AZ: Dog sniff in hotel hallway and knock-and-talk thereafter not unreasonable

About midnight, officers did a dog sniff in the hallway of defendant’s hotel, and the dog alerted on defendant’s door. There was no reasonable expectation of privacy in the hotel hallway, and hotel management permitted the dog to come in. The knock-and-talk on defendant’s door at that late hour was not unreasonable because defendant was almost certainly awake, and the officers knew it. When the door was opened, the strong smell of fresh marijuana came out, and that justified getting defendant and his companion out of the room. The state statute on nighttime searches wasn’t violated by this encounter. State v. Foncette, 2015 Ariz. App. LEXIS 143 (August 11, 2015):

P15 Here, however, the officers did not impermissibly cross into a constitutionally protected area to investigate with the dog. Although hotel guests are entitled to constitutional protection against unreasonable searches and seizures that infringe on their expectation of privacy within the room, see Davolt, 207 Ariz. at 202, ¶¶ 23-24, 84 P.3d at 467, the hallway outside Foncette’s hotel room was not a private area. Instead it was a public access area within the hotel, open (even overnight) to hotel staff and management as well as other hotel guests. See, e.g., State v. Kosman, 181 Ariz. 487, 490, 892 P.2d 207, 210 (App. 1995) (“Defendant had no reasonable expectation of privacy in the area outside his door [in an apartment complex] because the area is a public place where anyone, including the police, had a right to be.”). Although close in proximity to a private area, the public access hallway outside the door was not the type of area “to which the activity of home life extends” so as to qualify as curtilage of the hotel room. Oliver v. United States, 466 U.S. 170, 182 n.12, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); see also United States v. Dunn, 480 U.S. 294, 300-01, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987) (stating that the extent of a home’s curtilage is determined by assessing “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by”).

P16 Moreover, hotel personnel in this case permitted the officers and the drug dog to enter the hallway, even though it was nighttime. This authorization from hotel management—who had the right to control access to the hallway—provided any required license for the officers to enter the hallway. Compare Jardines, 133 S. Ct. at 1416 (“But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that.”). Under Jardines, law enforcement officers may not use a dog to sniff for drugs without license to do so when that investigation is conducted from within a constitutionally protected area. 133 S. Ct. at 1415-18. Here, however, the officers were legally present in the hallway from which the dog sniffed for drugs, and Foncette accordingly is not entitled to relief on this basis.

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P20 Here, the officers’ conduct comported with the Fourth Amendment. As noted above, the officers were lawfully present in the hallway with the authorization of hotel management. See supra ¶ 15. From there, they could reasonably seek a consent-based encounter by knocking on the hotel room door. See King, 131 S. Ct. at 1858; see also Jardines, 133 S. Ct. at 1416 (“[A] police officer not armed with a warrant may approach a home and knock, precisely because that is ‘no more than any private citizen might do.'”) (citation omitted). Although the officers knocked on Foncette’s door sometime after midnight, the late-night knock was not unreasonable given the traffic stop a short time earlier, and Foncette in fact answered the door less than one minute after the officers first knocked.

P21 Once Foncette opened the door in response to the officers’ knock, the officers immediately smelled fresh marijuana. At that point, it was not unreasonable to ask Foncette and his companion to leave the room to preserve the status quo while waiting for a warrant, nor was it unreasonable to make a limited entry to remove the companion—without opening containers or otherwise searching for evidence—when the companion refused to leave the room.