One thing should now be clear to Texas law enforcement, as well as to law enforcement officials across the country: the area immediately surrounding the front door of a home is part of the residence, curtilage, requiring a search warrant before a police drug dog can go into that area to do a sniff test there.
Courts Tell Police to Keep their Dogs’ Noses out of Curtilage
The one thing made abundantly clear by the Texas Court of Appeals’ December 16, 2015 decision in State v. Rendon is that when the police bring a “trained drug-detection dog directly up to the front door of an apartment/home for the purpose of conducting a canine-narcotics sniff,” that is a search within the meaning of the Fourth Amendment requiring a search warrant before such a sniff can be conducted.
In 2013, the U.S. Supreme Court in Florida v. Jardines held that the police use of a drug-sniffing dog to investigate a home and its immediate surroundings is a “search” under the Fourth Amendment, requiring a search warrant. Established Supreme Court jurisprudence refers to the immediate surroundings of a home as the “curtilage” and, thus, is part of the home.
Victoria Police Department Put Dog’s Nose into Curtilage
In 2012, Michael Eric Rendon was being investigated by the Victoria Police Department for possible involvement in drug activity. As part of this investigation, a detective and his drug dog, Baco, went to an apartment complex where Rendon resided. The apartment complex had four units: two upstairs and two downstairs. Rendon lived on one of the upstairs apartment which was accessible only by a single staircase leading up to a landing in front of the two upstairs apartments. The stairs, as well as the landing, had a metal fence border with supporting posts being only inches apart. This permitted a view of the stairway and the door of each upstairs apartment from the ground below.
The detective first took Baco to Rendon’s vehicle which was parked in the apartment complex’s parking lot. The dog alerted to the smell of narcotics. The detective then took Baco up the stairs to the door of Rendon’s apartment where he again alerted to the smell of narcotics.
Search Warrant Based on Illegal Search
Armed with these two positive canine alerts to narcotics, the detective later that day applied for a search warrant. His search warrant affidavit cited Baco alerts at Rendon’s vehicle and the “bottom left portion” of his front door as a factual basis for probable cause to issue the warrant.
A judge signed the search warrant, and the ensuing search of Rendon’s apartment discovered “two pounds of marijuana and $4,904 in cash.”
Under two separate cause numbers, Rendon was indicted for possession of marijuana and money laundering.
Defense Counsel Steps up to Bat and File Motion to Suppress
Rendon’s defense counsel filed a pretrial motion to suppress. The trial court conducted a hearing on the motion at which defense counsel argued that the warrant to search Rendon’s apartment was invalid because information used to obtain the warrant, Baco’s alert at the defendant’s front door, “had been obtained through an unlawful search in violation of the Fourth Amendment.”
Defense counsel’s suppression motion was good defense work. Dog sniff searches pose a unique problem for the courts who must weigh the government’s legitimate need to detect and punish wrongdoers against an individual’s constitutional guarantee of an expectation of privacy. At the time defense counsel filed his motion, the law on dog sniff searches was very much unsettled.
History of the Dog Sniff
In 2005, the U.S. Supreme Court in an Illinois case had ruled that the use of a drug-detection dog around a lawfully stopped vehicle does not violate Fourth Amendment provisions. Two decades earlier the Second Circuit Court of Appeals had ruled that the use of a marijuana-sniffing dog outside an apartment constituted a search. Eight years later the Ninth Circuit refined the Second Circuit’s proposition by holding that a dog sniff of a sealed commercial container was permissible because the suspect had no expectation of privacy in the container.
Against this uncertain legal backdrop, the trial court granted defense counsel’s motion to suppress in a well-reasoned statement of facts and conclusions of law.
“[Rendon’s apartment] was located on the 2nd floor of the apartment building and was the only apartment to the left of the top of the stairs (another apartment was on the right of the stairs),” the judge wrote.
Area in Front of Front Door of Apartment is Curtilage
The trial judge concluded the stairs leading to both apartments were a “public or common area” and that the landing to the left led directly to Rendon’s apartment. This led the judge to conclude that Rendon’s front door area was “curtilage” of his apartment.
Finally, the trial judge reasoned that Baco’s alert at Rendon’s front door was an “intrusion” into the curtilage that, without a warrant, violated the Fourth Amendment. Absent the unlawful Baco alert, there was not enough probable cause information upon which a search warrant of Rendon’s apartment could be based.
Court of Appeals Agrees
The State appealed to the Thirteenth Court of Appeals, arguing that the area in front of Rendon’s apartment was part of the common area of the stairs leading to the upstairs landing.
Relying upon the U.S. Supreme Court’s 2013 decision in Florida v. Jardines which held the area immediately surrounding and associated with a resident is a curtilage protected by the Fourth Amendment, the court of appeals concluded that “the area immediately in front of Rendon’s apartment is no different from the front porch of a free standing home,” and therefore Baco’s intrusion there violated the Fourth Amendment.
The State asked the Court of Criminal Appeals to review the court of appeals’ decision. The court granted the State’s petition for discretionary review to determine one question: whether the area outside of Rendon’s front door constituted the curtilage of his apartment.
Court of Criminal Appeals Limits Decision to Apartment Threshold
Adopting the Jardines rationale, the Court of Criminal Appeals held that “the officers’ conduct in bringing a trained drug-detection dog up to the threshold or area immediately outside of [Rendon’s] front door for the purpose of conducting a canine-narcotics sniff was an ‘unlicensed physical intrusion onto the curtilage of his home … constituted a search in violation of the Fourth Amendment.”
The court added that because the dog sniff occurred at the threshold of Rendon’s apartment, there was no need to review “the broader holding of the court of appeals that the portion of the landing to the left of the top of the stairs leading to [Rendon’s] door was the curtilage of his apartment and also subject to Jardines’ physical-intrusion.”
Thus, the Court of Criminal Appeals decision is more narrow than the one issued by the Thirteenth Court of Appeals and the trial court; namely, the CCA was only willing in the Rendon case to give Fourth Amendment protection to the limited threshold in front of Rendon’s apartment while the court of appeals and the trial court extended Fourth Amendment protection to the entire landing area in front of the apartment, finding it was the curtilage of the apartment.
Drug Dog Cannot Sniff Door to Home without Warrant
While the Court of Criminal Appeals left open just how much area in front of the door of an apartment-home constitutes curtilage, it is absolutely clear that Texas law enforcement can no longer let their narcotics-detection canines sniff around a person’s door without a validly-obtained search warrant.