MD: Dog sniff outside apt door didn’t violate curtilage or a reasonable expectation of privacy

A dog sniff outside an apartment door from a common hallway otherwise closed to those not living there did not violate curtilage or an expectation of privacy. Lindsey v. State, 2015 Md. App. LEXIS 171 (Dec. 16, 2015):

We also reject appellant’s final contention that the existence of a lock and buzzer system in the apartment building indicates that steps were taken to protect the area from observation by passerbys. In contrast, appellant’s own testimony revealed that the area was observable by a passerby and thus, the lock and buzzer system functioned as a security mechanism, rather than one ensuring privacy. See Dunn, 480 U.S. at 303 (holding that “[n]othing in the record suggests that the various interior fences on respondent’s property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas.”). Thus, we agree with the State’s conclusion that “[c]onsidering the [K-9] dog-sniff [alert] only fortifies the conclusion that the affidavit afforded the warrant-issuing judge a substantial basis to find probable cause[]” because appellant failed to demonstrate that the K-9 dog alert occurred within the curtilage of his home.8

Moreover, because the area outside of appellant’s door was within a common area, he did not have a reasonable expectation of privacy in the same. See Grymes, supra. Courts tasked with resolving the issue before us have historically held that tenants of a multi-unit dwelling do not have a reasonable expectation of privacy in the common areas therein. See Chase, Cops, Canines, and Curtilage: What Jardines Teaches and What It Leaves Unanswered, supra, at 1309 (explaining that the great weight of authority of federal appellate courts from nine circuits maintain that a tenant of a multi-unit dwelling does not have an expectation of privacy in common areas of that dwelling).

Thus, appellant’s reliance on McDonald v. United States, 335 U.S. 451, 69 S. Ct. 191, 93 L. Ed. 153 (1948) and its progeny in support of his argument, is misplaced. Although the Court held that the officers violated McDonald’s Fourth Amendment rights by climbing through the landlord’s room and then peering into a transom above McDonald’s apartment door within a common hallway, the Court’s holding was predicated on the existence of an unlawful breaking and entering. Id. at 453-56. Justice Jackson elaborated on this threshold finding in his concurring opinion, in which he stated, “[b]ut it seems to me that each tenant of a building, while he has no right to exclude from the common hallways those who enter lawfully, does have a personal and constitutionally protected interest in the integrity and security of the entire building against unlawful breaking and entry.” Id. at 458 (emphasis added).

Unlike McDonald, the evidence in the instant case does not demonstrate that the detectives gained entry through an unlawful breaking and entering, because it is unknown whether the main door to the apartment building was locked at the time of their entry. This severely undermines appellant’s remaining contentions relative to his reasonable expectation of privacy in the area outside of his apartment door. Accordingly, we decline to address appellant’s further arguments.