Opinion
No. 8:99CR144.
December 1999.
REPORT AND RECOMMENDATION
Defendant's Motion to Suppress (#30) came on for evidentiary hearing and oral argument on October 26, 1999. The hearing transcript has been filed at #41. The final post-hearing brief was submitted on November 22, 1999, at which time the motion was deemed at issue.
Defendant challenges the legality of the search of his apartment and subsequent arrest by law enforcement officers on August 8, 1997. Although the search was conducted pursuant to a warrant, defendant contends the warrant was issued only as a direct result of a prior illegal search, specifically, a police officer's use of a drug detection dog in the interior hallway of the apartment building after receiving an anonymous tip that defendant had distributed cocaine from his apartment within the past year.
For the reasons explained below, I shall recommend that the motion to suppress be denied.
FACTUAL BACKGROUND
Omaha Police Officer Mark Lang testified that he has been a police officer for 13 years and has been assigned to the narcotics unit for the past eight years. (11:12-25). The narcotics unit investigates individuals who are involved in the distribution of illegal narcotics in the Omaha area. The officers investigate persons from source cities and utilize wiretaps and search warrants. (12:1-6).
In August 1997, Officer Lang became involved in an investigation of defendant Ortiz. According to Lang, an anonymous "concerned citizen" telephoned Lang and told him that Eddie Ortiz was active in distributing cocaine from his apartment at 809 So. 70th Street, Apartment 6. The caller described Ortiz as an Hispanic male, mid-twenties, with a small build, and told Lang that Ortiz had been distributing cocaine from the apartment within the past year. (20:23-1-5; 29:10-24; Ex. 1). The caller was not working for the Omaha Police Department as an informant or cooperating witness. (28:1-5).
After receiving this information, Lang contacted the management of the apartment building and found that an Eddie R. Ortiz Jr. lived in Apartment 6 and had lived there since July 1, 1995. Lang consulted the Douglas County Computer and located "Eddie R. ORTIZ Jr., Hispanic male, DOB: 6/30/68, 5'3", 130 pounds, brown hair, brown eyes, SSN: 559-35-2703." A records check showed that on July 28, 1991, Ortiz was charged with possession of a controlled substance for which he received a 6-month jail term. On January 10, 1994, Ortiz was charged with possession with intent to deliver marijuana and possession with intent to deliver hashish; these charges were dismissed. On July 28, 1991, Ortiz was charged with carrying a concealed weapon and unregistered firearm; the County Attorney declined to prosecute these charges. Other than this information, Lang did not personally know or have any other information about Ortiz. (21:9-23:20; Ex. 1, p. 2).
Officer Lang conveyed this information to Officer Doug Henry and arranged for a drug detection dog, Pogo, to sniff the hallway outside Ortiz' apartment. Officer Henry is a detective assigned to the Omaha narcotics unit and was Pogo's handler at that time. (16:15-25; 138:1-18). Pogo is a certified drug detection dog, trained and certified by Rudy Drexler's School for Dogs, in Elkhart, Indiana. Officer Henry has received 120 hours of training as a drug detection dog handler and is certified by Rudy Drexler's School for Dogs. Pogo has been trained to alert to the odors of marijuana, cocaine, cocaine base, methamphetamine, amphetamine and heroin. Pogo was trained to an aggressive alert, meaning that he indicates to the odor of drugs by scratching, biting and barking. (151:3-12). Officer Henry has conducted in-service training with Pogo on a regular and ongoing basis. (138:19-141:25; Ex. 1, p. 2). Officer Lang testified that Pogo had worked with the narcotics unit since 1991 and, based on his previous experiences with Pogo, Lang had no reason to doubt Pogo's reliability or Henry's competence as a dog handler. (24:20-26:1).
The apartment building in question is a two-story building containing multiple apartments. There is a locked security door from the outside to stairwells and long carpeted hallways leading to the various apartments. The building is secured in the sense that one must have a key or know the security code in order to open the outside door. The building was well-lit and there were security doors on both ends of the building. There were no signs on the security doors prohibiting trespassing or soliciting, or indicating who was allowed inside the building. Officer Lang testified that he had been working with the management at this apartment complex "for quite some time." The management had given Lang keys and security codes to unlock the security doors of the apartment buildings. (35:13-37:19).
