{"id":9713,"date":"2013-12-10T07:24:45","date_gmt":"2013-11-02T16:27:59","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-11-02T16:27:59","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9713","title":{"rendered":"CA10: GFE supports dog sniff of garage door two years before Jardines<\/em>"},"content":{"rendered":"

There is a presumption of good faith, and the good faith exception can be decided other than probable cause. There was a dog sniff of a garage door two years before Jardines (application of which was not briefed since briefs came before it), and it was valid at the time of the dog sniff, and that supports the warrant. United States v. Ponce<\/a>, 734 F.3d 1225 (10th Cir. 2013):<\/p>\n

<\/p>\n

At the time of the dog sniff, Officer Mackenzie could have “reasonably believed,” Danhauer, 229 F.3d at 1007 (quoting Leon, 468 U.S. at 923), that Ponce’s side garage door was not within the home’s curtilage and thus was not protected by the Fourth Amendment. See United States v. Cousins, 455 F.3d 1116, 1118-24 (10th Cir. 2006).<\/p>\n

Moreover, Officer Mackenzie could have also reasonably believed that Buster’s positive alert at Ponce’s eastern garage door was not a search for purposes of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983) (holding dog sniff of luggage at public airport was not a search for Fourth Amendment purposes); see also Illinois v. Caballes, 543 U.S. 405, 407-10, 125 S. Ct. 834, 160 L. Ed. 2d 842 (2005) (holding dog sniff around exterior of already lawfully stopped vehicle does not violate Fourth Amendment). To support that conclusion, we need only look to the Supreme Court’s recent decision in Jardines, decided two years after the dog sniff at issue here, which involved an arguably more egregious warrantless dog-sniff alert at the front door of a residence. In Jardines, four members of the Court concluded that the K-9’s activity was not a Fourth Amendment search. See 133 S. Ct. at 1421 (Alito, J., dissenting). The dissent of four Justices on this point counsels that we answer in the negative “the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal [based on the fact that the search warrant was predicated in part on a warrantless dog sniff] despite the magistrate’s authorization,” United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993) (emphasis added).<\/p><\/blockquote>\n

Note that the court does not talk about Davis good faith, but it comes to the same result.<\/p>\n","protected":false},"excerpt":{"rendered":"

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