Dog Sniff Outside Motel Room Is Not a Search

     NORFOLK, Va. (CN) – Police acting on an anonymous tip of drug activity at a Newport News motel did not need a warrant to walk a drug-sniffing dog past a suspect’s room, an appellate court ruled.
     The May 26 ruling by the Virginia Court of Appeals upheld the convictions of Andre Eugene Sanders, who entered conditional guilty pleas to four counts of drug possession and two counts of assault and battery of a law enforcement officer stemming from the 2012 incident.
     Sanders had argued the warrantless use of a trained police dog to sniff for illegal drugs outside the door of his motel room on two separate occasions was an unreasonable search that violated his rights under the Fourth Amendment of the United States Constitution.
     As recounted in the opinion written by Judge Marla Graff Decker, Newport News police officers received an anonymous tip in June 2012, and again in September 2012, that a man — later identified as Sanders — staying in a particular motel room has drugs in his possession.
     As part of their investigation on each occasion, officers took a drug detection dog to the motel and directed it to the walkway directly outside the room of the tipster.
     Each time, the dog’s positive alert was used by the officers as the basis for obtaining a search warrant, and in each case, the subsequent investigation led to Sanders being charged with drug-related offenses.
     Prior to his trial, Sanders filed a motion to suppress the evidence against him, contending that the searches of his motel room were unconstitutional because the probable cause for each depended, in part, on the drug-sniffing dog being located directly outside his room.
     The circuit court denied the motion to suppress, ruling that the use of the dog did not violate Sanders’ reasonable expectation of privacy and, therefore, did not constitute a search.
     Sanders pleaded guilty to six offenses, and was sentenced to 28 years in prison, with 22 years of the sentence suspended.
     When Sanders appealed, he again argued the use of the dog in the investigation was unreasonable, resting his argument on the U.S. Supreme Court’s ruling in Florida v. Jardines.
     In Jardines, the high court considered whether the use of a drug detection dog on the front porch of a private residence was a Fourth Amendment search of that residence, requiring either a warrant or probable cause and exigent circumstances.
     In conducting its analysis, the court highlighted the protections afforded to both the home and “the area ‘immediately surrounding and associated with the home,'” referred to as the “curtilage.”
     It emphasized: “[W]hen it comes to the Fourth Amendment, the home is first
     among equals. At the Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.'”
     In contrast to areas qualifying as curtilage, the Justices juxtaposed “open fields
     It noted that the Fourth Amendment does not “prevent all investigations conducted on private property.” It also made clear that private property classified as “open fields” may be searched without a warrant or exigent circumstances because such areas are not considered to be protected by the Fourth Amendment.
     Sanders contended that each of the motel rooms, on each of the two days in question, was his home for purposes of the Fourth Amendment.
     Decker and her appellate colleagues concluded otherwise after weighing Sanders’ argument in light of both property rights and reasonable-expectation-of-privacy principles.
     While the motel walkways were in close proximity to the guest rooms, “the areas at issue were not inside any sort of enclosure indicating an intent to maintain individual privacy,” Decker wrote.
     “In addition,” she continued, ” … nothing in the record establishes that the registered guest obtained either a property interest in any of the areas outside
     the rented room or a right to exclude others from those areas.
     “In fact, a reasonable inference from the record reflects the contrary,” Decker said. “The walkway immediately outside each of the appellant’s rooms was necessarily a common area used by the renters, their guests, motel staff, and anyone else on the premises to gain access to the various rooms. Accordingly,
     any sights, sounds or smells emanating from the rooms might be sensed by others using the walkways.”
     “Finally,” Decker wrote, “nothing had been done by the guests to protect the areas from people passing by the motel room doors. The photos of the walkways do not depict any personal items such as plants, lawn furniture, or welcome mats, which might indicate that the areas were deserving of protection through classification as curtilage. … As a result, the presence of the drug detection dog on the walkways did not run afoul of Jardines.”
     Therefore the “dog sniffs conducted on the common external walkways outside the appellant’s motel room doors were not searches under the Fourth Amendment,” Decker concluded. ” … the search warrants obtained in part as a result of those canine alerts were valid, and the fruits of those searches were admissible in evidence. Accordingly, we affirm the appellant’s convictions.”
     Sanders’ attorney, Charles Haden told Courthouse News that they plan to appeal the decision to the Virginia Supreme Court. If convicted, Sanders could spend six years in prison.
     “I am disappointed with the result but I understand the rationale that the court of appeals used to distinguish my case from the Florida v. Jardines U.S. Supreme Court case,” Haden said.

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