On August 7, 1997, at approximately 8:45 p.m., Officers Lang, and Kirk Kunze met Officer Henry and Pogo at the apartment building. The outside security door was locked; however, Lang had a key or knew the entry code and was able to unlock the door. (38:1-7). Lang stood at the end of the main hallway while Henry walked down the hallway past a number of apartment doors to Apartment 6. In the hallway, Pogo alerted to Ortiz' apartment, indicating the presence of narcotics. (17:6-18:25; 142:1-25).
Officer Lang described the door to Apartment 6 as a solid wood door with no screen door or windows. The only ventilation from the apartment to the hallway was through the threshold or seams of the door. (19:1-20:13).
Officer Henry testified that he first looked at the hallway and then retrieved Pogo and took Pogo into the hallway. Henry directed Pogo to sniff the hallway at a point down the hall from Apartment 6. Pogo sniffed the side of the hallway where Apartment 6 was located. When Pogo got to the door of Apartment 6, he stopped and alerted to the odor of an illegal drug for which he was trained to detect. In alerting, Pogo barked and scratched at the base of the door, indicating to Henry that there was an odor coming from inside the apartment through the crack in the closed door. Based on his training and experience, Officer Henry concluded that an odor of drugs was emanating from the crack beneath the door of Apartment 6. (145:2-147:1). Pogo did not alert to any of the other doors in the apartment building. (147:24-25).
Officer Lang testified that he had no reason to believe it was improper for him to have Officer Henry take his dog to sniff the door of Apartment 6. He believed he had enough of an articulable suspicion of narcotics trafficking in Apartment 6 to justify utilizing Pogo. (26:2-13; 39:7-23).
Based on the information summarized above, Officers Kunze and Lang prepared an affidavit and application for issuance of a search warrant and obtained a no-knock search warrant from a Douglas County District Court judge. Although Lang described the information in the warrant affidavit as "pretty limited," he believed that it was enough to obtain a search warrant for Apartment 6. (33:18-34:25).
The officers did not conduct surveillance on the apartment building or attempt to examine Ortiz' garbage before applying for a search warrant. (30:16). Officer Lang described the facility as having a "communal trash dump." Searching Ortiz' trash was not feasible because the officers would have to watch Ortiz leave his apartment, have a description of the trash bag, watch Ortiz place the bag in the trash dumpster along with trash from other apartments, and then try to retrieve the bag. (30:20-25).
The warrant (Ex. 1) was served on August 11, 1997. (12:7-22). Lang testified that he read the search warrant before serving it, and, based on his experience in obtaining and serving search warrants, had no reason to believe that the warrant was not valid. (15:14-16:14).
The following information, known by Officer Henry, was not included in the search warrant application prepared by Officers Kunze and Lang. Officer Henry testified that he was familiar with defendant Ortiz prior to August 7, 1997, because the narcotics unit had received information on previous occasions regarding Ortiz' drug dealing activity. Henry was involved in an investigation in approximately 1992 where uniformed officers seized a small quantity of marijuana from Ortiz. Another narcotics officer reportedly received information that Ortiz was involved with several others in distributing multi-pound quantities of marijuana. They conducted intermittent surveillance of Ortiz and the other individuals involved. On one occasion, the narcotics officers located a vehicle they believed belonged to Ortiz that Ortiz would be driving. The vehicle was stopped for a traffic violation, leading to a misdemeanor conviction of Ortiz for possession of a small amount of marijuana. (143:1-144:20; 148:24-149:5).
Defendant was ultimately charged with state and federal offenses. He was convicted in Nebraska state court of two counts of unlawful possession with intent to deliver controlled substances. See State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999).
ISSUES PRESENTED
Defendant initially argued that the search warrant application prepared by Officers Kunze and Lang did not contain sufficient facts to establish probable cause because (1) the information supplied by the anonymous caller was not sufficiently corroborated, and (2) the reliability of Pogo's alert was not sufficiently established. Defendant also argues that the "good faith" exception of United States v. Leon, 468 U.S. 897 (1984), should not apply because the officers prepared the search warrant application with reckless disregard for the truth.
