United States v. Joseph J. Reed

America, UNITED STATES of

Plaintiff-Appellee,

Joseph REED, Defendant-Appellant. J.

No. 96-4174. Appeals,

United States Court

Sixth Circuit.

Argued Jan. 1998. April

Decided 1998. support

sufficient evidence to Reed’s convic- tions; provision and whether the time-bar 851(e) of 21 U.S.C. is constitutional. We affirm the convictions and sentence. I. pursuant charged,

Reed was to a two-count indictment, being possession a felon in ammunition, of a firearm and in violation of § 922(g)(1), possessing 18 U.S.C. and with with intent to distribute cocaine base (“crack”), in violation of 21 U.S.C. 841(a)(1). § suppress Reed filed a motion to hearing days evidence. After four of evi- argument, dence and the trial court denied Upon reconsideration, the motion. the trial court let finding the denial stand after alleged police defendant’s new evidence of an conspiracy Following to be incredible. a trial, three-day jury guilty Reed was found on both counts. suppres- These facts were adduced at the Shamansky (argued Samuel H. and hearings: sion evening one in November

briefed), Columbus, OH, Defendant-Ap- for Collins, Megan upper resident of the pellant. Mansfield, Ohio, flat of a double house in Nancy Veechiarelli, thump go A. heard a the alarm Attorney Asst. and off (argued briefed), Cleveland, OH, stopped and lower flat of the house. for The alarm Plaintiff-Appellee. sounding ap- about 20 minutes later. After minutes, proximately Megan 10 more heard WELLFORD, RYAN, Before: and thump, glass breaking, another and the SILER, Judges. Circuit again mother, alarm sounding. Her Soni Collins, p.m. report then called 911 at 7:26 RYAN, J., opinion delivered the later, the disturbance. Minutes at about 7:30 court, SILER, J., joined. in which p.m., patrolmen four arrived near-simulta- WELLFORD, 653), (p. J. delivered a neously. securing While the rear of the separate opinion concurring in the result. premises, Mansfield Police Officers Brett Snavely and Shari Robertson found a broken RYAN, judge. Circuit ajar. window and a door On-scene com- defendant, Reed, Joseph appeals J. his mander, Webb, Sergeant Michelle then de- jury conviction on finding guilty verdicts him cided to call a canine team. Mansfield’s possession a firearm a convicted policy sweep building is to use canines to felon, § 922(g)(1), violation of 18 U.S.C. intruders, feasible, any trapped for in or- possession with intent to distribute der to reduce the risk to officers. cocaine, crack in violation of 21 U.S.C. 841(a)(1); sentence, appeals arrived, he also p.m., his At 7:41 Reed and declared mandatory was increased to Snavely mini-. that he lived the bottom flat. 841(b)(1)(A) pursuant mum explained Reed, §§ to 21 replied situation 851(a)(1). presses three on that issues the unit had been broken into several (1) appeal: times, alarm; whether the district court thought erred hence the that he it denying suppress Reed’s motion good contra- was a in dog; idea to send and that he allegedly hoped band obtained in dog burglar. violation of the found the At 7:50 Amendment; Fourth p.m., County whether Deputy there was Richland Sheriff James “Cheddy.” dog dog, pulled away, bag his arrived with noticed Sweat plainly key bright mag-light to the cocaine visible Snavely then asked Reed for a Cheddy enter beam. Sweat and the in- to allow the canine unit to continued front door bathroom, search in near truder which was the building, avoiding the broken “sure,” last room to be searched. Sweat did not said and hand- the back door. Reed pad- search the basement because it was Snavely key. then shouted the ed Sweat locked the inside. Sweat then returned warnings 30- 15-second standard partially replace to the master bedroom to dog if going to whomever was release exiting the dresser drawers before the flat. Next, Sweat inside did not surrender. gave report. He then an all-elear-of-suspects ordered to “find loosed the dog Sweat and had been the flat inside them,” which, conjunction with the 30- and approximately five minutes. warnings, dog’s signal 15-seeond opposed drugs. out as search intruders Next, Snavely took the flat inside flat, by Cheddy the lower followed entered anything determine whether had been stolen Sweat, dog at the door while the waited suspected the intruder. turned Reed first the room. was “cleared” first Each room off, proceeded directly the alarm and then to investigated in fash- sequentially this same the in examine dresser the master bedroom. ion. flat, inspection the During ensuing Snavely triple-beam a box for noticed a Reed, Cheddy was also Unbeknownst bedroom, in spare