[Copyrighted Material Omitted]
Gary E. Euren, Assistant State's Attorney, Fargo, ND, for plaintiff and appellant.
Mark Allan Friese, Fargo, ND, for defendant and appellee.
[¶ 1] The State appeals from the trial court's order granting Matthew Nguyen's motion to suppress evidence found as a result of the search warrant in his criminal prosecution for possession of marijuana with intent to deliver and drug paraphernalia. We hold the law enforcement officer's use of a drug-sniffing dog in a secure apartment hallway did not violate Nguyen's Fourth Amendment rights against unreasonable search and seizure. We reverse and remand.
[¶ 2] The facts of this case do not appear to be in dispute. On November 8, 2012, law enforcement officers were dispatched to 2599 Villa Drive South, Fargo, North Dakota, after a tenant reported smelling marijuana on the second floor of the apartment building. The officers were unable to pinpoint the source of the odor so the building was added to a list of properties to be investigated further. On December 9, 2012, Officer Shane Aberle, of the narcotics division, and Officer George Vinson, of the canine unit, conducted further investigation. The officers were not in uniform and they brought Earl, a drug-sniffing dog.
[¶ 3] Access to the apartment building located at 2599 Villa Drive South is restricted. Both main entrances are locked at all times. The tenants are given keys, guests may gain access if a tenant electronically opens the door, and the fire department has been given access to a lockbox that contains a key. The tenants of the apartment building share secured, common hallways. In this shared space, personal property, such as shoes, bikes, and door craftwork, is present. Officer
Aberle gained access by catching the door before it closed when an unidentified female was either entering or leaving. Officer Aberle and the unidentified female did not communicate. Officer Aberle signaled Officer Vinson and Earl, who were still in the vehicle, to join him. Officer Vinson planned to take Earl to the second floor hallway where the odor had earlier been reported. People were present in the second floor hallway; therefore, Officer Vinson took Earl to the third floor hallway and conducted a sweep that detected nothing. Officer Vinson then took Earl to the second floor hallway. Earl was quickly drawn to the door of unit 214 and alerted.
[¶ 4] The officers used this information to obtain a search warrant, which was executed on December 12, 2012. The officers seized approximately one-half pound of marijuana, paraphernalia including a snort tube, two digital scales, a grinder, two glass bongs, two glass pipes, and $2,433 in cash, which were all attributed to Nguyen. Nguyen made incriminating statements when questioned.
[¶ 5] On January 28, 2013, Nguyen was charged with possession of marijuana with intent to deliver and drug paraphernalia. Nguyen moved to suppress the evidence arguing the warrantless sweep of the apartment building that formed the basis for the search warrant constituted an illegal search. Nguyen alternatively argued suppression of the evidence was appropriate because the successive searches were constitutionally unreasonable. On April ...