The same day defendant filed his motion to suppress (October 1, 1999), the Nebraska Supreme Court issued a decision reversing defendant's state court conviction and remanding the matter for a new trial. In that decision, the Nebraska Supreme Court concluded that evidence obtained as a result of the August 7, 1997 search should have been suppressed because the officers acted improperly in taking Pogo, an "investigative tool," to defendant's apartment building to sniff the hallway outside Ortiz' apartment. The court found that the officers lacked a reasonable, articulable suspicion of criminal activity so as to justify the deployment of a drug detection dog. State v. Ortiz, 257 Neb. at 802, 600 N.W.2d at 820. Excising the information generated by Pogo's alert, the remainder of the warrant application did not establish probable cause. Id. at 804-807, 600 N.W.2d at 821-823. The State did not ask the Nebraska Supreme Court to consider the Leon good faith exception.Id. at 807, 600 N.W.2d at 823 ("The State has not asked that we consider the good faith exception under United States v. Leon, [ 468 U.S. 897] (1984), and, accordingly, we do not engage in such an analysis.").
Defendant's post-hearing brief addresses the issue of good faith. He contends the Leon good faith exception does not apply in this case because the police engaged in an illegal search by utilizing Pogo at the threshold of defendant's apartment door. In other words, the officers lacked probable cause, or even a reasonable suspicion of criminal activity, sufficient to justify the deployment of a drug detection dog.
LEGAL ANALYSIS
The question presented is whether the search warrant in question was issued upon probable cause under the "totality of the circumstances." The task of the issuing judge was "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability" that evidence of a crime would be present. See Illinois v. Gates, 462 U.S. 213, 238 (1983);United States v. Rich, 795 F.2d 680, 682 (8th Cir. 1986). The duty of this court, as a reviewing court, is simply to "ensure that the magistrate or issuing judge had a `substantial basis for . . . conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). Great deference is afforded the issuing judge's determination of probable cause. Illinois v. Gates, 462 U.S. at 236; United States v. Arenal, 768 F.2d 263, 266 (8th Cir. 1985).
A. Was caller's information sufficiently corroborated?
Defendant first argues that the search warrant was not issued upon probable cause because the information given to Officer Lang by the anonymous caller was not sufficiently corroborated. In Alabama v. White, 496 U.S. 325 (1990), the Court held that an anonymous tip corroborated by independent police work can carry sufficient indicia of reliability to provide reasonable suspicion to make an investigatory stop. Similarly, the statements of an anonymous informant may serve as a basis for the issuance of a search warrant if the information is corroborated by independent police investigation or otherwise shown to be reliable. See, e.g., United States v. Bell, 183 F.3d 746 (8th Cir. 1999); United States v. Cox, 942 F.2d 1282 (8th Cir. 1991), cert. denied, 503 U.S. 921 (1992); United States v. Gibson, 928 F.2d 250 (8th Cir. 1991).
As the Eleventh Circuit recently explained,
"[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts[.]" Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To avoid "rigid" legal rules, Gates changed the "two-pronged test" of Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), into a totality of the circumstances test. See Gates, 462 U.S. at 230-35, 103 S.Ct. 2317. Under the Gates totality of the circumstances test, the "veracity" and "basis of knowledge" prongs of Aguilar, for assessing the usefulness of an informant's tips, are not independent. "[T]hey are better understood as relevant considerations in the totality of the circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for . . . by a strong showing as to the other[.]" Id. at 233, 103 S.Ct. 2317.United States v. Brundidge, 170 F.3d 1350, 1352-53 (11th Cir. 1999). The Brundidge court held that independent police corroboration of a confidential informant's tip is not requiredper se in each and every case, for the purpose of establishing probable cause for a search warrant:
First, as we have discussed, Gates criticizes per se rules for the determination of probable cause. Second, independent police corroboration has never been treated as a requirement in each and every case. See United States v. Harris, 403 U.S. 573, 576, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971) (approving, without discussing corroboration, an affidavit with no police corroboration); United States v. Farese, 612 F.2d 1376, 1378 (5th Cir. 1980) (even though some corroboration of informant's story took place, probable cause likely existed without corroboration). . . . Even under Aguilar's "two-pronged test," independent police corroboration was not explicitly required: the test talks only about the informant's veracity and basis of knowledge.