ciga- scale the Ohaus and drugs, for in re- trained search albeit rolling papers rette on a the table near sponse unique “get command the the Robertson, prepar- couch. Officer who was substantially dope,” conjunction and with a ing burglary report, the the also noticed “leashing” procedure designed to different Sweat, cigarette and papers. scale box the Al- protect dog ingesting drugs. the too, rolling papers, had noticed the as well as though Cheddy to search for was ordered scale, digital Cheddy a box for when he and leashed, drugs, although he was not he first cleared the rooms. during the drugs alerted for in several areas Sweat, According to search. an award-win- securing Cheddy, After Sweat advised handler, police ning judge, canine and certifi- Snavely the in the events master bedroom. er, award-winning was the a first for Snavely returned to the dresser and could Cheddy. drawer, plainly baggie top see the the open approximately which was still one-and- Cheddy’s response in- conditioned to an suspicions a-half inches. To confirm contrast, dog is to the is truder bark. contraband, Snavely baggie the contained trained, scratch, alerting drugs, when open inched the drawer a bit further. Mem- dig, object containing drugs bite at the the force, “MetRich,” drug bers of the task called pulls Cheddy until off. first Sweat him the In addi- were then summoned to scene. livingroom indicating scratched at the couch tion, although Reed had earlier stated thinking him drugs, but Sweat called off flat, twice he lived lower least coming alert was to human scent from the Snavely again he lived asked Reed whether nearby through heating duct. basement replied that he in the flat there. lived Thus, Cheddy again Sweat ordered to “find Snavely informed about alone. course, Cheddy them.” due entered the found, placed drugs that him under were bedroom, master and alerted on a dresser arrest, jail. him to and escorted Before scratching right-hand at the dresser drawers. Snavely departed, officers and Reed MetRich Sweat, commotion, upon hearing the entered arrived and asked Reed for his consent un- Although the master bedroom. it conferring with his search flat. After known whether the dresser were drawers phone, the re- lawyer over the Reed denied room, ap- open Cheddy before entered the quest. top parently had knocked the drawer drawer, off its into the Robertson and MetRich members runners and second While warrant, protect Cheddy, other offi- open. which was also To left to obtain a search drawer, top guarded house. As whose head was Sweat cers Robertson affidavit, away, parked one of the MetRich officer’s ear three minutes preparing the flat, prior spent back to the four to five that Reed had walked officers discovered inside, trafficking the cocaine in the drug and that a minutes found conviction drawer, complained right-hand citizen” had of his dresser and returned to “concerned car; information was trafficking activities. This the officer’s and that he was returned booking The affidavit also his cell. There was no card to sub- included the affidavit. arrest, Cheddy’s charges various or the a recitation of stantiate Bonner’s included Although identify drug utility against certifications. him. Neither could he stated, correctly dog’s qualifications were his services. officer claimed solicited mistakenly “Speedy.” testimony in- name was listed as The trial court found Bonner’s warrant, testimony judge signed placed the search because his him in After the credible Cheddy beginning were recalled to the the flat for some 15 minutes with Sweat drug breaking glass ending scene in order to conduct a full-scale the first yet sweep. exiting, with his second the 911 records ap- that officers were on the scene showed drugs, secured the 23.47 The officers first proximately minutes after the three crack, previously top grams of seen prior was broken. The court let stand its drawer, right-hand dresser and then Sweat suppress. motion to The court denial began narcotics on a search suppression hearings, summarized following leash. items were seized: resulting rulings, opinion oral and or- drawer, top from the left dresser 53.06 der, which, law, based on recent case the grams grams marijua- of crack and 3.807 of finding court included an additional that the na; cushion, .24 from underneath the couch “government clearly the ex- [had] established crack, grams laying of which was next to an reliability training tensive of the pistol Ohio-manufactured that contained am- apartment.” used to search [Reed’s] out-of-state; munition manufactured from a couch, pistol the an Intratec box underneath III.

