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Emily Welker, Published May 20 2013

Dog sniff ruling could impact Cass drug cases

FARGO – A Cass County judge’s ruling has raised questions about other area drug cases after he threw out evidence collected at the home of an alleged drug dealer because police used a drug dog to sniff outside his apartment without a warrant.

The ruling by Cass County District Court Judge Wickham Corwin is based on a recent U.S. Supreme Court opinion holding that without a search warrant, police can’t use a drug dog to try to detect the smell of drugs from immediately outside a home – a tactic that was sometimes used to get a search warrant.

Defense attorney Mark Friese said Corwin’s decision was right.

“The judge recognizes that either through economic necessity or choice, people who live together in apartment buildings are entitled to the same expectations around their homes as everyone else,” he said.

Assistant Cass County State’s Attorney Gary Euren said he thought the ruling was overly broad.

“How do you shield a common hallway from the public?” Euren said. “In privacy theory, security buildings are there for security, not privacy.”

In the Supreme Court’s decision, the dog sniffed from the front porch of the defendant’s house.

Corwin cited the Supreme Court decision in his May 14 ruling, writing “that any protection afforded by our state constitution must be interpreted to be equal to or more expansive than the corresponding protection afforded by the federal constitution.”

In the Cass County case, a Fargo police dug, Earl, had alerted police to a suspected smell of drugs outside the apartment of 19-year-old Matthew Nguyen of Fargo. Police were acting on a tip that someone had smelled marijuana in the apartment building, which wasn’t enough probable cause to get a search warrant.

Corwin wrote the hallways of Nguyen’s building should be considered part of his home in part because the building requires a key or an electronic code to get inside and because there were shoes, bikes and pictures and decorations on the walls in the hallways.

Based on Earl’s sniff, officers got a search warrant for Nguyen’s unit, where they allegedly found drugs, money and paraphernalia and collected incriminating statements from Nguyen, Corwin wrote in his ruling.

Nguyen was charged Dec. 12 with possession of marijuana with intent to deliver, a Class B felony, and felony and misdemeanor charges of possessing drug paraphernalia. The case is still pending, with the next hearing set for May 29.

Deputy Chief Pat Claus said that Fargo police have already revised department policy on drug dog sniffs since the Supreme Court ruling in March, requiring investigators to get a search warrant to have a dog sniff outside a door for drugs. He said police and prosecutors are crafting an overall strategy based on the confines laid out by the court.

“There’s a real other test – can the owner of a building give consent [to search]?” Claus said.

Friese, a former police officer, said he doesn’t think that new requirement will hamper drug investigations, since police can get a warrant quickly by calling a judge or contacting them through electronic means.

At the time Nguyen was searched, Friese said, local narcotics agents would use dogs often for warrantless sweeps outside homes in which police suspected there were drugs, often handling as many as 15 cases in an afternoon.

Claus said there were a handful of other cases that could be affected by Corwin’s decision but could not give a specific number.

Euren said two cases that involved dog sniffs will be argued in hearings today.

Prosecutors will decide whether to appeal after seeing how the judges in those cases rules, he said.

Readers can reach Forum reporter Emily Welker at (701) 241-5541