GA: REP in apartment hallway outside door

Applying Dunn to defendant’s apartment hallway curtilage, defendant had a reasonable expectation of privacy at his apartment door. There was a locked gate to enter the area that the police somehow bypassed to get in for a dog sniff. State v. Arroyo, 2022 Ga. App. LEXIS 1 (Jan. 4, 2022):

Construing the record in favor of the trial court’s judgment, as we are required to do, we must conclude that the trial court did not err when it suppressed the evidence at issue. As to the first Dunn factor, proximity, the evidence supports a conclusion that the open-air sniff took place at or immediately in front of the apartment door and that this area was within the protected curtilage. See Earl v. State, 309 So.3d 641, 649 (Ala. Crim. App. 2020) (use of a dog “to sniff the door seams of [an] apartment” was an unreasonable and illegal search). As to the second Dunn factor, enclosure, some evidence showed that the apartment complex had an exterior gate that sometimes excluded the general public from the entire property, including the corridor in front of the apartment itself. See United States v. Whitaker, 820 F.3d 849, 853 (II) (A) (7th Cir. 2016) (dog sniff performed at the door of an apartment was an unreasonable search; a tenant had a “reasonable expectation against persons in the hallway snooping into his apartment using sensitive devices not available to the general public”). The same evidence could also be construed as an attempt to limit “the nature of the uses to which the area is put” to visits by tenants and their authorized guests. See Dunn, 480 U.S. at 301; United States v. Thomas, 757 F.2d 1359, 1367 (A) (1) (2d Cir. 1985) (use of a trained dog outside an apartment door “impermissibly intruded on [an occupant’s] legitimate expectation [of privacy]”).

“[I]n the absence of evidence of record demanding a finding contrary to the judge’s determination, the appellate court will not reverse the ruling sustaining a motion to suppress.” (Footnote and punctuation omitted; emphasis in original.) State v. Osterloh, 342 Ga. 668, 673 (804 SE2d 696) (2017). Here, the trial court was authorized to weigh the evidence before it as to proximity, exclusion, and use, and then to conclude that Arroyo had some reasonable expectation of privacy in the area immediately outside of his apartment door as within the curtilage of that apartment. We therefore affirm the trial court’s suppression of the evidence later recovered from the apartment as the product of an unreasonable search of the protected curtilage by this K-9 unit. See Espinoza, 265 Ga. at 173-174 (2) (absence of a fence enclosing a renter’s yard was not “conclusive” as to whether the area was within the curtilage; “lack of exclusive control” does not “eliminate [an] expectation of privacy”). Compare United States v. Miravalles, 280 F.3d 1328, 1332-1333 (11th Cir. 2002) (no reasonable expectation of privacy in the common areas of an apartment building with a malfunctioning and unlocked front door when “tenants had little control over those areas, which are available for the use of other tenants, friends, and visitors,” including delivery and postal workers).