniff is sui generis in that the canine alert is limited to the existence of contraband and that the sniff is not highly intrusive. The Place Court determined that the canine sniff of the luggage did not, by itself, violate the Fourth Amendment. Id. The Place Court concluded, however, that because the police detained the luggage for a lengthy period and failed to diligently pursue the investigation, the cocaine discovered in Place’s luggage pursuant to the search warrant should have been suppressed.
In analyzing the facts of the case, the Place Court observed that a seizure of Place’s luggage might be justified within the exception to the Fourth Amendment in Terry v. Ohio, 392 U.S.
Reasonable suspicion, commonly required to support a seizure or detention, Alabama v. White,
Following United States v. Place, supra, in canine sniff cases in a variety of settings such as canine sniffs of luggage, packages, and public warehouses, the majority of courts have approved of the admission of evidence gained by the use of a canine sniff if the canine sniff evidence was obtained based on a reasonable, articulable suspicion. See State v. Waz,
We believe that there is a Fourth Amendment middle ground applicable to the investigations conducted by police handlers of narcotics detection dogs. On the one hand, much of the law enforcement utility of such dogs would be lost if full blown warrant procedures were required before a canine sniff could be used; but on the other, it is our view that a free society will not remain free if police may use this, or any other crime detection device, at random and without reason. Accordingly, we hold that anarcotics detection dog may be deployed to test for the presence of narcotics ... where:
(1) the police are able to articulate reasonable grounds for believing that drugs may be present in the place they seek to test; and
(2) the police are lawfully present in the place where the canine sniff is conducted.
Our holding is based in part, on considerations not dissimilar to those stated in United States v. Place: a canine sniff-search is inherently less intrusive upon an individual’s privacy than other searches such as wiretapping or rummaging through one’s luggage; it is unlikely to intrude except marginally upon innocent persons; and an individual’s interest in being free from police harassment, annoyance, inconvenience and humiliation is reasonably certain of protection if the police must have a reason before they may . . . utilize a narcotics detection dog.
Com. v. Johnston,
With respect to canine sniffs in hallways adjoining residential quarters, the type of sniff which is the subject of the instant case, 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 sniff in a residential hallway must be supported by at least a reasonable suspicion based on articulable facts. Thus, for example, in People v. Dunn, 11 N.Y.2d 19, 26,
The above-quoted material from People v. Dunn, supra, recognized that “we cannot forgive the requirements of the Fourth Amendment in the name of law enforcement [and] it is not asking too much that officers be required to comply with the basic command of the Fourth Amendment before the innermost secrets of one’s home .. . are invaded.” Berger v. New York,
For the sake of completeness, we note that some courts have held that there is no legitimate privacy expectation in a residential apartment hallway and that thus, canine sniffs do not implicate the Fourth Amendment. See, e.g., Brown v. U.S.,
We agree with the courts which conclude an individual’s Fourth Amendment privacy interests may extend in a limited maimer beyond the four walls of the home, depending on the facts, including some expectation of privacy to be free from police canine sniffs for illegal drugs in the hallway outside an apartment or at the threshold of a residence, and that a canine sniff under these circumstances must be based on no less than reasonable, articulable suspicion. As described more fully below, under the facts of this case, we conclude that, given the legitimate expectation of some measure of privacy in the hallway, the canine sniff for illegal drugs which lacked reasonable suspicion violated the Fourth Amendment and Neb. Const, art. I, § 7. Our reasoning is similar to that in Katz v. United States, 389
3. Application of Law to This Case
(a) Existence of Expectation of Privacy in This Case
In the instant case, we recognize that the canine sniff was not conducted inside the apartment; however, the information gained by the canine alert as to the existence of contraband inside the apartment emanated from inside the apartment and was detected outside at its threshold. In this regard, it has been held that “[indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of Fourth Amendment oversight.” United States v. Karo,
In connection with assessing the expectation of privacy in Ortiz’ hallway for Fourth Amendment and Nebraska constitutional purposes, we note that the “ ‘Fourth Amendment protects people, not places' ” (Emphasis in original.) State v. Havlat, 222 Neb. 554, 558,
In cases such as the one before us, to determine whether an individual has an interest protected by the Fourth Amendment and Neb. Const, art I, § 7, one must determine whether an individual has a legitimate or justifiable expectation of privacy in the place subjected to canine scrutiny. Ordinarily, two inquiries are required. First, the individual must have “ ‘exhibited an actual (subjective) expectation of privacy,’ ” and second, “the expectation is one that ‘society is prepared to recognize as “reasonable.” ’ ” Hudson v. Palmer,
Reasonable expectations of privacy vary according to the context of the case, O’Connor v. Ortega,
