STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Scott Evan Davis,
Filed April 11, 2006
File No. K4-04-2811
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN
Backstrom, Dakota County Attorney, Vance B. Grannis, III, Assistant County
Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033
Patrin, Meaney & Patrin, P.A., 1902
Main Street, Hopkins, MN 55343
Considered and decided by Lansing,
Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
S Y L L A B U S
A dog sniff in a common hallway of
an apartment complex is not a search under the Fourth Amendment of the United
States Constitution because a reasonable expectation of privacy in the hallway
does not exist. A dog sniff in a common
hallway is a search under the Minnesota Constitution and, because of the
limited expectation of privacy in a common hallway, requires a reasonable,
articulable suspicion of drug-related activity.
O P I N I O N
After receiving complaints
of odors of drugs from apartment-complex employees, law-enforcement officers
performed a dog sniff in a common hallway of appellant’s apartment. The dog alerted to the odor of illegal
drugs. The officers then obtained and
executed a search warrant and seized drugs and drug paraphernalia from
appellant’s apartment. The district
court denied appellant’s motion to suppress the evidence seized from the
search. On appeal, appellant argues that
the dog sniff was a search that required probable cause or, alternatively, that
a reasonable, articulable suspicion did not exist. We affirm.
In August 2004, employees of the apartment
complex in which appellant Scott Evan Davis resided informed agents of the
Dakota County Drug Task Force that they had observed activated growing lights
in Davis’s apartment and believed he was growing marijuana. They also stated that they had attempted to
investigate a water leak inside Davis’s
apartment but that he did not permit them to enter. According to the search-warrant application,
a drug-sniffing dog was brought to the apartment complex to “investigate the
odor of narcotics on the first floor” and alerted to the presence of illegal
drugs at the “threshold of [Davis’s]
apartment.” Based upon the observations
of the apartment-complex employees and the dog’s alert, agents were issued a
no-knock search warrant. The agents
executed the warrant on Davis’s
apartment using a key provided by apartment-complex management. The agents discovered and seized marijuana,
drug paraphernalia, a mushroom-growing kit, and a handgun. Davis
was arrested and charged with controlled-substance crimes for possession of marijuana
and drug paraphernalia. Davis brought a motion to suppress the
evidence, alleging that it was obtained in violation of his federal and state constitutional
rights. The district court denied
Davis’s motion and concluded that there was (1) a reasonable, articulable
suspicion of illegal activity to support “using a drug-sniffing canine in the
common hallway outside [Davis’s] apartment” and (2) adequate probable cause,
based on the dog sniff and the employees’ observations of the growing lights,
to support the issuance of a search warrant of his apartment. Davis then
entered a not-guilty plea, submitted the matter to the district court under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and was
found guilty of controlled-substance crimes for possession of marijuana and
drug paraphernalia. The district court
imposed sentence, then stayed the sentence pending appeal, and Davis appealed the district court’s denial of
his motion to suppress the evidence.
1. Does use
of a drug-sniffing dog in the common hallway of an apartment building constitute
a search that requires probable cause under the federal and state
probable cause is not required, did a reasonable, articulable suspicion exist to
conduct the dog sniff in the common hallway of the apartment building?
Davis first argues that probable cause must
exist before law enforcement can conduct a dog sniff “at [his] apartment
door.” The district court decided that
the “more persuasive cases have found that a canine sniff of a common hallway
in an apartment building has Fourth Amendment implications and must be
supported by reasonable articulable suspicion.”
bases his argument on the premise that a residence has a greater privacy
protection against searches than a seized vehicle or a storage unit. He concludes that, because probable cause
should be required, the warrantless dog sniff violated his federal and state constitutional
rights, and the evidence seized as a result of the warrant should be
When reviewing pretrial orders on
motions to suppress evidence, appellate courts “independently review the facts
and determine, as a matter of law, whether the district court erred in
suppressing—or not suppressing—the evidence.”
State v. Harris, 590 N.W.2d
90, 98 (Minn.
