Warrantless K-9 Sniffing Violates Apartment-Dweller Rights

 

On June 11, 2013, the Texas First District Court of Appeals at Houston found that a search warrant had been issued on evidence obtained through an illegal search. The Court of Appeals held for the defendant, reversing the conviction and ordering a new trial.

Officers with the Department of Public Safety received information that the defendant was growing marijuana in his second floor apartment. They conducted surveillance on the apartment and observed a male individual coming and going "well before and after...business hours." Through his "training and experience," an officer believed this to be consistent with drug activity. He called for a canine unit. The dog was led up an outside stairway that led to the defendant's apartment. On the stairway, the dog gave a "positive alert," indicating that there were narcotics in the apartment.

Using the evidence of the drug-detecting dog's alert, officers obtained a search warrant for the apartment and seized marijuana from it. https://askcompetentlawyer.comThe defendant was arrested and charged with a drug-related offense.

The defendant argued that the drug dog's sniff was an illegal search, violating his rights under the Fourth Amendment, and thus could not be used as a basis for a search warrant. A search warrant must not be issued without probable cause. The U.S. Supreme Court has said that a dog-sniff of a residence constitutes a search. The Fourth Amendment protects citizens against unreasonable searches and seizures, including those performed without a warrant.

In this case, no warrant was issued to authorize the dog-sniff that was performed on the stairway to the apartment. The stairway is considered part of the "curtilage" of the defendant's home, meaning it has the same Fourth Amendment protection as the home itself. The Court of Appeals found that the use of a drug-detection dog on the stairway was an illegal search under the Fourth Amendment.