ND: Dog sniff in condominium hallway was not curtilage

Dog sniff in the common hallway of a condominium is different than Jardines’s porch. There is a much lesser reasonable expectation of privacy there, and the dog sniff was valid. (Among a split of authority.) State v. Williams, 2015 ND 103, 2015 N.D. LEXIS 103 (April 28, 2015):

[¶19] The Eighth Circuit Court of Appeals has discussed Jardines, but it has not directly applied its principles as the searches at issue were conducted before Jardines was decided in March 2013. See United States v. Givens, 763 F.3d 987, 992 (8th Cir. 2014) (apartment door drug dog sniff); United States v. Davis, 760 F.3d 901, 905 (8th Cir. 2014) (apartment door drug dog sniff). Other courts have reached different conclusions when interpreting and analyzing Jardines. See State v. Dumstrey, 859 N.W.2d 138, 146 (Wis. Ct. App. 2014) (shared parking garage was not curtilage); State v. Kono, No. CR12026461, 2014 WL 7462049, *5 (Conn. Super. Ct. Nov. 18, 2014) (drug dog sniff of common hallway of condominium unit was a search); United States v. Penaloza-Romero, No. 13-36, 2013 WL 5472283, *7-9 (D. Minn. Sept. 30, 2013) (apartment common hallway was not curtilage).

[¶20] The State argues this Court’s decision in Nguyen is controlling and should be upheld. In Nguyen, police officers entered a secured apartment building with a drug canine to investigate a reported smell of marijuana. 2013 ND 252, ¶¶ 2-3, 841 N.W.2d 676. After the dog alerted to Nguyen’s apartment door, a search warrant was obtained, and Nguyen was charged with possession of marijuana with intent to deliver and drug paraphernalia. Id. at ¶¶ 3-5. Nguyen moved to suppress evidence, arguing the warrantless sweep of the building was an illegal search; the trial court granted his motion, and the State appealed. Id. at ¶ 5. Noting the Eighth Circuit Court of Appeals and other circuit court of appeals have consistently held tenants of multi-family dwellings do not have a legitimate expectation of privacy in common areas, this Court found the apartment building’s common hallways were “available for the use of tenants and their guests, the landlord and his agents, and others having legitimate reason to be on the premises,” and Nguyen could not exclude individuals from the area. Id. at ¶¶ 9-10. Concluding the building’s common hallway was not curtilage, this Court held the drug sniff was not a search under the Fourth Amendment. Id. at ¶ 13.

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[¶26] Because we conclude the common hallway was not an area within the curtilage of Williams’ condominium and Williams did not have a reasonable expectation of privacy in the area, we hold the law enforcement officer’s use of a drug canine in the building’s common hallway did not violate Williams’ Fourth Amendment rights against unreasonable searches and seizures, and the district court did not err in denying Williams’ motion to suppress evidence.