1999). Under the Fourth Amendment,
whether a dog sniff is a search depends on (1) the level of a person’s
expectation of privacy in the place where the sniff occurs and (2) the level of
intrusiveness of the sniff. State v. Carter, 697 N.W.2d 199, 207 (Minn. 2005) (citing
United States v. Place, 462 U.S.
696, 707, 103 S. Ct. 2637, 2644-45 (1983)
(holding that a dog sniff of the exterior of luggage in a public airport does
not constitute a search under the Fourth Amendment)). The intrusiveness of a dog sniff is minimal
because it does not require exposure of the contents of the item being searched
or noncontraband items that would otherwise remain hidden from view. Place,
462 U.S. at 707, 103 S. Ct. 2644-45. It
is also “much less intrusive than a typical search . . . [because
it] discloses only the presence or absence of narcotics, a contraband
item.” Id. See
also Illinois v. Caballes, 543 U.S. 405, ___, 125 S. Ct. 834, 838 (2005)
(reaffirming Place’s labeling of a
dog sniff as “sui generis” and ruling that a “dog sniff conducted during a
concededly lawful traffic stop that reveals no information other than the
location of a substance that no individual has any right to possess does not
violate the Fourth Amendment”).
The expectation-of-privacy element,
however, has been subjected to fine line drawing. The United States Supreme Court has found diminished
expectations of privacy in luggage in a public airport and in a barn that is
outside of a home’s “curtilage.” See
Place, 462 U.S. at
706-07, 103 S. Ct. at 2644; United States v. Dunn, 480 U.S.
294, 301, 107 S. Ct. 1134, 1139 (1987). The Eighth Circuit Court of Appeals has concluded
that a person does not have a “reasonable expectation of privacy in the hallway
of [an] apartment building.” United
States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977). “[C]ommon hallways . . . [are]
available for the use of residents and their guests, the landlord and his
agents, and others having legitimate reasons to be on the premises.” Id. The Eisler
court found irrelevant the fact that the building had secure entrances – the
“locks on the doors to the entrances of the apartment complex were to provide
security to the occupants, not privacy in common hallways.” Id. See
also United States v. McGrane, 746 F.2d 632, 634 (8th Cir. 1984) (relying
on Eisler and holding that a person
has no expectation of privacy in a “common area . . . accessible
to all tenants and the landlord” of an apartment building).
conclude that a dog sniff in a common hallway is not a Fourth Amendment
search. Davis does not have a reasonable expectation
of privacy in the common hallway of the apartment building. The dog sniff’s level of intrusiveness was
minor. First, the search-warrant application
refers to “the odor of narcotics on the first floor.” This observation was made before any dog
sniff and suggests that the odor of narcotics existed in the hallway and was detectable
through a human being’s sense of smell.
Second, we disagree with Davis’s
characterization that the dog “detect[ed] the presence of illegal narcotics inside
home.” The evidence in the record shows
that the dog sniffed only in the common hallway. The detected scent may have originated from within Davis’s apartment, but it was detected outside the apartment by the dog.
Davis relies on United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985), to support
his proposition that the dog sniff required probable cause. Thomas
held that “because of [a defendant’s] heightened expectation of privacy inside
his [apartment], the canine sniff at his door constituted a search.” Id. at
1367. We disagree with the reasoning of Thomas, a decision which has been widely
discredited by several courts. See, e.g., United
States v. Reed, 141 F.3d 644, 649-50 (6th Cir. 1998)
(noting that “Thomas seems to stand
alone in its pronouncement that a canine sniff may constitute an unreasonable
search” and “ignores the Supreme Court’s determination in Place that a person has no legitimate privacy interest in the
possession of contraband”); United States
v. Lingenfelter, 997 F.2d 632, 638 (9th Cir. 1993) (providing that Thomas “rests on an incorrect statement
of the law”); United States v. Colyer,
878 F.2d 469, 475 (D.C. Cir. 1989) (stating that the “correctness of the Thomas decision is called into question
by its assertion that the defendant ‘had a legitimate expectation that the
contents of his closed apartment would remain private’”); State v. Miller, 647 N.W.2d
348, 351 n.5 (Wis. App. 2002) (stating that Thomas
is “questionable given Place’s broad
our analysis does not end with the Fourth Amendment. We must also determine whether the dog sniff
was a search under the Minnesota Constitution. The Minnesota Supreme Court has addressed dog
sniffs on two recent occasions. It first
ruled that a dog sniff of the exterior of an automobile legitimately stopped
for a traffic offense is not a search requiring probable cause. State
v. Wiegand, 645 N.W.2d 125, 133 (Minn.
