Emily Welker, Published October 07 2013
Cass prosecutors ask ND high court to overturn drug dog sniff caseBISMARCK – Cass County prosecutors are asking the North Dakota Supreme Court to overturn a district court judge’s ruling that tosses out some drug dog sniff cases based on a U.S. Supreme Court opinion stating they were searches, which require a warrant.
Cass County District Court Judge Wickham Corwin ruled in May that the evidence gathered in State v. Nguyen was inadmissible because police used a Fargo police dog to smell for drugs allegedly coming from under 19-year-old Matthew Nguyen’s apartment door.
Police went in without a warrant and in plain clothes, according to court documents. They relied on a woman leaving Nguyen’s building to hold the security door open for them.
It’s a tactic that has been used in several pending cases in order to get search warrants, prosecutors have previously told the Forum. Some of cases haven’t been resolved and may still be affected by the state Supreme Court’s ruling.
Fargo police have said they intend to tailor their drug dog sniffs to the court’s rulings.
Cass County prosecutor Gary Euren argued in his brief to the state high court that the U.S. Supreme Court ruling on which Corwin’s decision is based involved a specific case and doesn’t apply to Nguyen’s case.
In the U.S. Supreme Court case, Euren wrote, a police dog searched a person’s front porch, not a common hallway of an apartment building. Because an apartment is rented, rather than owned, the appeal states, the renter shares the hallway with others and doesn’t have the same ownership expectation.
An apartment, Euren wrote, “has fewer of the ‘bundle of ownership rights’ associated with the traditional house ... it is difficult, if not impossible, for a tenant to utilize in any meaningful way a hallway, in particular, as an extension of an apartment building.”
Defense attorney Mark Friese asked the high court to uphold Corwin’s decision. He said Nguyen’s case was more similar to the Supreme Court case than Euren described.
Friese, in his brief, wrote that Nguyen’s building was secured from the public by a buzzer and a security door.
He also wrote that people store their packages and their personal items in the hallways of this building, and tenants decorate their hallway doors, making it more of a private area for residents.
You might come up to a private door of a home, knock, and then leave if you weren’t invited in, Friese’s appeal states. But no one looking at the outside of someone’s home would think they were free to search it.
“Complying with the terms of that traditional invitation does not require fine-grained legal knowledge; it is generally managed without incident by the Nation’s Girl Scouts, and trick-or-treaters,” Friese wrote.
He asked the court not to create an “apartment exception” to the Supreme Court case, and to uphold Corwin’s ruling.
Readers can reach Forum reporter
Emily Welker at (701) 241-5541