Defendant lived in a condominium, and the management company gave the police access to the common areas for a dog sniff outside his unit’s door. The police had reasonable suspicion for the sniff. The court concludes that the area outside his condo door was not curtilage, recognizing a conflict with other jurisdictions. [The court’s error, in my estimation, is relying more on Dunn and subordinating Jardines. Hopefully, the Minnesota Supreme Court will take this up. The court rejects a different rule under the state constitution.] State v. Luhm, 2016 Minn. App. LEXIS 41 (May 31, 2016):
Whether a particular place is within the curtilage of a residence may be “determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326 (1987). The Supreme Court identified four such factors:
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.
Id. at 301, 107 S. Ct. at 1139. These factors are not a mechanistic formula but are “useful analytical tools” so long as they “bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301, 107 S. Ct. at 1139-40; see also State v. Sorenson, 441 N.W.2d 455, 458 (Minn. 1989); Krech, 403 N.W.2d at 636-37.
In this case, the first factor suggests that the area immediately outside the door of Luhm’s condominium unit is curtilage because it is in close proximity to Luhm’s home. But the second factor suggests that the area is not curtilage because there was no enclosure surrounding the area. The third factor also suggests that the area is not curtilage because Luhm did not have exclusive use of the area but, rather, shared it with other persons, including other residents of the third floor and their visitors. In fact, the record indicates that Luhm was especially limited in his ability to use that area in the same manner as he would use the inside of his condominium unit because the written rules and regulations of the condominium building state that “[h]allways are to be kept free and clear at all times of any personal property including, but not limited to: floor mats, rugs, footwear, carts, wheelchairs, walkers, etc.” The fourth factor further suggests that the area is not curtilage because the area was fully visible to all persons who might walk by his door. Thus, the Dunn factors lead to the conclusion that the area immediately outside the door of Luhm’s condominium unit is not curtilage. This conclusion is consistent with the overarching purpose of the curtilage doctrine, which is to determine “whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301, 107 S. Ct. at 1140.
Luhm contends that, even if the area immediately outside the door of a rented apartment in a multi-unit apartment building is not curtilage, this case is different because the hallway outside his condominium unit was “owned by all residents of the condominium of the building” and was “controlled and regulated exclusively by its owners.” This contention fails for at least three reasons. First, Luhm cites no caselaw suggesting that the law of curtilage depends on whether a resident of a home owns the home or rents it from another person. The four factors identified by the Supreme Court give no regard to whether the resident of a home is an owner or a renter. See Dunn, 480 U.S. 301, 107 S. Ct. at 1139. Second, even if ownership were relevant, Luhm was not the owner of the condominium unit in which he lived. Third, even if ownership were relevant, and even if Luhm were permitted to assert his mother’s ownership interest, the written rules and regulations of the condominium building indicate that each owner of a condominium unit has only a limited right to control the area immediately outside his or her condominium unit.
Luhm also contends that, even if the area immediately outside the door of a condominium unit in an unsecured, multi-unit residential building is not curtilage, this case is different because he lived in a secured building. The degree of security of a multi-unit residential building has limited relevance to the question whether a resident has a legitimate expectation of privacy in the area immediately outside the door of his or her residence. It is relevant to the extent that the curtilage analysis depends on whether the area is capable of being observed by persons who pass by the door. See id. But even in a secured building, numerous other persons may pass by a particular unit. In Eisler, the court rejected a similar argument on the ground that “[t]he common hallways of [the] apartment building were available for the use of residents and their guests, the landlord and his agents, and others having legitimate reasons to be on the premises.” 567 F.2d at 816. Likewise, in Concepcion, the court reasoned that the common areas of a secured, multi-unit apartment building “are used by postal carriers, custodians, and peddlers” such that “[t]he area outside one’s door lacks anything like the privacy of the area inside.” 942 F.2d at 1172. In short, the fact that the front door of Luhm’s multi-unit building was locked does not significantly alter the curtilage analysis.
Thus, we conclude that the area immediately outside the door of Luhm’s condominium unit was not within the curtilage of his home. Accordingly, Luhm cannot establish that the dog sniff that was conducted there was a search for purposes of the Fourth Amendment. See State v. Williams, 2015 ND 103, 862 N.W.2d 831, 833-34 (N.D. 2015) (holding that area immediately outside door of condominium unit was not within curtilage under Fourth Amendment); Nguyen, 841 N.W.2d at 682 (holding that area immediately outside door of apartment was not within curtilage under Fourth Amendment); but see People v. Burns, ___ N.E.3d __, __, 2016 IL 118973, ¶¶7-10 (2016) (holding that landing outside door of appellant’s apartment and one other apartment was within curtilage under Fourth Amendment); State v. Rendon, 477 S.W.3d 805, 810 (Tex. Crim. App. 2015) (same); cf. Whitaker, __ F.3d at __, 2016 U.S. App. LEXIS 6655, 2016 WL 1426484, at **2-4 (relying on Katz and Kyllo for conclusion that warrantless dog sniff outside door of apartment was search for purposes of Fourth Amendment). Therefore, Luhm is not entitled to the protections of the Fourth Amendment with respect to the dog sniff conducted immediately outside the door of his condominium unit.
