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Attorneys say drug dog ruling shows flaws in law

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FARGO, N.D. — Defense attorneys in Fargo who have argued that unwarranted searches with drug-sniffing dogs are unconstitutional and unfair to lower-income people say this week's ruling from the 8th U.S. Circuit Court of Appeals backs their premise.

The court said in an opinion released Monday that it was wrong for police in Iowa to bring a drug dog within inches of a resident's apartment window without first obtaining a warrant.

To Fargo lawyers who have seen appeals on warrantless sniffs rejected by the North Dakota Supreme Court, it's a victory for protection against unreasonable searches and seizures. As the law stands now, drug dogs are allowed inside apartments and condos without warrants, but not in private homes.

"The ruling shows that contrary to conclusions of the North Dakota Supreme Court, Fourth Amendment protections equally extend to those who live in multi-family dwellings," Fargo attorney Mark Friese said.

He argued a case in front of the state Supreme Court involving a man who was busted for dealing marijuana after two plainclothes officers with entered his building with a drug-sniffing dog without a warrant or invitation when another resident walked through the locked outside door.


Another Fargo attorney, Scott Brand, defended a client who was arrested when police brought a drug dog into a common hallway that the client shared with another resident in a privately owned condominium. Brand said the hallway in the condo should be considered curtilage, or part of the home, and that gave his client an expectation of privacy.

In the Iowa case, federal judges said the space outside of a man's window was an uncommon area because there was no walkway to the window, and there was a bush and grill in front of the window that prevented it from being used as a common area.

Asked about the ruling, Brand cited a U.S. Supreme Court opinion in 2013 overturning a dog sniff on the porch of a private home and said that should be applied equally to residents of all dwellings.

"Curtilage is curtilage and the Fourth Amendment should not bend based on the searched person's socio-economic status," Brand said.

Cass County State's Attorney Birch Burdick said Wednesday he hasn't had time to review the 8th Circuit's ruling and could not comment.

Fargo attorney Charlie Sheeley, however, called it "outrageous to think that a dog sniffing an outside window area from 6 to 8 inches away is an unconstitutional trespass, yet a dog going inside a locked, secure building and sniffing under a door seam is OK.

"It is these types of issues that make the Fourth Amendment so fascinating, and makes being a criminal defense attorney the best job in the world," he said.

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