Search and Seizure: Warrantless dog sniff didn’t violate Fourth Amendment

Although the police used a dog to sniff for contraband at the “seam” of the  defendant’s apartment door, mere inches from the interior, in the hallway of a large, multi-unit building, they did not violate the Fourth Amendment.

Background

Law enforcement officers suspected that Eric Tyrell Johnson was involved in a drug trafficking scheme. They investigated by conducting a warrantless dog sniff for contraband at the front door of Johnson’s apartment, in the hallway of a large, multi-unit building.

Based in part on a positive alert, the police then obtained a warrant to search the apartment and uncovered drugs, guns and other incriminating evidence. After the district court denied Johnson’s motion to suppress that evidence, Johnson was convicted of drug- and gun-related offenses.

Dog sniff

Citing Kyllo v. United States, 533 U.S. 27 (2001), and Justice Kagan’s concurrence in Florida v. Jardines, 569 U.S. 1, 12 (2013), Johnson argued that the dog sniff constituted a search under the “reasonable expectation of privacy” standard because the police used a specialized device (the trained dog) to discover details of his home (the presence of drugs) that would otherwise have been unavailable absent a physical intrusion into the apartment.

When it comes to Fourth Amendment expectations of privacy, however, dog sniffs are different. As the Supreme Court has made clear, an individual’s “interest in possessing contraband cannot be deemed ‘legitimate.’” And a dog sniff, crucially, can “only reveal[]” just that – “the possession of contraband.”

Unlike a visual inspection of the inside of a home, or the use of Kyllo’s thermal imaging device from the outside, an alert by a trained narcotics-detection dog “does not expose noncontraband items that otherwise would remain hidden from public view[.]” Because a dog sniff can reveal only the presence of contraband, and there is no reasonable expectation of privacy in contraband, a dog sniff is not a search. Most other courts have reached the same conclusion.

This court recognizes that Justice Kagan, in a separate concurring opinion, has embraced the defendant’s position that a dog sniff at the door of a home may violate a reasonable expectation of privacy. But the Supreme Court has declined the opportunity to follow suit.

Curtilage

            Johnson’s alternative argument draws on the property-based approach of Jardines, in which the Supreme Court held that a dog sniff conducted on the front porch of a house was a Fourth Amendment search. That was so because the police on the front porch had physically intruded into the “curtilage” of the home which is protected “as part of the home itself” under the Fourth Amendment.

Here, Johnson’s apartment door “mark[s] the boundary” between his residence, protected as a home under the Fourth Amendment, and the “apartment complex’s common property.” Johnson “had no property based right outside [his] apartment door.” Instead, as the district court explained, that area was part of a common hallway, used regularly by other building residents and by building cleaning staff.

And it was not just other residents and staff; despite locks at the front door, entry to the interior hallways was “not restricted . . . in any way” because building management “routinely” granted consent to enter on request. Johnson could of course exclude any of those people from the interior of his apartment, but they all had a right to be in the common hallway outside his door. That takes the apartment hallway, outside the scope of the Fourth Amendment’s protection of the home.

Johnson emphasizes that the police dog alerted at the “seam” of his apartment door, mere inches from the interior. According to Johnson, proximity of purported curtilage to the home weighs so heavily in his favor that it is dispositive. And it is true that this degree of proximity has been treated as highly relevant to the curtilage inquiry, including by the Ninth Circuit in the recent decision relied on by Johnson.

But in those cases the defendant owned or otherwise had the right to exclude others from the area immediately surrounding his dwelling. Nothing supports the proposition that close proximity to a home can convert common property into curtilage. This holding aligns with decisions from other courts recognizing the importance of a property-based “right to exclude” to the curtilage analysis. It also puts this court squarely within a general consensus that common areas shared by all tenants of an apartment building usually will not qualify as Fourth Amendment curtilage.

Affirmed.

United States v. Johnson, Case No. 23-4255, Aug. 5, 2025. 4th Cir. (Harris), from DMD at Baltimore (Chasanow). Sylvia Olga Tsakos for Appellant. Adeyemi Adenrele for Appellee. VLW 025-2-308. 16 pp.