In assessing the privacy interest in the apartment hallway, we must evaluate whether, under the circumstances, the area of the hallway should be placed under the home’s “ ‘umbrella’ of Fourth Amendment protection.” United States v. Dunn,
We recognize, as noted earlier in this opinion, that the authorities are split as to whether an occupant has a reasonable expectation of privacy in the hallway outside his or her apartment. We agree with the courts which hold that there is some measure of privacy at the threshold of an apartment dwelling. For example, in People v. Killebrew, 16 Mich. App. 215, 218,
Where the police unaccompanied by a canine are merely pursuing an investigation, it has been held that they may go to the stairway leading to an apartment, State v. Breuer,
In contrast to the officers’ observations obtained by plain view, the use of a canine such as occurred in this case is “not a mere improvement of [the officers’] sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different, and far superior, sensory instrument.” United States v. Thomas,
The canine sniff for illegal drugs in this case transpired in a location in which Ortiz had a legitimate expectation of some measure of privacy, and therefore, the intrusion is subject to the Fourth Amendment and Neb. Const, art. I, § 7, and we have concluded that the officers needed at a minimum reasonable suspicion before proceeding with the canine sniff. The investigative tool of the canine sniff at the threshold of a dwelling may thus be used where it is preceded by information amounting to reasonable, articulable suspicion. As detailed below, we determine that the officers lacked reasonable suspicion to take Pogo into the hallway outside Ortiz’ apartment door in this case.
With respect to the existence of reasonable suspicion, we have explained that reasonable suspicion entails some minimal level of objective justification which is more than an inchoate and unparticularized suspicion or hunch, but less than the level of suspicion required for a finding of probable cause. State v. Johnson,
A review of decisions of other courts regarding canine sniffs, albeit in nonresidential settings, is helpful in illustrating the types of facts which amount to reasonable suspicion sufficient to justify a canine sniff. Common threads in such cases as U.S. v. Mondello,
We examine in the instant case whether the police had at least reasonable, articulable suspicion to bring Pogo into the hallway outside of Ortiz’ apartment to conduct the canine sniff, which sniff is subject to the Fourth Amendment and the Nebraska Constitution. If the police were in possession of information amounting to reasonable suspicion when the canine sniff was conducted, the results of the sniff can be considered in evaluating the existence of probable cause for the issuance of the search warrant. State v. Morrison,
The record indicates that police officers brought Pogo to Ortiz’ apartment building for the purpose of performing a canine sniff on the same evening in which they had earlier received the anonymous call from C/C alleging that Ortiz had been actively distributing cocaine from his apartment “within the past year.” This information from C/C was an uncorroborated allegation from an anonymous source whose reliability was unknown to police. The caller reported activity “within the past year” but stated no exigent circumstance that demanded immediate action
The information resulting from the alert was not obtained in a manner consistent with the Fourth Amendment and Neb. Const, art. I, § 7. The information gained by virtue of Pogo’s sniff outside Ortiz’ apartment was not constitutionally obtained, and such information cannot be considered as a basis for obtaining a search warrant. We must, therefore, excise the information generated by Pogo’s alert in the hallway from the affidavit and examine the remainder of the affidavit for the existence of probable cause. The remainder of the affidavit consists of the information supplied by C/C, coupled with some additional facts noted above.
(c) Evaluation of Information in Affidavit Other Than Canine Alert for Probable Cause:
Reliability and Sufficiency of Information Supplied by C/C and Other Facts
To have the evidence seized pursuant to the search warrant suppressed, Ortiz must show that there was not a sufficient residue of information in the affidavit amounting to probable cause to support the warrant without consideration of the fact of the improperly obtained canine alert. In addition to the positive
When a search warrant is obtained on the strength of information received from an informant, the affidavit in support of the issuance of the warrant must set forth facts demonstrating the basis of the informant’s knowledge of criminal activity. The affidavit must also either establish the informant’s credibility or set forth a police officer’s independent investigation of the information supplied by the informant. State v. Lytle,
As set forth above in the passage excerpted from the police affidavit submitted in order to obtain the warrant, C/C’s name was not made known to the magistrate nor did the affidavit indicate that C/C was known to the police officers or had provided reliable information to them in the past. On appeal, ¿he State characterizes C/C as a citizen informant whose tip was presumptively reliable. This characterization is incorrect because the affidavit submitted in support of the application for a search warrant does not identify C/C as a citizen informant, which is a special status which must be affirmatively alleged. See, State v. Lytle, supra; State v. Utterback, supra. Although the affidavit stated that C/C did not request payment for the information given to police, this fact, without more, does not establish that the tipster is a reliable citizen informant. See State v. Utterback, supra.