Brundidge, 170 F.3d at 1353.
In this case, Officer Lang confirmed that defendant Ortiz had lived in the apartment since July 1, 1995. The description of Ortiz found through the Douglas County computer matched that given by the anonymous caller. A records check showed that Ortiz had been suspected of drug and weapons offenses in 1991 and 1994 and had been convicted in 1991 for possession of a controlled substance.
Officer Lang testified that the police did not conduct surveillance on the apartment building and satisfactorily explained why they did not attempt to examine Ortiz' garbage before applying for a search warrant. It appears that Lang instead decided to use Pogo as a corroborative tool. The court finds that Pogo's positive alert outside defendant's apartment, combined with the other information gathered by Officer Lang, sufficiently corroborates the anonymous statement that Ortiz was active in distributing cocaine from the apartment.
B. Should "drug dog" information be stricken from search warrant application?
1. Reliability. Defendant first complains that the reliability of Pogo's alert was not sufficiently established in the search warrant affidavit. In United States v. Sundby, 186 F.3d 873 (8th Cir. 1999), the court held:
To establish the [narcotics detection] dog's reliability, the affidavit need only state the dog has been trained and certified to detect drugs. See [United States v. Kennedy, 131 F.3d 1371, 77 (10th Cir. 1997), cert. denied, 119 S.Ct. 151 (1998); United States v. Berry, 90 F.3d 148, 153 (6th Cir. 1996)]; United States v. Meyer, 536 F.2d 963, 966 (1st Cir. 1976). An affidavit need not give a detailed account of the dog's track record or education.See [United States v. Delaney, 52 F.3d 182, 188 (8th Cir. 1995)];Kennedy, 131 F.3d at 1376-77; Berry, 90 F.3d at 153; United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980)."
186 F.3d at 876. See also United States v. Delaney, 52 F.3d 182, 188-89 (8th Cir.), cert. denied, 516 U.S. 878 (1995). The warrant application in this case informed the issuing judge that Pogo was a certified drug detection dog, trained and certified by Rudy Drexler's School for Dogs, in Elkhart, Indiana; that Officer Henry had received 120 hours of training as a drug detection dog handler and was also certified by Rudy Drexler's School for Dogs; and that Pogo was trained to aggressively alert to the odors of marijuana, cocaine, cocaine base, methamphetamine, amphetamine and heroin. Under Eighth Circuit precedent, therefore, the reliability of Pogo's alert was properly established in the search warrant application.
2. Were the police officers and Pogo lawfully present in the hallway of defendant's apartment building?
Defendant also argues that any evidence obtained as the result of Pogo's positive alert should be suppressed because the police engaged in an illegal search by utilizing Pogo at the threshold of defendant's apartment door. As discussed above, the Nebraska Supreme Court decided this issue in Ortiz' favor. That decision, however, is not binding on this court, which must undertake its own de novo determination of the matter, applying federal constitutional standards. See United States v. Friend, 50 F.3d 548, 551 (8th Cir. 1995), vacated in part on other grounds, 517 U.S. 1152 (1996); United States v. Bell, 54 F.3d 502 (8th Cir. 1995), appeal after remand, 86 F.3d 820, cert. denied, 519 U.S. 955 (1996); United States v. Bieri, 21 F.3d 811, 816 (8th Cir.),cert. denied, 513 U.S. 878 (1994) ("In a federal prosecution, we evaluate a challenge to a search conducted by state authorities under federal Fourth Amendment standards. . . . A court must examine the legality of a search by state officers as if made by federal officers."); United States v. Johnson, 12 F.3d 827, 835 (8th Cir.), cert. denied, 511 U.S. 1095 (1994) (same).
I wish to emphasize that in making a de novo determination of this matter, a new evidentiary record has been created in this court. This record contains information not discussed in the Nebraska Supreme Court's opinion and, presumably, not introduced in evidence in the state court proceedings. Specifically, the record now explains how the police officers and Pogo gained access to the hallway of defendant's apartment building.