containing ammu- four CCI-brand rounds of nition; top, from the coffee roll- table some Suppress A. Motion to ing papers; and from under the bathroom reviewing a “When the denial of sink, scale, triple-beam an Ohaus and a bottle evidence, suppress motion to we review the Inositol, agent. drug-cutting of a findings district court’s of fact for clear error and its conclusions of law de novo.” United

II. Jenkins, 768, v. 771-72 States denying suppress motion to Reed’s this Cir.1997) Williams, (citing United States v. (1) evidence, the court found that officers (6th Cir.1992)). 1218, 962 1221 F.2d “We properly premises by were on the either light must review the in the most evidence consent, they or because entered search of likely support the district court’s decision.” (2) burglar; open a that Sweat did not (internal quotation Id. at 772 marks and cita plain-view drawers to allow the initial discov- omitted). tions (3) ery; conspire that officers did not search Reed’s residence. dispute Reed does not the district rather, granted findings; argues

The trial court Reed’s motion to court’s factual sup- dog allegedly opened of reconsider the denial the motion to that when the drawers, witness, press. produced Reginald scope a of consent dresser Bonner, exceeded, in plain- who testified that an unknown to search for vio intruders police drop charges officer lation of Fourth It is axio clothed offered Amendment. “protects against Bonner if Bonner “snitched on some- matic that the Fourth Amendment body.” people government Bonner related that he out” intru “ratted unreasonable Reed; expectations legitimate that the same officer then took Bon- sions into their flat; Chadwick, jail privacy,” ner from his cell to v. 433 flat, 1, 7, 2476, 2481, Bonner broke the at Reed’s en- U.S. 97 53 L.Ed.2d 538 S.Ct. time, (1977), exception, po- tered the flat for a returned to the and that absent some

