TX2: Dog sniff at garage door violated no reasonable expectation of privacy

A dog sniff at the garage door is not a search, and it does not violate any reasonable expectation of privacy. Romo v. State, 315 S.W.3d 565 (Tex. App.—Ft. Worth April 8, 2010):

However, before we reach reasonableness, we must first determine whether a search even occurred. Our sister court has held that a dog sniff of a front door is not a search. See Rodriguez, 106 S.W.3d at 228-29 (holding that appellant did not have a reasonable expectation of privacy outside his home where the drug dog sniffed because the front door area was not enclosed, it was used as a main entrance to the house, and it was not protected from observation by passersby); see also Smith v. State, No. 01-02-00503-CR, 2004 Tex. App. LEXIS 1121, 2004 WL 213395, at *3 (Tex. App.–Houston [1st Dist.] Feb. 5, 2004, pet. ref’d) (mem. op., not designated for publication) (holding that appellant’s privacy interests under the U.S. and Texas Constitutions were not invaded when officer walked up appellant’s driveway to allow drug dog to sniff appellant’s garage door), cert. denied, 544 U.S. 961, 125 S. Ct. 1726, 161 L. Ed. 2d 602 (2005). The Rodriguez court reasoned that because a dog sniff discloses only the presence or absence of narcotics, in which there is no reasonable expectation of privacy,fn6 and does not expose noncontraband items, activity, or information that would otherwise remain hidden from public view, it does not intrude on a legitimate expectation of privacy and is thus not a “search” for Fourth Amendment purposes. 106 S.W.3d at 228-29; see also Porter v. State, 93 S.W.3d 342, 346-47 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d) (holding same). We agree with this reasoning and conclude that Rocky’s sniffs of the garage door and the backyard fence were not searches under the Fourth Amendment or the Texas constitution because he sniffed areas that were not protected from observation by passersby and because Romo had no reasonable expectation of privacy in the odor of marihuana coming from his backyard.

6 The Rodriguez court states, “There is no legitimate expectation or interest in ‘privately’ possessing an illegal narcotic.” 106 S.W.3d at 229; see Wilson v. State, 98 S.W.3d 265, 272-73 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d) (holding that a dog sniff of the area outside the door of a hotel room is not a search under the Fourth Amendment or the Texas constitution because the dog’s sniff does not explore the details of the hotel room and the sniff reveals nothing about the room other than the presence of cocaine, in which there is no legitimate privacy interest); see also United States v. Jacobsen, 466 U.S. 109, 122, 104 S. Ct. 1652, 1661, 80 L. Ed. 2d 85 (1984) (“The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.”).