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Emily Welker, Published June 17 2013

Drug dog sniff cases may not pass smell test

FARGO – Prosecutors worry that some Cass County District Court drug cases could be jeopardized by a recent U.S. Supreme Court decision that ruled drug dog sniffs are searches and require a warrant.

Defense attorney Pat O’Day is the latest Fargo attorney to move for evidence to be dismissed on those grounds, this time in two different cases.

In both cases, a judge signed search warrants after Fargo police dogs sniffed enough evidence in two Fargo apartment buildings. The warranted searches turned up drugs in apartment units.

“It’s a critical piece of what we do in drug prosecutions,” said Cass County prosecutor Tracy Peters, who argued both cases Monday in Cass County District Court. She said she has about a dozen similar cases pending. “It has affected us immensely.”

Peters argued in court that the Supreme Court ruling in the Florida drug dog case shouldn’t be applied to the two Cass County cases.

In the Florida case, law enforcement officials used a drug dog to sniff around the front porch of someone’s home. Supreme Court Justice Antonin Scalia said the porch was a part of that person’s property, and that law enforcement needed a warrant to search it.

Peters said in court Monday that the circumstances in Florida were different than the apartment building searches here because someone’s home doesn’t encompass the halls of the apartment building.

“You rent the apartment, you don’t rent the hallway,” she said.

O’Day argued that the people who live in the apartment building often leave their bicycles, their shoes and other belongings in the hall, and decorate the doors of their apartments in a way that indicates they consider the hallway part of the private space of their homes. “It’s a person that’s protected, not the space.”

Judge Steven McCullough asked O’Day whether that made the hallway a secure area of someone’s home.

“I can keep a bicycle out in the middle of the street if I want. … That doesn’t give me a property right in the middle of the street,” McCullough said.

A Fargo police detective and a sergeant, both of whom are K-9 handlers, testified they were let in to search the two apartment buildings by people other than the defendants.

O’Day said that in neither case did the defendant give consent for a search.

In one case, the building’s manager let in the police. In the other, the person who called police complaining about an odor of marijuana in the building let them in.

McCullough said he would take both cases under advisement and rule at a later time.

A third case has already had evidence gathered through a drug dog sniff of an apartment building dismissed. The Cass County state’s attorney has filed a notice stating the office plans to appeal Judge Wick Corwin’s decision in that case to the North Dakota Supreme Court.

Peters said the state’s attorney’s office is also considering which of its other pending cases may be worth appealing to the state Supreme Court if the lower court’s rulings don‘t go their way.

She said local law enforcement will still use drug dogs; they may just have to get an extra warrant first.

“It’s not going to change what we do,” she said. “It’s just another step.”

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