649 person’s a of upon expectation conduct warrantless search a reasonable may not lice home, Place, privacy. See United States v. 462 an individual's see United 696, 706-07, Johnson, 506, 2637, 2644-45, 103 F.3d One U.S. S.Ct. 77 508 (1983). so, police L.Ed.2d This is “the exception allows to enter a residence because manner in which information is obtained probable a warrant there is cause without through investigative technique prog- is much burglary that there to believe is typical less intrusive than a search. More- exception, id. at Another ress. See 509-10. over, presence the sniff discloses or course, Schneck- is consensual search. narcotics, Bustamonte, absence a contraband item.” Id. 218, 219, 93 412 U.S. loth 707, 2644; (1973). at 103 S.Ct. at see United States 2041, 2043-44, 36 L.Ed.2d 854 S.Ct. Jacobsen, 123-24, 109, 466 U.S. circumscribed, exceptions Both of these are (1984). 1652, 1661-62, 80 L.Ed.2d 85 There- search—here, however, by object fore, discriminating the limited and nature of suspected to find a intruder. See Florida “not a sniff does a ‘search’ within constitute Jimeno, 248, 251-52, 500 U.S. 111 S.Ct. meaning of the Fourth Amendment.” Johnson, (1991); 114 L.Ed.2d 297 Place, at 462 U.S. 103 S.Ct. at 2645. at 510. as sniffing Just of contraband Nonetheless, initial “[w]here by trained canines does not constitute an brings plain intrusion that within search, viewing by unlawful neither does the [incriminating] sup ... an is view of article plain sight humans of contraband amount warrant, ported, not but one to an unlawful long search. As as the ob exceptions re recognized to the warrant serving person sniffing canine are legitimate.” quirement, the seizure is also legally present at vantage their when their California, Horton v. respective by obviously senses are aroused (1990). L.Ed.2d evidence, incriminating within a search (1) Thus, lawfully an officer meaning of the Fourth Amendment has not obviously vantage point; who observes addition, just occurred. In as contraband in view; incriminating plain evidence in may plain legally view be if seized accessed contraband, may has lawful access the may provide also probable cause to ob offending the evidence the seize without warrant, so, too, positive tain a search “[a] 135-37, 110 Fourth Amendment. id. at See properly reaction trained narcotics 2307-08; Calloway, at S.Ct. United States presence probable can for the establish cause denied, 1129, (6th Cir.), 1133 116 F.3d cert. of controlled substances.” United States v. — -, 324, U.S. 118 139 S.Ct. (6th Cir.) 148, Berry, (citing 90 F.3d 153 (1997). plain viewing L.Ed.2d 250 Such a (6th Diaz, 392, 25 F.3d 394 United States seizure, accomplished even if with the — Cir.1994)), denied, -, 117 cert. Dunn, flashlight, see aid of a United States (1996). S.Ct. L.Ed.2d 389 294, 305, 107 1134, 1141-42, 94 480 U.S. S.Ct. (1987), Sweat, acknowledges the if L.Ed.2d 326 does not exceed that while pursuant intruder, scope searching a search for an entered the room of to either If, however, exceptions. Cheddy drugs lying above warrant before saw the drawer, incriminating open discovery nature is not of the evidence dresser would immediately apparent, plain-view plain-view then the have fallen within the doctrine. However, Cheddy support not Ari if moved doctrine would the seizure. contends Hicks, drawers, 321, 323-24, 107 Sweat’s discov- zona v. result is that (1987). But, 1149, 1151-52, plain-view if ery 94 was outside the doctrine. Es- L.Ed.2d 347 already argument, his contention an article of obvious contraband “is sential to Reed’s is view, Place, not plain neither nor its that a sniff is its observation held search, priva- any applies “public involve of sniffs.” Reed seizure would invasion Thomas, Horton, 133, cy.” 496 757 F.2d U.S. at 110 S.Ct. relies (2d Cir.1985), argument. support 2306. 1359 pro- Supreme a “ca- seems to alone its Court has held that Thomas stand may unreasonably that a sniff consti- nine sniff’ does intrude nouncement canine instance, According assuming even moved an unreasonable search. tute court, drawers, heightened privacy the Thomas which has not been established. dwelling place renders a canine interest in a This is so because the movement expectation drawers, inhabitant’s any, sniff intrusive on the would have been occasioned privacy, respect to contraband. Cheddy’s even with instinctive reactions to the na- Yet, holding ignores the Indeed, Id. at this 1366-67. ture of the contraband. at least two in Place that Supreme that, determination Court’s have found absent mis- circuits person legitimate privacy interest conduct, has no acts of trained ca- instinctive contraband, rendering possession thus nines, trying open such as container location the contraband irrelevant narcotics, containing does not violate the holding that a canine sniff does the Court’s Fourth Amendment. See United States v. Indeed, the not constitute a search. Court Cir.1992); Lyons, 957 F.2d explained reason Place [the later that “the Stone, United States v. 866 F.2d upon any legiti- not intrude canine did sniff] (10th Cir.1989). Moreover, the alert itself privacy govern- mate was that the interest provided probable sufficient cause for the nothing about mental conduct could reveal issue, warrant to such that Sweat’s observa- Jacobsen, items.” 466 U.S. at noncontraband fact, any tion critical in was not event. short, 124 n. at 1662 n. 24. In 104 S.Ct. couch, the initial alert on the which involved “privately” legitimate interest in there is no containers, opening provided no of closed possessing cocaine. Id. at 104 S.Ct. at probable cause once Sweat realized that no 1661-62. coming human scent was the locked basement. rejected

