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.


Don’t Stick Your Nose into My Curtilage


In the Jardines case, the drug dog sniffed around the suspect’s front porch, an area the court determined was within the curtilage of the home. With that determination, the court held that it was unreasonable for the police to allow the drug dog to sniff around the suspect’s porch without a warrant.


USA v. Burston


Democrus Pernell Burston lived in Cedar Rapids, Iowa in March 2012. He lived in a complex of eight apartments. The complex had four exterior doors located on the building’s west side, including Apartment 4 where Burston resided. His unit had its own private entrance and window. A walkway led to his unit from the main walkway around the building but the walkway did not lead to or pass the window in Burston’s unit. His window was a good six feet from the walkway that led into his unit.


A bush was located outside the window; in fact, it covered part of the window. There was an open space between the bush and the walkway, a space in which Burston had placed a cooking grill.


Dog Sniff Search


John O’Brien and Al Fear are officers with the Cedar Rapids Police Department. O’Brien received information about potential drug use in the apartment complex where Burston resided. O’Brien conveyed this information to Officer Fear, a canine unit officer. Fear took his drug sniffing dog, Marco, to the apartment complex and allowed him off leash to sniff along the exterior of the west side of the building.


Marco alerted to the presence of drugs six to ten inches from the window in Burston’s apartment. He sat there just past the bush. Fear remained six feet from Burston’s apartment. He was satisfied the area around the bush was public because it was not enclosed. Later that day the officer submitted an application for a search warrant based on Burston’s criminal history and Marco’s alert.


Then Search Warrant


A search warrant was issued. Six days later Officers O’Brien and Fear executed the warrant. The ensuing search discovered four rifles, ammunition, and residue of marijuana. Burston was arrested and subsequently indicted in federal district court for knowingly possessing a firearm and ammunition as a felon and for being an unlawful user of marijuana.


Motion to Suppress


Relying upon Jardines, Burston’s defense counsel, Ray Scheetz,  filed a motion to suppress the firearms, ammunition, and marijuana evidence, claiming Marco’s sniff was a warrantless search. While the magistrate court agreed that the dog sniff was an unlawful warrantless search, it denied the motion because the Government had established a “good faith exception” to the exclusionary rule because Jardines had not been decided at the time of the search.


Burston’s subsequently entered a conditional guilty plea, preserving his right to appeal the denial on his suppression motion.


The first issue the Eight Circuit Court of Appeals had to address was what exactly constitutes a “curtilage.”


Appellate Court Discusses Curtilage


In a November 23 decision, the appeal court said there are four relevant factors that must be considered in making this determination: “proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from  observation by people passing by.”


The Eight Circuit found there was ample evidence to support a curtilage finding in Burston’s case:


“First, the area sniffed was in close proximity to Burston’s apartment—six to ten inches. That area is ‘immediately surrounding’ his residence … we find the first Dunn factor to ‘strongly support a finding that the lawn in front of the apartment window is curtilage.’ Second, the record contains photographic evidence that Burston made personal use of the area by setting up a cooking grill between the door and his window. Third, there was a bush planted in the area in front of the window, which partially covered the window. One function of the bush was likely to prevent close inspection of Burston’s window by passerby. Consideration of the first, third, and fourth Dunn factors outweighs the one Dunn factor that arguably militates against finding the area to be part of the home’s curtilage, i.e., the area was surrounded by an enclosure. The bush, one could argue, served as a barrier to the area sniffed. Hence, we hold the area sniffed constituted the curtilage of Burston’s apartment.”


Use of Drug Dog is Physical Invasion of Curtilage


The appeals court was not done. It called the use of the drug dog a “physical invasion of Burston’s curtilage.” The three-judge panel pointed out that, absent an intent to search, the police lacked an “implicit license to stand six to ten inches from the window in front of Burston’s apartment.”


The Burston decision should send a loud message to the police: keep your police dog away from the home and all its areas of privacy without a search warrant. Marco could not have given the police probable cause to search the home or its curtilage because he is the police, or at least a surveillance tool of the police. His insertion into the curtilage was a police invasion and required a search warrant.  The police must have a search warrant to insert Marco’s nose into the curtilage of the home to conduct such a search for evidence.


No Good Faith Exception


The appellate court dismissed the “good faith” argument saying that cases preceding Jardines supported the proposition that a police officer cannot invade a home owner’s curtilage for purposes of gathering evidence without a warrant.


Burston now gets a new trial. In all probability, this case will be dismissed because the four firearms, ammunition, and marijuana evidence must be suppressed.  This was a federal drug case that, due to Burston’s prior criminal history, carried a very lengthy prison sentence.  We applaud the great work done by smart criminal defense lawyers who stand up for their clients, no matter their past wrongs, and force the courts and the police to follow the law of the land.