If a police officer enters your secured condominium building without a warrant and a drug-sniffing dog outside your door detects the presence of drugs, is it an illegal search?
No, a divided Minnesota Court of Appeals ruled Tuesday.
Stuart Luhm of Minnetonka had challenged his conviction on drug and weapons offenses because police did not have a warrant to enter his building in the August 2014 raid that was based on a tip from an informant.
The front door of the building is normally locked, but police used a key in a locked box to which police have access, and Brio the drug-sniffing dog confirmed that drugs were probably in the condo unit Luhm shared with a girlfriend.
That was the point when police got a search warrant and found large quantities of marijuana, 93 oxycodone tablets, 7 firearms, and two bullet-resistant vests.
Two members of the Court of Appeals ruled today that there is no expectation of privacy in the common areas of a condominium building. It also said the fact the building owners make access available to police negated the need for a warrant to enter the building.
“Neither the United States Supreme Court nor the Minnesota Supreme Court has considered whether a resident of a multi-unit building has a reasonable expectation of privacy in the common areas of the building so as to challenge an officer’s warrantless entry into the building,” Judge Mathew Johnson wrote <a href="http://www.mncourts.gov/mncourtsgov/media/Appellate/Court%20of%20Appeals/Holiday%20Opinions/OPa151356-053116.pdf” target=”_blank”>in his ruling today.
But the state Supreme Court ruled in 2012 that people in a condo building have a diminished expectation of privacy. That case involved a police officer who saw evidence in a murder investigation in plain view in a building’s common area.
Judge Johnson said that ruling supports prosecutors’ insistence that Luhm had no reasonable expectation of privacy.
Johnson also rejected Luhm’s claim that the building manager didn’t have authority to allow a warrantless entry.
Luhm also contends that the property-management company’s authority to consent to the officers’ warrantless entry is limited by the condominium building’s written rules and regulations.
Luhm points to a provision in that document stating that condominium residents have “exclusive use” of “limited common areas” of the building. But that portion of the rules and regulations does not refer to the entryways or hallways of the building.
Rather, that provision refers to certain other areas, such as the parking garage, balconies, and storage lockers.
As for the dog’s sniff, the judge rejected that argument, too:
We stated above that Luhm did not have exclusive use of the hallway outside the door of his condominium unit.
In fact, the written rules and regulations of the building forbade him from placing private property in that area. In analyzing whether that area is within the curtilage of his home for purposes of the Fourth Amendment, we noted that the area outside the door of his condominium unit was accessible to other residents of the multi-unit building.
Those reasons also indicate that, for purposes of the state constitution, Luhm does not have a strong privacy interest in the common hallway outside the door of his condominium unit.
“A trained drug-detection dog permits officers to obtain information about the inside of a home. A dog sniff of the door seam was a search under the Fourth Amendment, regardless of whether it occurred in the common hallway of the condominium building,” Judge John Smith countered in his dissent. “I would reverse because the officers needed probable cause to conduct the dog sniff, and the dog sniff was essential to probable cause to issue the search warrant.”
Smith suggested the case is similar to one in California in which a man was arrested when police used a thermal imaging system from the street to scan his home for signs that he was growing marijuana.
“… the Supreme Court made no distinction between heat radiating off the home and surveillance inside the walls of the home,” Smith wrote. “Because a trained drug-detection dog is not in general public use and was used by the police to ‘explore details of the home that would previously have been unknowable without physical intrusion,’ I would conclude that the dog sniff in this case was a search requiring a warrant under the Fourth Amendment, even when conducted from the common hallway of appellant’s condominium.”