At least two circuits have holding it con the Thomas court’s because Hicks, that if an Court held officer Supreme Court’s determina flicts with the had to move an item in order to discover its expectation pri legitimate tion that “[n]o contraband, nature as seizure under vacy by governmental impinged conduct plain-view exception justified. was not See nothing that can noncontraband ‘reveal about 480 U.S. at at 1152-53. ” Colyer, items.’ States v. 878 F.2d Here, couch, Cheddy’s alert on the and his (D.C.Cir.1989) Jacobsen, (quoting dresser, any alert on the occurred without 24); n. 466 U.S. at 124 n. S.Ct. at 1662 possessory interference with Reed’s interest Lingenfelter, see United States v. contraband, in the both because no move- (9th Cir.1993) (quoting Colyer, necessary, ment was and because there is no 475). Additionally, F.2d at circuit has possessory interest in In addi- contraband. rejecting notion criticized Thomas for tion, concededly any- Sweat did not move that a canine is not a search within the sniff immediately thing when he observed the in- mat meaning of the Fourth Amendment no criminating appearance baggie, of the place. ter where the sniff takes See United Cheddy instinctively aided Sweat’s observa- Cook, 1990 WL States No. tion, there was no violation of the Fourth 1990) (6th J., May (Guy, at *3-5 Cir. Amendment.

concurring). opportunity We now take the clarify that a canine sniff is not a search Sufficiency B. of the Evidence meaning within the of the Fourth Amend Reed claims there was insuffi course, ment. Of the canine team must law jury to cient evidence for the conclude be fully present be at the location where the actually yond a that he reasonable doubt Diaz, sniff occurs. at 397. See 25 F.3d constructively “possessed” the contraband.

Here, evidence, reviewing the canine team was law a claim of insufficient whether, fiat, fully present question to the “the relevant after view either due Any light pursuit burglar, ing of a or Reed’s consent. the evidence most favorable Sweat, prosecution, any fact contraband seen or sniffed to the rational trier of therefore, Cheddy, “plain- have the essential elements of fell within could found beyond view” or the “canine-sniff” rule. the crime a reasonable doubt.” doctrine Thus, 307, 319, Virginia, illegal there was search in this Jackson v. no (1979); the contraband and de- minutes to secrete see 61 L.Ed.2d dispersion degree part. Given the wide at 1134. Circumstantial

