W.D.Mo.: Driveway not curtilage for dog sniff of car

Relying on United States v. Beene, 818 F.3d 157 (5th Cir. 2016) (posted here), defendant’s car parked on the driveway in front of his home was subject to a dog sniff as if it was on the street. Because of the positive alert, a seizure and impoundment of the car was thus reasonable. United States v. Moody, 2017 U.S. Dist. LEXIS 81633 (W.D. Mo. March 20, 2017), adopted, 2017 U.S. Dist. LEXIS 81037 (W.D. Mo., May 26, 2017):

In analyzing the Dunn factors, the Court finds that the only factor weighing in favor of finding the front lawn to be within the curtilage is its proximity to the house. On the other hand, however, the front lawn was open to the street and was not obstructed by a fence or other barrier. Moreover, Moody did not take any steps to protect his privacy with respect to the front lawn whether by fencing or by signage. Finally, no evidence suggests that the front lawn was used for “intimate activities of the home.” An instructive recent case is United States v. Beene, 818 F.3d 157 (5th Cir. 2016).

In Beene, the court determined that a defendant’s driveway was not part of the home’s curtilage, so using a drug-sniffing dog in the vicinity of a vehicle parked in the driveway did not qualify as a search. Id. at 162. The court observed that the driveway was open to the street, nothing obstructed access to it, and the defendant had not taken any steps to protect it. Id. Thus, the driveway was considered an “open field” and not protected under the Fourth Amendment.

Similarly, in this case, the Court concludes that the Altima was not parked within an area that constituted curtilage. As such the drug sniff performed by Diogi was not a search about which Moody can complain. Further, Diogi’s positive alert on the Altima provided Det. Ervin with probable cause to perform a warrantless search of the vehicle – a search that uncovered contraband without any constitutional infirmity.