The affidavit did recite that police had confirmed that Ortiz lived at the address provided by C/C and that Ortiz’ appearance matched the general description supplied by C/C. Ortiz’ address and physical description are neutral facts which do not, without more, imply criminality. See, State v. Flores, supra; State v. Utterback, supra. Corroboration of this information did not generate enough information to establish probable cause that Ortiz had committed, or was about to commit, a crime. Id.
The affidavit included information from police records that Ortiz had a prior conviction in 1991 and that Ortiz had been arrested in 1994, but that these charges were dropped. The information regarding Ortiz’ drug-related criminal history may be considered relevant information which could be properly included by police in the affidavit to demonstrate probable cause. State v. Hodge and Carpenter,
In this case, the permissible information contained in the affidavit submitted in support of issuing a search warrant, consisting of the information supplied by C/C, Ortiz’ history, and certain innocent details of Ortiz’ life, failed to demonstrate a totality of circumstances that established probable cause. We cannot say that the “totality of the circumstances,” see Illinois v.
(d) Outcome of This Case
The evidence seized pursuant to a defective warrant must be suppressed. State v. Fitch,
VI. CONCLUSION
The Fourth Amendment embodies the centuries-old principle of respect for the privacy of the home. Under the federal and Nebraska Constitutions, a canine sniff for illegal drugs conducted at the threshold of a dwelling detects information regarding the contents inside the home, and an individual has a legitimate expectation of privacy inside the home even as to these unworthy contents. Under the Fourth Amendment and Neb. Const, art. I, § 7, an occupant has a legitimate expectation of some measure of privacy in the hallway immediately outside his or her apartment or at the threshold of his or her home. Given such constitutional protection, before a drug-detecting canine can be deployed to test the threshold of a home, the officers must possess at a minimum reasonable, articulable suspicion that the location to be tested contains illegal drugs.
We have concluded in the instant case that due to the absence of reasonable, articulable suspicion, it was improper for the police to go to the threshold of Ortiz’ residence for the sole purpose of deploying a canine to sniff for the existence of illegal drugs inside the home. In this case, an anonymous tip, inter alia, did not provide reasonable, articulable suspicion that would constitutionally justify a canine sniff investigation immediately outside an individual’s dwelling. The result of the canine alert
There was no probable cause to justify issuance of the warrant to search Ortiz’ apartment. The search warrant was constitutionally defective. Because the fruits of the unconstitutional search should have been excluded, the trial court erred in overruling Ortiz’ motion to suppress the evidence seized pursuant to the search and in admitting that evidence at trial. The trial court’s ruling denying the motion to suppress was error and the ruling admitting the challenged evidence was error, and thus, the judgment of the district court is reversed, and the cause is remanded for a new trial consistent with this opinion.
Reversed and remanded for a new trial.
Concurrence Opinion
concurring
I concur in the result but disagree with the conclusion of the majority that a canine sniff performed outside an apartment for the purpose of detecting drugs located inside that apartment may be performed without a warrant based on reasonable suspicion. I would hold that the use of a canine at the threshold of a dwelling to detect an item found inside that dwelling constitutes a search, thus triggering the protection of the Fourth Amendment. Due to the heightened expectation of privacy one has in his or her dwelling, I would apply the standard principle that absent only a few narrowly prescribed exigent circumstances, the search of a dwelling must be made pursuant to a warrant based on probable cause.
The issues in the instant case are (1) whether a canine sniff of the exterior of a dwelling that is utilized to detect the presence of contraband inside that dwelling constitutes a search or seizure and if so, (2) whether the search was reasonable, i.e, whether the limited intrusive nature of the search and the fact that it can detect only contraband act to lower the standard from probable cause to reasonable suspicion.
