On March 28, 2018, the Fourth Circuit Court of Appeals decided the United States v. Mitchell[i], in which the court discussed whether officers conducted a search under the Fourth Amendment when they sniffed the exterior of an apartment and smelled the odor of marijuana emanating from an apartment. The relevant facts of Mitchell, taken directly from the case, are as follows:

The afternoon of June 27, 2016, police officers Zachary Lyons and Glenn Marshall were on routine patrol at Pinedale Manor apartments located in Newport News, Virginia. Pinedale Manor is a two-story garden style apartment complex. The apartment buildings overlook a common parking lot, with sidewalks running the length of each apartment building and directly in front of the apartment doors. The complex is not gated, and the parking lot and sidewalks are openly accessible to members of the public. Management at Pinedale Manor encouraged Newport News police to patrol the complex so as to combat the high incidence of drug-related crimes. Officers typically patrolled on foot and bicycle throughout Pinedale Manor.

On June 27, 2016 at about 2:49 p.m., Newport News Officers Lyons and Marshall were on bike patrol at the apartment complex. As Officer Marshall passed in front of apartment A6, he smelled the strong odor of burning marijuana. Officer Lyons, who was riding his bicycle on the grassy area between the sidewalk and parking lot, also smelled marijuana coming from A6. Both officers were trained and experienced in smelling raw and burnt marijuana.

The officers then spent several minutes investigating the odor’s source by separately walking the length of the first-floor sidewalk and second floor landing of the apartment building. Each officer noted that the odor was strongest near A6, a street level apartment with the front door abutting the sidewalk. Officer Lyons sniffed the windowsill of A6’s exterior screened window. Officer Marshall also smelled the exterior doorframe of A6’s front door. Confident in the odor’s source, Officer Lyons then knocked on A6’s door.

When Mitchell opened the door, the officers immediately smelled “a stronger odor of marijuana come from [inside] the residence.” Officer Lyons informed Mitchell and the other occupant, Sean Mitchell, that the officers noticed a “problem” with the apartment window so as to peaceably draw the men outside. Once outside, the officers informed the men that they had smelled marijuana coming from the apartment. For officer safety and to guard against potential destruction of evidence, the men were kept outside, placed in handcuffs, and patted down. The officers asked for consent to search the apartment for narcotics, and when both men declined, Officer Lyons left to obtain a search warrant.

Officer Marshall, joined by another Newport News officer, stayed with the two men. The officers advised that although the men were not under arrest, they were detained and not free to leave. During the one-and-a-half hours it took Officer Lyons to obtain the search warrant, the two men and the officers stayed outside the apartment.

Officer Lyons affirmed in the affidavit for the search warrant as follows:

On June 27, 2016, at 1449 hours in the City of Newport News, Officer Lyons and Marshall were on bike patrol in the area of 749 Adams Drive. Officer Marshall rode past apartment A6 when he detected the odor of Marijuana coming from the apartment. When Officer Lyons rode past the window of the apartment[,] he also detected the odor of fresh marijuana. Both officers made contact with the residence [sic] and had them step out of the residence. Once both occupants stepped out Officer Lyons advised them of the situation and told them they were both detained for a narcotics investigation at 1450 hours. When the door to apartment A6 opened the strong odor of marijuana emitted from the apartment.

Based on this application, the local magistrate issued the warrant, finding that probable cause existed to believe that evidence of marijuana possession would be found in apartment A6, in violation of Virginia Code § 18.2-250.1. The execution of the search warrant revealed three partially burned marijuana cigarettes and a loaded semiautomatic firearm in Mitchell’s bedroom.[ii]

Mitchell was subsequently charged under federal law as a convicted felon in possession of a firearm.  He filed a motion to suppress and argued that the officer’s sniffs of the exterior window and door of his apartment were illegal searches under the Fourth Amendment.  The district court agreed and granted the motion to suppress.  The government appealed the grant of the motion to suppress to the Fourth Circuit Court of Appeals.

The issue before the court was whether the officers conducted a search within the meaning of the Fourth Amendment when they sniffed the exterior of the apartment?

The Fourth Circuit first described the relevant legal principles that govern this issue as follows:

A search or seizure has “undoubtedly occurred” when ” ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects.” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012))… The area “immediately surrounding and associated with the home,” the curtilage, is “part of [the] home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984).

However, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” California v. Ciraolo, 476 U.S. 207, 213 (1986) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). This is because the “touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” Id. at 211 (quoting Katz, 389 U.S. at 360). Accordingly, it is unreasonable to expect law enforcement officers “to shield their eyes when passing by a home on public thoroughfares.” Id. at 213. Further, an apartment dweller maintains no expectation of privacy in the publicly accessible common areas of an apartment complex. United States v. Jackson, 728 F.3d 367, 373-74 (4th Cir. 2013). Law enforcement officers’ use of their unenhanced senses in publicly accessible spaces, therefore, does not amount to a “search” under the Fourth Amendment.[iii] [emphasis added]

The court of appeals also examined four Supreme Court cases that are relevant to the issue in Mitchell’s case.  First, in Taylor v. United States,[iv] prohibition officers smelled the odor of whiskey emanating from Taylor’s garage.  Officer’s entered Taylor’s garage and seized 122 cases of whiskey.  The court held that the officers could rely on the distinct odor of whiskey as indicative of a possible crime; however, the evidence was suppressed because the officers entered the garage and seized the whiskey without a warrant.

The second case examined was Johnson v. United States,[v] in which officers sniffed outside Johnson’s motel door and smelled the odor of burning opium.  The court stated that the odor of burning opium “might well be evidence of most persuasive character,” but suppressed the evidence because officers entered and searched the motel room without a warrant.

The third case examined was California v. Ciraolo,[vi] in which officers flew an airplane over the defendant’s property to observe a marijuana grow.  The court held that this was not a search under the Fourth Amendment because the observations were made from “public airspace.”

The court then noted that the reasoning in the above cases is applicable to Mitchell’s case.  The Fourth Circuit stated

No principled distinction exists between an officer using his eyes as opposed to his nose to detect incriminating evidence. Accord United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004); United States v. Cephas, 254 F.3d 488, 494-95 (4th Cir. 2001). Stated simply, “a human sniff is not a search, we can all agree.Florida v. Jardines, 569 U.S. 1, 14 n. 2 (2013) (Kagan, J., concurring) (“If officers can smell drugs coming from a house, they can use that information; a human sniff is not a search, we can all agree.”).[vii] [emphasis added]

The fourth Supreme Court case examined by the court of appeals was Florida v. Jardines,[viii] which is the case in which Mitchell relies in his motion to suppress.  In Jardines, officers, with a drug sniffing canine, entered onto the curtilage of Jardines house and used the dogs to sniff the exterior of his house.  The Supreme Court held

[T]he government’s use of trained police dogs to investigate [the exterior of] a home and its immediate surroundings is a search within the meaning of the Fourth Amendment.” Id. at 11-12 (emphasis added). The Court answered in the affirmative because “the officers’ investigation took place in a constitutionally protected area,” and was accomplished by an “unlicensed physical intrusion” through the use of a narcotics canine. Id. at 7-9 (emphasis added).[ix]

Thus, in Jardines, officers and a canine entered the curtilage around the defendant’s house.  This was a “physical intrusion” in to a constitutionally protected area.  As such, it was a search under the Fourth Amendment.

However, in Mitchell’s case, the officers, without a canine (sensory enhancement) sniffed the window and door of Mitchell’s apartment while they were in a common area of the apartment complex, rather than from constitutionally protected curtilage.  The court stated

At base, the district court impermissibly expanded Jardines to prohibit officers in public areas from using their unenhanced senses to investigate criminal wrongdoing. The officers repeatedly testified that their sniffs were no different than what any passerby could have done, whether that sniff was to catch a whiff of an illegal substance or something savory cooking on the stove. Nor was it disputed that the officers caught anew the smell of marijuana after they lawfully knocked on the door and Mitchell voluntarily opened it. Just as law enforcement officers are not compelled to “shield their eyes” from plainly visible criminal activity, Ciaraolo, 476 U.S. at 213, Officers Lyons and Marshall were not required to plug their noses as they passed Mitchell’s apartment. Because the officers’ sniff outside Mitchell’s apartment was not a search, we must reverse.

Thus, because the officer’s sniff of the exterior of Mitchell’s apartment, from an area that is not constitutionally protected, was not a search under the Fourth Amendment, the Fourth Circuit reversed the grant of the motion to suppress.



[i] No. 17-4317 (4th Cir. Decided March 28, 2018 Unpublished)

[ii] Id. at 3-5

[iii] Id. at 7

[iv] 286 U.S. 1 (1932)

[v] 333 U.S. 10 (1948)

[vi] 476 U.S. 207 (1986)

[vii] Mitchell at 9-10

[viii] 569 U.S. 1 (2013)

[ix] Mitchell at 10

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