CA8: Pre-Jardines dog search at the door saved by Davis good faith; Jardines had been already argued

A drug dog alerted at defendant’s door. After the motion to suppress was filed, but before it was heard, Jardines was decided. Because Eighth Circuit precedent allowed the use of a dog at the door prior to Jardines, the Davis good faith exception applies. The fact Jardines had been argued at the time of the search doesn’t change the result. United States v. Davis, 2014 U.S. App. LEXIS 14400 (8th Cir. July 29, 2014):

Davis argues that the good faith exception in Davis should not apply to the dog sniff because Scott was not longstanding precedent at the time of the search and dog sniffs of residences were not routine law enforcement practices, unlike the officers’ reliance on longstanding Eleventh Circuit precedent in Davis, 131 S. Ct. at 2425-26. The premise of the argument is unsound, because our Fourth Amendment analysis in Scott was well-grounded in a prior dog-sniff decision of this court, United States v. Roby, 122 F.3d 1120, 1124-25 (8th Cir. 1997), and in the Supreme Court’s dog-sniff decision in United States v. Place, 462 U.S. 696 (1983), on which Roby relied. Moreover, nothing in the majority opinion in Davis suggested that its good faith exception is limited to longstanding judicial precedent or to routine law enforcement practices. “[W]hen binding appellate precedent specifically authorizes a particular police practice,” the Court explained, “well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities.” Davis, 131 S. Ct. at 2429 (emphasis in original). Applying the exclusionary rule in these circumstances would “penalize the officer for the appellate judges’ error.” Id.

Davis further argues that the officers could not have reasonably relied on Scott because the Supreme Court had heard argument in Jardines, casting doubt on Scott’s vitality. We rejected that argument in Barraza-Maldonado, concluding that officers reasonably relied on binding circuit precedent when, without a warrant, they installed a GPS device to monitor the movements of a car prior to the Supreme Court’s decision in United States v. Jones, 132 S. Ct. 945 (2012). “Officers should not be faulted for adhering to existing precedent until that precedent is authoritatively overruled,” we explained. Barraza-Maldonado, 732 F.3d at 869. “When the police comply with authoritative precedent, only to see the law evolve after the fact, there is nothing to deter; the police cannot modify their conduct to accord with cases not yet decided.” Id., quoting United States v. Sparks, 711 F.3d 58, 63 (1st Cir.), cert. denied, 134 S. Ct. 204 (2013). The same is true in this case. Scott had not been “authoritatively overruled” at the time of the dog sniff in question.

Because the officers reasonably relied on binding circuit precedent in conducting a dog sniff outside the door to Apartment 5, the exclusionary rule did not apply to preclude use of that evidence in the search warrant application. Therefore, the warrant was valid, and Davis’s motion to suppress was properly denied.