Calloway, 116 F.3d contraband, large concealment of the jury’s to sustain a alone is sufficient evidence involved, Lee, quantity drugs and value of the 991 F.2d verdict. See distribution, drug other evidence jury have found that the con- rational could possession exists Constructive Reed, belonged to and that traband indeed power ‘“the person knowingly has when enough “plant” not time to three minutes was given time to exercise intention at event, any proving array. this vast ” object’ not in an and control over dominion possession, necessary it is not constructive possession. United States or her actual hypothesis except that every reasonable (6th Cir. Murphy, 107 F.3d Craven, guilt be See removed. Craven, 1997) (quoting States evidence existed to allow a 1333. Sufficient Cir.1973)). Like actual reasonably of fact to find that rational trier may possession be constructive possession, possessed constructively the contra- Reed See id. by circumstantial evidence. proved flat that he alone inhabit- band found Here, jury how the officers were heard ed. flat, they quickly how to the lower summoned Constitutionality scene, they secured C. on the how arrived arrived, they they how contacted flat when challenges his sentence. The Reed also unit, directly proceeded Reed the canine how Regarding an Information government filed flat, upon entering the how the dresser Convictions, pursuant U.S.C. Prior arrested, the search warrant was how 851(a)(1), notifying § Reed that if convicted obtained, particular how evidence was count, drug his sentence would be warrant. pursuant to the search was obtained pursuant 21 U.S.C. increased jury photographs also examined 841(b)(1)(A) drug-traf- § because of under the in the dresser drawer and drugs court. re- ficking conviction state cushion, finger- that Reed’s and heard couch conviction was sponded that the state-court nor on prints not found on the dresser were unconstitutional, not be used to and could However, Bonner’s items. any of the seized beyond the United increase his sentence suppression conspiracy testimony from the sentencing Sentencing Guidelines jury. hearing repeated not for However, he did range of 188-235 months. prove ample directly challenge, response in his or at There is evidence constitutionality of sec- power sentencing, to exercise dominion Reed had that the He admitted itself. The trial court found over the contraband. tion 851 flat, and that he time-barred drugs challenge found to the state conviction were 851(e), and, enough accord- alone. This is evidence to 21 pursuant lived there Moreover, statutory man- possession. to the prove ingly his constructive sentenced Reed incarcera- argue datory that the contraband be- of 240 months’ does not minimum he time, might have the first acquaintance argues, now longed to tion. Reed flat; rather, suggests unconstitutional. it Reed’s that the time bar is stored contra- could have hidden that the intruder constitutionali Challenges to the in his flat. band are reviewed de novo. ty of a criminal statute Brown, Reed, v. 25 F.3d United States Unfortunately for the evi See Cir.1994). (6th Generally, a failure to raise any suggestion that intruder dence belies precludes this court’s consid below flat. Law- an issue in Reed’s hid the contraband “[h]owever, appeal; of the issue on the scene of eration officers arrived enforcement may [its] exercise discretion progress, [this court] and secured the burglary excep not raised below review an issue premises within minutes after when the rule would entry tional cases ... or There was no evidence broken. justice.” Therefore, plain miscarriage of produce a glass. prior breaking to the 564, Chesney, F.3d 567- 86 approximately three United intruder would have had 652 (6th Cir.1996) (internal process quotation equal marks constitutional on both due and 68 — denied, omitted), protection grounds. See United States v. cert. citations U.S. (8th Prior, 654, Cir.), (1997). 107 F.3d 660-61 cert. -, 2470, L.Ed.2d 225 117 S.Ct. 138 — denied, -, 84, U.S. 118 S.Ct. 139 exceptional Although no circumstances (1997); 41 L.Ed.2d Gon- here, urges this court to compel review zales, (5th 413, Cir.), 79 F.3d 426-27 cert. 21 its and find U.S.C. exercise discretion - denied, -, 117 136 S.Ct. 851(e) § unconstitutional. The indictment (1996); 122 L.Ed.2d United States v. Aran- charged with violation of 21 U.S.C. (7th go-Montoya, 61 F.3d 1338 Cir. 841(a)(1) (b)(1)(A). § The latter subsec- 1995); McChristian, United States v. 47 F.3d any person “If provides: [a tion commits (9th Cir.1995); 1503 and United States (a) prior violation of subsection after a con- ] Williams, 673 Cir. felony drug for a offense has become viction 1992). addition, court, though In final, person such shall be sentenced to a squarely presented chal- with constitutional may imprisonment term of not be less bar, lenge approvingly to the time noted ” years.... 21 than 20 U.S.C. upholding time-barring defendant’s 841(b)(1)(A). Here, government prop- § sentence, objections to his enhanced that sec- erly prior by filing established the conviction 851(e) tion had been held constitutional. See court, with the and the defendant before Jenkins, 4 United States v. 1343 trial, detailing prior an information state 851(a)(1). § conviction. 21 U.S.C. See reject arguments, We may deny provides statute that a defendant compelling we find no other reason to hold sentenced, prior being conviction before fact, that the statute is unconstitutional. 851(b), may challenge § see U.S.C. or Supreme has it clear that Court made subject writing preponder- to a conviction Congress could choose to eliminate all collat 851(e). standard, § ance see 21 U.S.C. How- prior regard eral attacks on convictions ever, provides the statute also that no defen- enhancement, to sentence save for the limit “may validity any prior challenge dant prior ed circumstance which the conviction alleged conviction under this section which right was obtained in violation of the to have years more than five before the occurred Custis, appointed. counsel See 511 U.S. at alleging prior of the information such date 491-97, 114 S.Ct. at 1736-39. other 851(e). conviction.” Reed chal- words, may collaterally a defendant attack a lenges provision. this last prior purposes conviction used for of sen Reed, prior acknowledging while that the (1) only tence enhancement attack is such conviction within the time bar section statute, provided such attack ais

