Drug dog sniff of storage unit wasn't a search
Is the threshold of a storage unit within curtilage under the Fourth Amendment? The court decides in this recent case
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UNITED STATES V. MCKENZIE, 2021 WL 4096579 (2nd Cir. 2021)
A confidential informant (CI) provided information about Oniel McKenzie’s drug operations, explaining how he used two women to pick up packages of cocaine and marijuana from UPS mailboxes and take them to McKenzie’s rented storage units. Agents verified some of the CI’s information by surveillance. When a woman delivered several packages to a storage unit and left, an agent called for a drug detector dog team. The dog sniffed the exterior of the storage unit and gave a positive response to the odor of drugs. The agents then obtained a search warrant for the storage unit.
Later that afternoon, before the agents executed the search of the storage unit, surveilling officers saw a man drive a Jeep up to the storage facility, enter the storage unit and visit the office to pay rent. The man drove away in the Jeep with the officers following. When the driver stopped, he got out and began talking with a man on the sidewalk. Officers approached the Jeep’s driver and asked for identification. The driver, later identified as McKenzie, presented a California driver’s license in the name of Darrin Clark – the same name as the renter of the storage unit. After briefly talking with the officers, McKenzie dropped the Jeep’s keys into the open engine block compartment of a nearby truck and walked away. He left the scene in a different vehicle.
After officers searched the storage unit and found approximately 100 pounds of marijuana, the drug detector dog sniffed the exterior of the Jeep and gave a positive response to the odor of drugs. An agent applied for a search warrant for the Jeep. In the affidavit, he noted there were six cardboard boxes plainly visible in the Jeep similar to the ones delivered to the storage unit. A search of the Jeep produced approximately 56 kilograms of marijuana, a handgun, ammunition and $68,780 in cash.
Later the same day, officers obtained a search warrant for the residence where the Jeep was registered and where McKenzie’s alias, Darrin Clark, was listed on the lease. That search revealed approximately 60 kilograms of cocaine packaged in a manner similar to the marijuana recovered from the storage unit. Agents also found what appeared to be a drug ledger, as well as McKenzie’s fingerprints, in the residence.
McKenzie was convicted for knowingly and intentionally possessing illegal drugs with intent to distribute. He challenged the trial court’s denial of his motion to suppress the evidence obtained following the drug detector dog sniff of the exterior of the storage unit. The 2nd Circuit Court of Appeals acknowledged that it stood alone in applying the expectation of privacy analysis to a dog sniff outside an apartment door. However, the court opined, “despite unfavorable reviews,” the prior case law “has never been overruled and remains binding.” Notwithstanding this point of mild controversy, the United States Supreme Court has disfavored detector dog sniffs at residential thresholds on the basis that a sniff performed on the curtilage of the defendant’s freestanding home was a physical intrusion on a protected property interest (Florida v. Jardines, 569 U.S. 1 (2013)).
Nonetheless, the court held that the warrantless dog sniff at the threshold of a storage unit was not a search within the meaning of the Fourth Amendment. The Jardines doctrine could not apply because “when one rents a storage unit, no curtilage comes with it.” McKenzie also argued the officers had no right to enter the storage complex, though he cited no facts or legal authority for his position. Even if McKenzie could show some reasonable expectation of privacy within the storage unit complex, the court held that he “did not have a reasonable expectation of privacy in the air outside” of the unit. Thus, the search warrant was properly issued for the storage unit. The evidence found in the storage unit properly supported the issuance of the search warrants for the Jeep and the residence. McKenzie loses on all counts.