The uncontroverted evidence presented to this court shows that the manager of defendant's apartment complex gave Lang keys and security codes to unlock the security doors of the apartment buildings. In other words, Lang, known by the manager to be a police officer, was given unconditional access to the building. Fourth Amendment protection is strongest for a person's home and the curtilage or area around the home. United States v. Friend, 50 F.3d at 552. While defendant Ortiz may have had some expectation of privacy in the hallway of his apartment building, one must temper that expectation with the knowledge that the hallway is available for use by other residents, their guests, the landlord, the agents of the landlord, and whoever else may have legitimate reasons to be on the premises.
Under Eighth Circuit precedent, which is binding on this court, a tenant does not have a reasonable expectation of privacy in the common areas of an apartment building. United States v. McGrane, 746 F.2d 632 (8th Cir. 1984) (visual inspection of storage locker in basement of defendant's apartment building); United States v. Luschen, 614 F.2d 1164 (8th Cir.), cert. denied, 446 U.S. 939 (1980); United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977) (common hallways of apartment building).
Very recently, in United States v. McCaster, 193 F.3d 930 (8th Cir. 1999), police officers searched McCaster's Minneapolis apartment pursuant to a warrant authorizing a search of the apartment, including garages, outbuildings, and curtilage. The officers also searched a hall closet in a common area at the back of the duplex and found over 6 grams of cocaine. On appeal of his conviction, McCaster argued that the cocaine found in the hall closet should have been suppressed because the search warrant did not authorize a search of the closet. A divided Eighth Circuit panel declined to consider whether the closet fell within the definition of "curtilage," finding instead that McCaster did not show he had a legitimate expectation of privacy in the closet area:
Assuming for the sake of argument that the area is not curtilage, and thus not covered by the warrant, to challenge the constitutionality of the search, McCaster must demonstrate that he possessed a legitimate expectation of privacy in the particular area searched. See United States v. Nabors, 761 F.2d 465, 468 (8th Cir. 1985). Fourth Amendment rights may not be vicariously asserted. See id. In order to show a legitimate expectation of privacy in the searched premises, the person challenging the search has the burden of showing both a subjective expectation of privacy and that the expectation is objectively reasonable; that is, one that society is willing to accept. See Minnesota v. Olson, [ 495 U.S. 91, 96-97] (1990) (recognizing that an overnight guest has a reasonable expectation of privacy); Rakas v. Illinois, [ 439 U.S. 128, 130 n. 1] (1978). Several factors are relevant to this showing: whether the party has a possessory interest in the things seized or the place searched; whether the party can exclude others from that place; whether the party took precautions to maintain the privacy; and whether the party had a key to the premises. See,e.g., Rawlings v. Kentucky, [ 448 U.S. 98, 105] (1980); Nabors, 761 F.2d at 469. We have rejected the notion of a generalized expectation of privacy in the common areas of an apartment building. See United States v. McGrane, 746 F.2d 632, 634 (8th Cir. 1984).
Our review of the record shows that McCaster has failed to prove that he had a legitimate expectation of privacy in the hall closet. His assertion that the closet is not within the curtilage of his apartment undermines his assertion of an expectation of privacy in the closet. Moreover, he disavowed any possessory interest in the contents of the closet, failed to show any efforts to exclude others from the space, or any precautions to maintain privacy. The evidence showed that two other tenants, as well as the landlord, had access to the closet. In short, the evidence presented at the suppression hearing supports a finding that McCaster had no reasonable expectation of privacy in the hall closet. Under these circumstances, McCaster has no standing to challenge the search. To hold otherwise would allow a criminal to keep contraband from the legitimate reach of law enforcement by the simple act of storing it in a shared common area.
United States v. McCaster, 193 F.3d at 933.
3. Did Ortiz have a reasonable expectation of privacy?
In any event, federal precedent indicates that defendant Ortiz did not have a reasonable expectation of privacy in the odors emanating from his apartment, whether they be sensed by a human being or a dog. In United States v. Place, 462 U.S. 696, 706-707 (1983), which involved the detention of Place's luggage, the Supreme Court discussed the dog's role in the investigative procedure:
The purpose for which respondent's luggage was seized, of course, was to arrange its exposure to a narcotics detection dog. Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondent's luggage for the purpose of subjecting it to the sniff test — no matter how brief — could not be justified on less than probable cause. . . .
The Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations of privacy." . . . . We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. . . . A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude 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.
(Citations omitted).
This principle was applied in United States v. Pinson, 24 F.3d 1056 (8th Cir.), cert. denied, 513 U.S. 1057 (1994). Pinson was convicted on one count of manufacturing over 100 marijuana plants after government agents conducted aerial surveillance of his residence with a Forward Looking Infrared Device (FLIR). The FLIR observation revealed that the covered window on the third floor of Pinson's residence displayed an excessive amount of heat, as did the roof and a skylight of the residence. This intelligence, combined with other information, was used to obtain a search warrant for the residence on suspicion that marijuana was being cultivated on the premises. Pinson argued unsuccessfully on appeal that the use of the FLIR to detect the heat emanating from his home without first obtaining a warrant constituted an unreasonable search and seizure in violation of the Fourth Amendment.
We . . . find the use of the infrared surveillance analogous to the warrantless use of police dogs trained to sniff and identify the presence of drugs. See, e.g., United States v. Place, [ 462 U.S. 696, 707] (1983) (the use of nonintrusive equipment, such as a police-trained dog, does not constitute a search for purposes of the Fourth Amendment). Just as odor escapes a compartment or building and is detected by the sense-enhancing instrument of a canine sniff, so also does heat escape a home and is detected by the sense-enhancing infrared camera.
We conclude that Pinson did not have a reasonable expectation of privacy in the heat emanated from his home. Here, the FLIR device detected the differences in surface temperature from the heat being cast off or thrown away from the house. In this way, the use of the FLIR device is analogous to the detection of odors emanating from luggage or the search of garbage left outside for collection. Any subjective expectation of privacy Pinson may have had in the heat radiated from his house is not one that society is prepared to recognize as "reasonable." The detection of the heat waste was not an intrusion into the home; no intimate details of the home were observed, and there was no intrusion upon the privacy of the individuals within. None of the interests which form the basis for the need for protection of a residence, namely the intimacy, personal autonomy and privacy associated with a home, are threatened by thermal imagery.
In United States v. Harvey, 961 F.2d 1361 (8th Cir.), cert. denied, 506 U.S. 883 (1992), the court found that the initial removal of the defendant bus passengers' luggage from an overhead baggage area to facilitate a canine sniff was not "seizure" or "search" that had to rest upon probable cause. Following the Court's reasoning in United States v. Place, the Eighth Circuit concluded that the canine sniff did not constitute a search and thus did not implicate the Fourth Amendment. First, the canine sniff intruded upon no legitimate privacy interest because it could reveal nothing about noncontraband items. [United States v. Jacobsen, 466 U.S. 109, 123-24 (1984)]. Second, the canine sniff did not require any contact with the owners of the unattended baggage. The canine sniff did not cause the appellants to be detained or inconvenienced, and there is no evidence that it caused any annoyance or embarrassment.United States v. Beale, 736 F.2d 1289, 1291-92 (9th Cir.),cert. denied, 469 U.S. 1072 (1984)]. Third, defendants have no reasonable expectation of privacy in the ambient air surrounding their luggage, and that is all that Jupp [the dog] invaded.
Because people do not have a reasonable expectation of privacy in the odors emanating from their homes, luggage, vehicles, and other such places, the Eighth Circuit has consistently taken the position that a dog sniff, in and of itself, does not constitute a search within the meaning of the Fourth Amendment. While law enforcement officers do indeed need a reasonable articulable suspicion of criminal activity to detain a person or a person's property for purposes of investigation, see Terry v. Ohio, 392 U.S. 1 (1968), the police officers in this case did not detain or seize any person or property when they brought Pogo to the apartment building to sniff outside the door of defendant's apartment. Nor did the officers prevent defendant from accessing his apartment. The officers were lawfully present in the hallway of the apartment building because the building manager had given Lang keys and security codes to unlock the building's security doors. Compare United States v. Sundby, 186 F.3d 873 (8th Cir. 1999) ("If the district court finds the postal inspector lacked a reasonable suspicion that Sundby's package contained drugs, then detention of the package for the dog sniff violated Sundby's Fourth Amendment rights and the drugs must be suppressed.");United States v. Riley, 927 F.2d 1045 (8th Cir. 1991) (police officers needed reasonable suspicion, not probable cause, to detain airline passenger's suitcase and subject it to dog sniff).
