Warrantless Dog Sniff From Common Hallway Of Apartment Door Violated Both Fourth Amendment And State Constitution

State v. Edstrom, Minn.Ct.App., 9/5/2017.  Police got a tip that Mr. Edstrom was selling methamphetamine our of an apartment in Brooklyn Park.  An investigator did some due diligence on the tip - he apparently did not establish whether the informant had provided reliable information in the past - and then invited another officer to bring over his narcotics sniffing dog to the common hallway of the third floor of the apartment building that the informant had specified.  The dog came over and commenced sniffing the apartment doors. 

This apartment building is secured but management graciously provides a key to the local constabulary so that they can get into the building.  The dog got a hit on one and only one of the third floor apartment doors. The officers then sought and obtained a search warrant for this apartment and found inside a bunch of methamphetamine, multiple firearms, etc. The state charged Mr. Edstrom, who was inside the apartment at the time of the execution of the search warrant with a host of drug and firearms charges.  He moved to suppress all that evidence, saying two things:  first, that the search warrant was the product of an unconstitutional dog sniff of the outside of the apartment door; and second, that the door to the apartment was "curtilage" for which he had a reasonable expectation of privacy.  The trial court denied the motion, concluding that the officer had a legitimate reason to be in the common hallway on the third floor and that the area immediately outside an apartment door in a common hallway is not "curtilage".

Mr. Edstrom did not complain about the use of management's key to get into the apartment building.  Rather, his complaint was about the dog sniffing outside his apartment door.  He pointed out that SCOTUS has said that a home's front porch fit the definition of a "curtilage" and that this is no different. Florida v. Jardines, 569 U.S. 1 (2013). The court of appeals reminded Mr. Edstrom that it had concluded in State v. Luhm, 880 N.W.2d 606 (Minn.Ct.App., 2016), that the area immediately outside a resident's door in a secured, multi-unit condominium was not "curtilage."  That being the case, the court rejected Mr. Edstrom's property rights argument and turned to his expectation of privacy argument.

Jardines did not address the privacy argument, but Justice Kagan did in her concurrence, concluding that the warrantless use of a narcotics dog did violate privacy rights.  The court keyed off this concurrence to conclude that the warrantless "intrusion" as it were by the dog sniff violated Mr. Edstrom's legitimate expectation of privacy.  The court also relied upon a Seventh Circuit case that came to the same conclusion, United States v. Whitaker, 820 F.3d 849 (7th Cir. 2016).  The court also determined that the state's comparable Fourth Amendment constitutional provision was also violated.