On January 4, 2022, the Court of Appeals of Georgia decided the State v. Arroyo[i], which is instructive regarding the use of a drug-sniffing K9 outside of an apartment door. The relevant facts of Arroyo are as follows:
[T]he record at the pre-trial hearing and at trial shows that on October 10, 2016, a Sandy Springs police officer received a tip from a confidential informant that the informant had seen “several” kilograms of cocaine inside Arroyo’s apartment. The investigator and a K-9 unit arrived at the apartment complex shortly after noon. Although the investigator first testified that the complex did not have an exterior gate, he later testified that there was such a gate, that it was open “during business hours” and shut at night, and that “you ha[d] to have a key fob or a number to get in at the gate — the call box.” The investigator could not recall whether he and his partner actually did anything to assist the gate opening when they entered the complex. The officers bypassed the leasing office to avoid any “tipp[ing] off” of tenants, understanding as they did so that unauthorized visitors could be asked to leave.
The investigator testified that the front door to Arroyo’s apartment, designated as Apartment G, was located on an upper floor, with three other apartments’ doors opening onto the same open-air corridor “inside the building.” When the K-9 officer conducted a leashed dog sniff along the corridor, the dog alerted only in front of Apartment G and lay down there. When the officers knocked on the door, Arroyo answered. A woman and children were also present. The officers detained Arroyo while they obtained a search warrant, which took less than two hours. The team executing the warrant found the cocaine in a suitcase in one of the apartment’s two bedrooms. The suitcase contained clothes in Arroyo’s size, and a second bag nearby contained his passport.
Arroyo was arrested and charged with trafficking cocaine.[ii]
Arroyo filed a motion to suppress and argued that the area outside his apartment door was protected curtilage, and he had a reasonable expectation of privacy in that area. As such, he argued that the K9 sniff violated his rights under the Fourth Amendment. The trial court denied the motion, and the case proceeded to trial. As the State rested its case, the trial court reversed its order and granted the motion to suppress. The trial court then ruled that the area outside of the apartment door where the K9 conducted the open-air sniff was “protected curtilage” and, as such, Arroyo had a reasonable expectation of privacy in that area. The State appealed that ruling to the Court of Appeals of Georgia.
The issue before the court was whether the trial court erred in concluding that the area outside of an apartment doorway was considered constitutionally protected curtilage such that the resident is afforded a reasonable expectation of privacy in that area.
The court first discussed the relevant legal principles and stated
The search of the area outside of the apartment doorway at issue here, conducted without a warrant, is “presumed to be invalid, and the State has the burden of proving otherwise.” Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015). . . Although the boundaries of the curtilage are clearly marked for most homes, the analysis becomes more complicated when[, as here,] the residence is an apartment in a multi-family dwelling in an urban area.” (Citations omitted.) Id. at 173 (1). Espinoza also directs our attention to the United States Supreme Court’s decision in United States v. Dunn, 480 U.S. 294 (107 SCt 1134, 94 LE2d 326) (1987), which lays out four factors to be considered in defining the extent of a curtilage:
“ the proximity of the area claimed to be curtilage to the home,  whether the area is included within an enclosure surrounding the home,  the nature of the uses to which the area is put, and  the steps taken by the resident to protect the area from observation by people passing by.”
Espinoza, 265 Ga. at 173 (2), quoting Dunn, 480 U.S. at 301; see also Florida v. Jardines, 569 U.S. 1, 6-7 (II) (A) (133 SCt 1409, 185 LE2d 495) (2013) (setting out the analytical framework applicable to a police dog open-air sniff on the front porch of a private home). Finally,
the touchstone of Fourth Amendment analysis has been the question whether a person has a constitutionally protected reasonable expectation of privacy. The Amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable.
The court then examined the curtilage factors from Dunn and applied the facts of Arroyo’s case. The first factor is the proximity of the area claimed to be curtilage to the home. The court, citing a case from an Alabama appellate court, stated that
[T]he evidence supports a conclusion that the open-air sniff took place at or immediately in front of the apartment door and that this area was within the protected curtilage. See Earl v. State, 309 So.3d 641, 649 (Ala. Crim. App. 2020) (use of a dog “to sniff the door seams of [an] apartment” was an unreasonable and illegal search).
The second factor is whether the area is included in an enclosure surrounding the home. The court noted that the apartment complex had an exterior gate that was sometimes closed to exclude the general public from the apartment complex. Here, the court of appeals cited a federal case from the Seventh Circuit Court of Appeals that held that a K9 sniff at an apartment door was an unreasonable search because the tenant had a “reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.”[iv] The court of appeals also noted that the apartment complex gate could also be construed as an attempt to limit observation of the area near the defendant’s door to other tenants and their authorized guests, rather than to allow police to use a drug-sniffing K9 in that area. The court cited a federal case from the Second Circuit Court of Appeals that held that
[The] use of a trained dog outside an apartment door “impermissibly intruded on [an occupant’s] legitimate expectation [of privacy]”.[v]
In light of the above analysis of the Dunn factors, the court of appeals affirmed the trial court’s suppression of the evidence as the product of an unreasonable search of Arroyo’s protected curtilage by the K9 unit.
It is very important to note that there is conflicting case law among different states and federal circuits regarding whether the area outside of an apartment door is considered an area in which a tenant possesses a reasonable expectation of privacy.
The court of appeals, in Arroyo’s case, noted that the Eleventh Circuit Court of Appeals, in 2002, held that there is no reasonable expectation of privacy in the common areas of an apartment building with unlocked front doors and where the tenants had “little control over those areas” which were open to other tenants, visitors, and delivery and postal workers.[vi]
Further, on October 13, 2021, the Court of Appeals of Florida decided Robinson v. State[vii], in which they held that the area outside of a motel room door that connected to a common hallway was not considered protected curtilage, and the occupants of the room did not have a reasonable expectation of privacy in that area. As such, they upheld the evidence that was discovered as a result of a K9 sniff of the door area.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] A21A1358 (Ga. App. Decided January 4, 2022)
[ii] Id. at 2-3
[iii] Id. at 5-6 (emphasis added)
[iv] Id. at 7 (citing United States v. Whitaker, 820 F.3d 849, 853 (7th Cir. 2016))
[v] Id. (citing United States v. Thomas, 757 F.2d 1359, 1367 (2nd Cir. 1985))
[vi] Id. at 8 (citing United States v. Miravalles, 280 F.3d 1328, 1332-1333 (11th Cir. 2002))
[vii] 2021 Fla. App. LEXIS 13874 (Decided October 13, 2021)