In summary, (1) the police officers had been given unrestricted access to the common hallway of defendant's apartment building; (2) in conducting the canine sniff, the police officers did not detain or seize either the defendant or his property; (3) under Eighth Circuit precedent, the defendant had no reasonable expectation of privacy in the odors emanating from his apartment. The court therefore concludes that no Fourth Amendment search occurred when the officers took Pogo to the apartment building on the evening of August 7, 1997. Consequently, the officers did not need "reasonable suspicion" or "probable cause" to conduct that very limited investigation.
In any event, based on the testimony of Officer Henry, I find that the combined knowledge of Officers Lang, Kunze and Henry satisfies the "reasonable suspicion" standard. As noted above, Officer Henry, a narcotics unit detective, was personally familiar with defendant Ortiz after investigating his activities on several occasions. Based on the information Lang received from the anonymous caller, the information independently retrieved by Lang, and the information known by Officer Henry, I conclude that the officers could articulate a reasonable suspicion that narcotics trafficking had occurred in defendant's apartment and were justified in employing Pogo to either confirm or discredit that suspicion.
Based on the foregoing, I conclude that the "drug dog" information should not be stricken from the search warrant application.
C. Did the state court judge have probable cause to issue a search warrant for defendant's residence?
The Eighth Circuit has held that, "A search warrant based on a drug dog's alert is facially sufficient if the affidavit states the dog is trained and certified to detect drugs." United States v. Sundby, 186 F.3d 873, 875 (8th Cir. 1999). Having previously found that the reliability of Pogo's alert was properly established in the search warrant application, the court concludes that the search warrant was properly issued pursuant to Illinois v. Gates.
D. Application of Leon "good faith" exception.
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court recognized that "the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." Id. at 916. Accordingly, evidence obtained pursuant to a search warrant should not be excluded where the officers executed the warrant "with an objectively reasonable reliance on the magistrate's determination of probable cause." United States v. Riedesel, 987 F.2d 1383, 1391 (8th Cir. 1993).
The Court established four exceptions to the good faith exception: (1) when the judicial officer was misled by information in the affidavit that the affiant knew was false or included in the affidavit in reckless disregard of the truth; (2) where the issuing officer wholly abandoned the judicial role; (3) where the affidavit supporting the warrant contains so few indicia of probable cause as to render official belief in existence of probable cause "entirely unreasonable;" and (4) where the warrant itself was so facially deficient that no executing officer could reasonably presume it to be valid. None of these exceptions apply in this case.
Considering the Supreme Court and Eighth Circuit precedent discussed in this memorandum, it could not have been clear to the police officers that they needed "reasonable suspicion" or "probable cause" to deploy a dog to perform an action that does not constitute a Fourth Amendment search. Therefore, Leon "good faith" exception should apply in this case.
CONCLUSION
For all the reasons discussed above,
IT IS RECOMMENDED that Defendant's Motion to Suppress (#30) be denied.
Pursuant to NELR 72.4, any objection to this recommendation may be made by filing a "Statement of Objection to Magistrate Judge's Recommendation" within 10 days after being served with a copy of the recommendation. The statement of objection shall specify those portions of the recommendation to which objection is made and the basis of the objection. The objecting party shall submit to the district judge at the time of filing the objection a brief setting forth the party's arguments that the magistrate judge's recommendation should be reviewed de novo and a different disposition made. Failure to submit a brief in support of the objection may be deemed an abandonment of the objection. The failure to object to a finding of fact in a magistrate judge's recommendation in a dispositive matter may be construed as a waiver of that party's right to appeal the order of the district judge adopting the recommendation as to the finding of fact.