WHETHER THE FOURTH AMENDMENT IS IMPLICATED
The majority fails to conclusively state how the protections of the Fourth Amendment apply to Ortiz. As the majority correctly
As the majority stated, this court has traditionally relied on the principles enunciated in Katz v. United States,
I concede there is a split of authority regarding whether a canine sniff constitutes a search. Relying on the dicta in United States v. Place,
State courts are also divided on the issue. Some courts conclude, usually on the basis of their state constitution, that canine sniffs constitute searches. However, other courts apply the reasoning of Place and Jacobsen to conclude that canine sniffs do not constitute a search. The reasoning of Place and Jacobsen is not without criticism, some of which I find relevant to the instant case.
First, as Justice Brennan noted in his dissent in Jacobsen, when the focus is on the nature of the item sought and revealed through the use of a dog sniff, the resulting theory is that individuals have no reasonable expectation of privacy due to the fact that they are carrying contraband. As Justice Brennan stated, this is contrary to the “fundamental principle that ‘[a] search prosecuted in violation of the Constitution is not made lawful by what it brings to light.’ ” Jacobsen,
I agree that a dog sniff is undisputably less intrusive than a “full-blown” search due to its ability to identify only the presence or absence of contraband. However, as illustrated by Justice Brennan’s dissent in Jacobsen and this court’s reliance on the principles enunciated in Katz, this distinction alone should not be the deciding factor when considering whether a sniff constitutes a search. Were this to become the deciding factor, the court would act to foreclose any consideration of the circumstances under which the sniff was conducted and “may very well [pave] the way for technology to override the limits of law in the area of criminal investigation.” Jacobsen,
More important, the U.S. Supreme Court left unclear whether canine sniffs do not constitute searches only when conducted in areas such as airports, where the expectation of privacy on the part of passengers is already lowered. See Hall, supra. This is an important distinction because as one author has noted, the large majority of federal court decisions address dog sniffs in the context of luggage or other public areas outside of the defendant’s personal residence. Such cases require only a plain application of the dicta in United States v. Place,
In United States v. Thomas,
Here the defendant had a legitimate expectation that the contents of his closed apartment would remain private, that they could not be “sensed” from outside his door. Use of the trained dog impermissibly intruded on that legitimate expectation. The Supreme Court in Place found only “that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search’ within the meaning of the Fourth Amendment.” . . . Because of [the defendant’s] heightened expectation of privacy inside his dwelling, the canine sniff at his door constituted a search.
Thomas,
It is one thing to 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 to be asked is whether the use of a trained dog intrudes on a legitimate expectation of privacy.
Id. at 1366.
Other federal circuits have reconciled the holding of Thomas by noting that the issues in the cases they had under consideration did not involve an area such as a dwelling where the expectation of privacy is heightened. I believe this implicitly acknowledges that there may be some instances in which a canine sniff might be considered a search. See, e.g., U.S. v. Stone,
Although a canine sniff for narcotics may be less intrusive in relation to other investigatory methods and will disclose only the presence or absence of narcotics, it remains a way of detecting the contents of a private, enclosed space. Through the use of a dog, officers are able to obtain information about what is contained within a dwelling that they could not obtain utilizing their own senses. “Consequently, the officer’s use of a dog is not a mere improvement of their sense of smell, as ordinary eyeglasses improve vision, but is a significant enhancement accomplished by a different, and far superior, sensory instrument.” Thomas,
The majority in the instant case never addresses whether they consider the canine sniff conducted at the threshold of Ortiz’ apartment to be a search. Rather, the majority states that Ortiz had some expectation of privacy in the hallway and applies a reasonable suspicion standard to determine whether the sniff was reasonable. I disagree with this reasoning. As illustrated by United States v. Thomas,
WHETHER CANINE SNIFF OF DWELLING REQUIRES WARRANT
The canine sniff in the instant case constituted a search, thus the next issue to be determined is whether that search was reasonable. I agree with the majority to the extent that they determine the search was unreasonable. However, I disagree with their reasoning that a canine sniff may be performed in an apartment hallway for the purpose of detecting contraband inside the dwelling without a warrant based on reasonable, articulable suspicion. Although I recognize that such a warrantless search may be appropriate in circumstances where the expectation of privacy is lower, I believe a search of a dwelling must be conducted pursuant to a warrant issued on the basis of probable cause.
