TX13 finds an “apartment curtilage” in dog sniff at door of inside apartment

Because defendant’s apartment was only one of two on the floor, and he kept plants outside the door, the court finds a curtilage in his apartment such that a dog sniff at the door invaded the curtilage. This situation is distinguished from an outside sidewalk. State v. Rendon, 2014 Tex. App. LEXIS 12936 (Tex. App.– Corpus Christi – Edinburg December 4, 2014):

According to Detective Stover’s testimony and affidavit requesting a search warrant, Baco sniffed the “bottom left portion” of Rendon’s apartment door and indicated the odor of narcotics “from within” Rendon’s apartment. However, facts [*10] from the record support Rendon’s curtilage argument, including that (1) Rendon’s apartment was the only apartment on the upper-left side of the building; (2) Rendon’s neighbor, John Crook, who lives in the apartment on the upper-right side of the building, testified that he hangs plants along the railing in front of his apartment; and (3) Defendant’s Exhibit 3, a photograph of Rendon’s apartment building taken from the parking lot, depicts that Rendon’s downstairs neighbor has chairs in the area immediately in front his apartment as well. Logically, this means that at the time of Baco’s sniff, Rendon’s door was closed, and the sniff occurred immediately in front of the apartment’s door. Based on this record, we conclude that the area immediately in front of Rendon’s apartment is no different from the front porch of a free-standing home. Thus, bringing a trained police dog to sniff the bottom left portion of Rendon’s apartment door in hopes of discovering incriminating evidence exceeded the scope of any express or implied license allowed under the Fourth Amendment. See Jardines, 133 S.Ct. at 1416 (noting that “the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.”).

The State misplaces its reliance on our sister court’s holding in Evans v. State, 995 S.W.2d 284, 285-87 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) to support its “common area” argument. We find Evans distinguishable and inapplicable. In Evans, the appellant sought to suppress evidence obtained from a search of her apartment on the basis that officers entered her apartment complex’s common areas in an unauthorized manner. Id. at 286. The present case does not deal with the common areas of an apartment complex, as discussed in Evans, such as parking lots and sidewalks, but rather the curtilage of Rendon’s apartment. Therefore, we hold that police conducted an unreasonable search by using a trained police dog to investigate the curtilage of Rendon’s apartment. See U.S. Const. IV; Tex. Const. art. I, § 9; see also Jardines, 133 S.Ct. at 1417-18.