AL: Dog sniff at apt door unreasonable under Jardines

“We consider whether the use of a drug-sniffing dog to sniff the door seams of the apartment was, under the reasoning of Jardines, an illegal search in violation of Earl’s Fourth Amendment right to be free from unreasonable searches. We hold that it was, and that the remaining facts in the affidavit did not show probable cause to issue a search warrant for the apartment. We reverse and remand.” Earl v. State, 2020 Ala. Crim. App. LEXIS 44 (May 29, 2020):

We agree with the reasoning of the Eighth Circuit in Burston and Hopkins. An officer who does not have a license to enter the curtilage of an apartment may not circumvent the Fourth Amendment by using a drug-sniffing dog to go into an area where he himself cannot lawfully go. Cpl. McKean testified at the suppression hearing that, although he did not take Oscar directly to the door of apartment 206, Oscar was on a 15-foot lead and Cpl. McKean allowed him to go to the apartment door. Photographs introduced at the suppression hearing showed that the door to apartment 206 was at the end of a walkway that led only to that apartment. Two steps at the end of the walkway led to the door of apartment 206, which was inset into the doorframe. No other apartment shared the door to apartment 206. Although Cpl. McKean did not approach the door to apartment 206 with Oscar, he allowed Oscar, on a 15-foot lead, to go into an area–up to the door seams of the apartment–that he himself could not, with the intent to conduct a search, lawfully go. Although any of the law-enforcement officers could have approached the door of the apartment with the purpose of knocking on the door and speaking with Earl, Officer Partridge testified that they did not go to the apartment to knock and talk, but to walk Oscar around to see if he would alert. As the Court stated in Jardines:

“[T]he question is … whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.”

Jardines, 569 U.S. at 10. When an officer’s behavior “objectively reveals a purpose to conduct a search,” the constitutionality of that search cannot rest on where in relation to the curtilage the officer plants his feet, or on how long a leash he constrains his drug-sniffing dog. Because Cpl. McKean allowed Oscar to sniff in an area where he did not have a license to enter, Oscar’s alert on the door of apartment 206 could not provide probable cause to support a search warrant of that apartment.