More Dog Sniffing

State v. Baumann, Minn.Ct.App., 1/13/2008.

Over the Christmas Holiday, an apartment manager complained to the local police that a high number of people were coming in and out of a particular apartment, staying for a short amount of time, then leaving.  Police identified the occupant of this apartment, but the occupant had no prior drug arrests or convictions.  The police brought over the drug sniffing dog and let the dog sniff the common hallway.  The majority opinion says that the dog alerted on Mr. Baumann's apartment, while the concurring opinion says that the dog alerted on several apartments, including Baumann's.  On the basis of the alert, a judge issued a search warrant for the apartment which produce a quantity of marijuana.

Mr. Baumann argued that the police lacked a reasonable, articulable suspicion of criminal activity to have brought in the dog.  The dog's alert should have been, therefore, excluded from consideration by the judge who issued the search warrant.  Neither the apartment manager nor the police officer provided even an estimate of the number of persons coming and going from the apartment.  Neither provided even an estimate of the amount of time that each considered to be a "short time."  The manager's complaints were not based on behaviors that she actually observed. 

Not to worry.  The officer could reasonably draw the suspicion of drug activity, a suspicion that was "something more" than an unarticulated hunch.  The court relies upon State v. Davis, 732 N.W.2d 173, 176 (Minn. 2007).  In that case, the apartment manager had a report from a maintenance worker that there were grow lights in Davis's apartment, and that Davis would not allow maintenance workers into the apartment to investigate a water leak.  Just why Davis is "on all fours with these facts isn't really explained.  The concurrence does acknowledge that whether police were acting on an unarticulated hunch "is very close:"

Hopefully, our decision will not be seen by police as yet a further expansion of dog-sniff searches over constitutionally protected privacy expectations.

Woof.