Although the majority recognizes that there is a greater expectation of privacy in a dwelling than in objects of a less intimate or transient nature, the majority nevertheless balances the interests of the individual and the government to conclude that a warrantless intrusion based on reasonable suspicion was the appropriate standard. I disagree with this analysis for two reasons. First, the analysis ignores the principle that searches and seizures without a warrant are presumptively unreasonable. See Payton v. New York,
[tjhe Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their . . . houses . . . shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States,365 U.S. 505 , 511. [T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Payton,
Courts that have adopted a reasonable suspicion standard have done so on the basis that under the facts presented, the search was reasonable due to a diminished expectation of privacy in the thing searched, the importance of the law enforcement interests at stake, and the minimal intrusiveness of the dog sniff. U.S. v. Whitehead,
Of particular interest is a pair of cases from the Supreme Court of Pennsylvania which illustrate the reasoning behind requiring a warrant based on probable cause when a dwelling or person is the object of the search but perhaps allowing a warrantless search based on reasonable suspicion when the privacy interests are lessened. The majority in the instant case relies on, and provides a lengthy quote from, the Pennsylvania case Johnston, supra. In Johnston, the Supreme Court of Pennsylvania determined that a canine sniff of a 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 to apply a balancing of interests in order to determine whether a sniff constituted a search because when making that determination, the balance had been struck by the Fourth Amendment itself. However, the court did find the balancing inquiry appropriate in determining whether the canine sniff search necessarily involved the “full-blown” warrant requirements of the Fourth Amendment. The court stated that much of the law enforcement utility of dogs would be lost if “full-blown” warrant procedures were required but also recognized that there had to be some restraint on the use of them. The court then concluded that under the facts of the case, the warrantless search of the locker was permissible because the officers had articulated a reasonable suspicion that drugs might be located in the storage locker and the officers were lawfully situated when they conducted the search.
Although the majority opinion provides a lengthy quote from Johnston, supra, it does not cite the later Pennsylvania case of Com. v. Martin,
We are mindful that government has a compelling interest in eliminating the flow of illegal drugs into our society, and we do not seek to frustrate the effort to rid society of this scourge. But all things are not permissible even in the pursuit of a compelling state interest. The Constitution does not cease to exist merely because the government’s interest is compelling. A police state does not arise whenever crime gets out of hand. In fact, all today’s holding requires is what police should themselves insist on: probable cause to believe that a crime has been committed or contraband is to be found before there is a police intrusion, beyond that permitted by Johnston and Terry, into one’s person. [A] free society cannot remain free if police may use drug detection dogs or any other crime detection device without restraint. The restraint which we today impose on the use of drug detection dog searches of persons is modest enough, in light of our constitutional mandate.
Martin, 534 Pa at 145,
I believe a rule allowing the warrantless canine search of an apartment based on reasonable suspicion is illogical and improper. Justifications stated by the court in Com. v. Johnston,
In the instant case, the expectation of privacy is heightened because it involves a residence. The protection of the privacy expectation an individual has of their person and in their dwelling are the core protections of the Fourth Amendment. The majority appears to recognize this but moves away from the issue by referring to Ortiz’ expectation of privacy in the hallway. I believe this reasoning is flawed. As previously discussed, the search in the instant case was not a search of the hallway. It was a search specifically aimed at contents inside Ortiz’ apartment. Additionally, the difference between a public area, or an item in transit, and the hallway of an apartment building is significant. While it is shared by residents of the building and their guests, it does not experience the traffic of an airport or other public area. The existence of a semipublic hallway should not limit the expectation of privacy a person has in their apartment. As one justice has stated, “I do not believe that the Fourth Amendment protects only those persons who can afford to live in a single-family residence with no surrounding common space.” U.S. v. Roby,
Next, little of the utility of drug detection dogs is lost by requiring a warrant prior to the canine sniff search of a dwelling, although this is a serious concern in cases of airport security and items being sent in the mail. For example, the expectation of privacy in luggage is lower than the expectation of privacy in a dwelling, while the police interests in utilizing canines to detect contraband in luggage is quite high due to the transient nature of the object searched. When a transient item is at issue, officers simply do not have the time or opportunities necessary to observe the owner of the luggage to the point where probable cause could be established. Thus, the use of a canine is of great utility to officers in cases with facts such as those in United States v. Place,
Finally, although a canine sniff is certainly less intrusive than a “full-blown” search, it is in error to rely on this factor in cases