851(c), statutory argues that the time bar is premised constitutional one on a lack of coun unconstitutional, facially applied both and as Gonzales, (citing sel. See 79 F.3d at 426-27 him, arbitrary because it makes an distinc- Custis, 493-97, 114 511 U.S. at S.Ct. at 1736- defendants, similarly 39). tion between situated Fifth Pro- violation of the Amendment’s Due Here, fully represented by Reed was Equal cess and Protection Clauses. See during guilty counsel state court States, 453, 465, Chapman v. United 500 U.S. therefore, plea sentencing; rely he must 1919, 1927-28, L.Ed.2d 524 statutory provision prior on the to attack the (1991). that time Reed also asserts bar hold, sentence. We as our sister circuits deprives liberty having him of his interest in have, Congress reasonably circum prior a valid conviction enhance his sen- statutorily right scribed the created found tence, time bar violates Custis Furthermore, section 851. section 851 “is a States, reasonable limitation on defendants to effec (1994). arguments L.Ed.2d purposes tuate the of sentence enhancement are not well taken. of recidivists and to eliminate host While no court has sustained a constitu- problems respect with or ancient de 851(e), Gonzales, challenge stroyed tional to 21 at records.” 79 F.3d at 426. Therefore, provision challenge least five circuits have found the because Reed did not in five-year suspected statu- to a search for intruder within the 1991 sentence residence, private not err in and not to the district court did a search of tory period, challenge belongings for these cir- dismissing his as time-barred. contraband. Under cumstances, Cheddy, I believe the actions of

IV. canine, may the trained have constituted a Fourth Amendment search. respects. AFFIRM in all Accordingly, we so, I agree Even would that the canine WELLFORD, concurring. Judge, Circuit lawfully apartment, in and I team was case, that case did not note in this in the result reached I concur Furthermore, I improperly. handle clarify my views on separately I but write any by hu- agree that seen in this contraband Amendment issues raised the Fourth man officer or sniffed the trained canine appeal. either the “plain fell within view” doctrine does, conclude, majority I would not as Moreover, Judge Ryan’s “canine sniff’ rule. sniff is never a Fourth Amend- that a canine other there was evidence observed of agree I the rationale ment search. police, including Cheddy’s alert on the sofa Thomas, F.2d States United room, to living probable indicate cause to (2d Cir.1985), distinguishes 1366-67 that in Reed’s believe contraband was located public airport, sniff see a canine at a between apartment considering even without the con- Place, 462 States v. United of Reed’s The offi- tents dresser drawers. (1983), and one L.Ed.2d properly cers obtained a warrant before place in a The private that takes home. making drug sweep. police, a full-scale The Fourth Amend- former does not constitute a short, overreach, they did not nor did upon because it not intrude ment search does intentionally violate constitutional legitimate expectation privacy, but rights. be- may under some circumstances latter heightened privacy expectations cause would, accordingly, I AFFIRM the district Thomas, 757 F.2d at private in a home. respects, in all I concur court’s decision Place, 1366-7. See also colleague’s that my analysis as to all but (concluding partic- “that the at 2644-45 that a ca- portion holding of Section III.A. investigation agents ular course can never nine sniff be a Fourth Amendment here—exposure of pursue intended search. luggage, located in a which was [Place’s] public place, to trained canine—did meaning of a ‘search’ within the constitute added). Amendment”) (emphasis

the Fourth majority cases which identifies

The two easily criticizing the are as Thomas decision CLUB, A OF WAL- SAM’S DIVISION from case. The distinguishable the instant CORPORATION, MART Petition- involved a canine sniff of Colyer case trained er/Cross-Respondent, roomette,” an “the exterior of Amtrak view, different, my privacy far intrusion in one’s

from a search dresser drawers NATIONAL RELATIONS LABOR Colyer, apartment. United States BOARD, Respondent/Cross- (D.C.Cir.1989). Ninth Cir- Petitioner. inap- Lingenfelter similarly cuit’s decision is Nos. 96-6586. posite. That ease involved a trained canine Appeals, States warehouse, Court criti- of a and the court search Sixth Circuit. holding only Thomas dicta after cized police action challenging the defendants Argued 1998. Feb. Lingenfel- standing. United lacked April Decided 1998. ter, This 636-8 Colyer andLingenfelterbotb ease differs heightened privacy interest

because and because consented

one’s home

Case Details

Case Name: United States v. Joseph J. Reed

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 15, 1998

Citation: 141 F.3d 644

Docket Number: 96-4174

Court Abbreviation: 6th Cir.