2002). The court noted that the privacy
expectation surrounding an automobile is less than that of a home and that “an
exterior sniff of an automobile does not require entry into the car and is not
designed to disclose any information other than the presence or absence of
narcotics.” Id. at 131 (quoting City of Indianapolis v. Edmond, 531 U.S. 32, 40,
121 S. Ct. 447 (2000)). But the supreme
court also noted that a dog sniff “detects something that the public generally
cannot detect” and that there is “some intrusion into privacy interests.” Id. at
134. It concluded that an officer cannot
conduct a dog sniff “around a motor vehicle stopped for a routine equipment
violation without some level of suspicion of illegal activity. While the officer need not have probable
cause, the officer may not be motivated by ‘mere whim, caprice, or idle
curiosity.’” Id. (quoting State v. Pike, 551 N.W.2d 919, 921-22 (Minn. 1996)). The court concluded that an “officer must
have a reasonable, articulable suspicion of drug-related criminal activity” to
lawfully conduct a dog sniff around the exterior of a motor vehicle. Id. at
137. The majority specifically rejected
the special concurrence’s “bald conclusion . . . that the
‘level of intrusion resulting from a dog sniff is significant and requires
probable cause.’” Id.
at 131 n.5.
2005, the supreme court addressed a dog sniff around the exterior of an
individual storage unit at a self-storage facility. State
v. Carter, 697 N.W.2d 199 (Minn.
2005). The court stated that “the expectation of
privacy under the Fourth Amendment is less for a storage unit than for a home”
because the “unit is not a place where a person seeks refuge or conducts
frequent personal activities.” Id.
at 209. It concluded that a “dog sniff
in the area immediately outside a self-storage unit is not a search under the
Fourth Amendment.” Id. But the supreme court also concluded that the
dog sniff was a
search under the Minnesota Constitution that required a reasonable, articulable
suspicion of drug-related activity. “[A]
person’s expectation of privacy in a self-storage unit is greater for purposes
of the Minnesota Constitution than it has been determined to be under the
Fourth Amendment.” Id.
detection dog may be deployed to test for the presence of narcotics [in the
area outside a storage unit] where:
1. the police are able to articulate reasonable
grounds for believing that drugs may be present in the place they seek to test;
2. the police are lawfully present in the place
where the canine sniff is conducted.
at 212. This standard properly balances
a “person’s privacy interests against the public’s interest in effective
criminal investigations.” Id.
conclude that a dog sniff in the common hallway of an apartment building is a
search under the Minnesota Constitution that requires only a reasonable,
articulable suspicion. This conclusion
is compelled by the supreme court’s statement that the “permissibility of the
use of dogs in other settings for other purposes must be evaluated based on
whether the privacy expectation is one society is willing to deem reasonable,
and not on subjective perceptions of the intrusiveness of the investigative
method.” Wiegand, 645 N.W.2d at 131 n.5.
A person does not have a reasonable expectation of privacy in the common
hallway of an apartment building.
relies on the United States Supreme Court’s decision in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001), to
support his argument that probable cause is required for a dog sniff in a
common hallway. Kyllo held that the use of a thermal-imaging device to detect heat
levels inside a home was a search under the Fourth Amendment that required
probable cause. Id. at 40, 121 S. Ct. at 2046. In
Wiegand, the Minnesota Supreme Court noted
that the reasoning of Kyllo “suggests
that a dog sniff of a home might lead a court to conclude that a search
requiring probable cause took place.”
