The ruling is surprising in wake of a March 2013 U.S. Supreme Court decision that said police must first get a warrant before using a drug-sniffing dog.
The North Dakota Supreme Court ruled on Thursday that law enforcement does not need to obtain a search warrant before using a drug-sniffing dog in an apartment building, since doing so does not violate a person’s Fourth Amendment rights.
The high court’s ruling reverses that of Cass County District Judge Wickham Corwin, who ruled earlier this year that police cannot bring drug-sniffing dogs to look for evidence without first getting a warrant, reasoning that doing so would be a violation of a person’s Fourth Amendment rights.
The defendant in the case, 19-year-old Matthew Nguyen, said the evidence police gathered should be inadmissible in the court because officers from the Fargo Police Department used police dogs to search for drugs in his apartment building without first obtaining a warrant.
In an email to MintPress, Nguyen’s lawyer Mark A. Friese said that “A court decision which authorizes the police to commit trespass to obtain evidence without prior judicial approval is troubling.”
According to court documents, the Fargo police officers entered Nguyen’s apartment building wearing plain clothes and without a warrant. To gain access to the building, the court documents say the officers asked a woman leaving the building to hold the door open for them, which according to local news reports is a tactic that has been used in several pending drug-related cases in order to obtain search warrants.
Reports say that the officer who entered the building via the woman leaving did not know if the woman was a tenant or if she had authority to allow him into the building, and didn’t tell her he was going to have a dog sniff the building. The officer also never contacted the apartment building’s owner beforehand, did not obtain a search warrant of any kind or have any kind of permission to bring the dog into the building.
The apartment building was reportedly one of several that were being visited by the drug-sniffing dogs, but what’s worrisome for some is that the list of properties in Fargo that were searched in this manner was compiled by Fargo police officers who claim they had obtained information about “possible drug use or odors” at those residences.
Once inside the building, the two officers and the drug-sniffing dog, Earl, conducted a search of the building. According to the appellant brief, Earl is trained to detect marijuana, cocaine, crack cocaine, ecstasy, methamphetamine, psilocybin mushrooms and heroin. Whenever he smells drugs, he lies down or sits, depending on where the odor is coming from.
Earl reportedly alerted the officers he smelled something outside of Nguyen’s door by laying down three or four inches from the door, but never touched the door. After Earl’s alert, the officers obtained a search warrant for Nguyen’s apartment and found one-half pound of marijuana, paraphernalia including a snort tube, two digital scales, a grinder, two glass bongs, two glass pipes, and $2,433 in cash.
As a result, Nguyen was charged with possession of marijuana with intent to deliver and drug paraphernalia, but Nguyen argued that based on how the evidence was discovered — without a warrant — his constitutional Fourth Amendment rights had been violated and called for the suppression of the evidence.
The State responded by saying use of a drug-sniffing dog in a common hallway of a secured apartment building is not illegal under either the federal or state constitution, which was an argument the State Supreme Court agreed with.
State vs. Federal Supreme Court
The State Supreme Court’s ruling is arguably surprising, especially since the lower court rulings cited a March 2013 decision from the U.S. Supreme Court that ruled police must first get a warrant before they can use a drug-sniffing dog to search for drugs, explosives or other hidden items, since doing so would be a violation of the Fourth Amendment and a person’s privacy.
“The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home,” Justice Antonin Scalia said for the majority. “And the officers here had all four of their feet and all four of their companion’s, planted firmly on that curtilage – the front porch is the classic example of an area intimately associated with the life of the home.
“We think a typical person would find it ‘a cause for great alarm’ to find a stranger snooping about his front porch with or without a dog,” Scalia said. “The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base path, to use a baseball analogy – so long as they ‘stick to the path that is typically used to approach a front door, such as a paved walkway.’ From that vantage point they can presumably peer into the house with binoculars with impunity. That is not the law, as even the state concedes.”
In a concurring opinion, Justice Elena Kagan wrote, “A drug detection dog is a specialized device for discovering objects not in plain view (or plain smell). That device here was aimed at a home – the most private and inviolate (or so we expect) of all the places and things the Fourth Amendment protects. Was this activity a trespass? Yes, as the court holds today. Was it also an invasion of privacy? Yes, that as well.”
But in its ruling, the North Dakota Supreme Court said that there is no legitimate expectation of privacy in the common hallway of secured apartment building since a tenant cannot bar entry to an apartment building to all visitors, delivery persons, or other members of the public, nor can a tenant bar a visitor from the common hallway.
While the court acknowledged that the law enforcement officers were “technical trespassers in the common hallways,” they said that doesn’t affect their ruling because “Nguyen had no reasonable expectation that the common hallways of the apartment building would be free from any intrusion,” meaning the use of the drug dog in the hallway is not considered a search.
“No legitimate expectation of privacy is violated by governmental conduct that can reveal only information about contraband and nothing about arguably ‘private’ facts,” the court said.
The ‘contraband’ exception to the Constitution
And in another shocking twist, the North Dakota high court ruled that there is no legitimate expectation of privacy from governmental officials and said that conduct by government officials that reveals whether a person was in possession of contraband and nothing else is not a violation of a person’s privacy.
Citing a 1983 case in which a drug-dog was used to inspect luggage at an airport, the court said that “[T]he manner in which information is obtained through . . . [drug-sniffing dogs] is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. . . . the information obtained is limited,” since “Drug-sniffing dogs, unlike thermal-imaging devices, are not ‘capable of detecting lawful activity’ such as the ‘intimate details’ occurring in the home.”
In other words, the court said that the likelihood that the use of a drug-sniffing dog in the common hallway of a secure apartment building will actually compromise any legitimate interest in privacy is too remote to characterize the use of the drug-sniffing dog as a search subject to the Fourth Amendment.
Although Friese said that the evidence against his client should be thrown out because Earl alerted the police about the possible presence of a drug in the portion of the hallway right in front of Nguyen’s door, which he said was an extension of his home, the court ruled that there is no legitimate expectation of privacy in common hallways and shared spaces of an apartment building.
Friese told MintPress that what is even more troubling is that this decision recognizes occupants of a single family home are protected from warrantless dog searches around their homes, while occupants of multi-family homes are not.
“I remain optimistic that other courts reviewing this evolving issue will extend equal protections to citizens who by choice or by economic necessity choose to live in closer proximity to others,” Friese said.