645 N.W.2d at 130. Kyllo, however, involved an
investigative technique that detected infrared radiation inside a home. 533 U.S.
at 29, 121 S. Ct. at 2041. Here, the dog detected the odor of narcotics that
emanated outside Davis’s
apartment. There was no intrusion into
the interior of Davis’s
apartment. Rather, his illegal activity inside
manifested itself through an odor that had escaped into a common area.
Davis argues a
reasonable, articulable suspicion did not exist for a dog sniff. The district court ruled that the information
received from the apartment-complex employees provided a reasonable,
articulable suspicion to justify the sniff.
articulable suspicion is determined by reviewing the totality of the
circumstances. State v. Martinson, 581 N.W.2d 846, 852 (Minn. 1998).
A police officer must “articulate something more than an ‘inchoate and
unparticularized suspicion or hunch.’” Id.
at 850. “The principal components of a
determination of reasonable suspicion will be the events which occurred leading
up to the stop or search, and then the decision whether these historical facts,
viewed from the standpoint of an objectively reasonable police officer, amount
to reasonable suspicion.” Id. Moreover, the “officer must have a
reasonable, articulable suspicion of drug-related criminal activity” to lawfully
conduct a dog sniff. Wiegand, 645 N.W.2d at 137.
law-enforcement officer first learned from employees of the apartment complex
that activated growing lights had been observed in Davis’s
apartment and that Davis
would not permit their entry into his apartment to investigate a possible water
leak. Private-citizen informants are
“presumed to be reliable.” Marben v. State, Dep’t of Pub. Safety,
294 N.W.2d 697, 699 (Minn.
1980). “When evaluating tips, courts are
to ‘make a practical, common-sense decision whether, given all the
circumstances . . . including the ‘veracity’ and ‘basis of
knowledge’ of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.’” State v. Burbach, 706 N.W.2d 484, 490 (Minn.
2005) (quoting Illinois v. Gates, 462
U.S. 213, 238, 103 S. Ct. 2317 (1983)).
The tip “must provide at least some specific and articulable facts to
support the bare allegation of criminal activity.” Rose v.
Comm’r of Pub. Safety, 637 N.W.2d 326, 329 (Minn. App. 2001). The employees provided specific information
that they had observed activated growing lights inside Davis’s apartment and believed he was growing
marijuana. This is more than supplying
“hearsay evidence”; the employees had physically observed the activated growing
lights. Moreover, the search-warrant
application indicates that a person had detected the odor of narcotics on the
first floor of the apartment complex. This
evidence provides a reasonable, articulable suspicion of drug-related activity
that is not based on the officer’s hunch, and the dog sniff did not violate Davis’s rights under the
Davis argues that the
presence of activated growing lights could only raise a hunch of drug-related
activity and is no different than a marijuana symbol on a key chain. See State v. Tomaino, 627 N.W.2d 338, 341 (Minn. App. 2001). A key chain has no plausible link to
drug-related activities. Growing lights,
however, are used in drug-related activities.
v. Olson, 482 N.W.2d 212, 214 (Minn.
1992) (growing lights used to grow marijuana in a barn); State v. Velishek, 410 N.W.2d 893, 895 (Minn. App. 1987) (growing
lights used to grow marijuana in a basement).
also argues that the apartment-complex employees observed only growing lights
but not the “presence of any illegal drugs or paraphernalia.” An informant, however, is not required to
observe criminal activity. The informant
only needs to provide facts sufficient to support a “bare allegation of
criminal activity.” Rose, 637 N.W.2d at 329.
note the difficulty under which law enforcement operates in attempting to
determine whether a dog sniff is a search under the federal or state
constitutions. Perhaps our decision
today offers clear guidance in the context of an apartment complex: a dog sniff
in the common hallway of an apartment is permissible so long as law enforcement
has a reasonable, articulable suspicion of drug-related activity.
D E C I S I O N
The dog sniff in the common hallway
of the apartment complex was not a search under the Fourth Amendment. The dog sniff was a search under the
Minnesota Constitution that required a reasonable, articulable suspicion of
drug-related activity. A reasonable,
articulable suspicion existed from the information provided by the
apartment-complex employees that appellant had activated growing lights in his