United States v. Randy Makell

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 8, 2018
• Docket: 17-4106
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4106

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RANDY DAVID MAKELL, a/k/a Burger,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:15-cr-00594-PX-1)

Submitted: April 30, 2018 Decided: May 8, 2018

Before GREGORY, Chief Judge, and AGEE and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Joanna Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Stephen M. Schenning, Acting United States Attorney, Matthew J. Maddox, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Randy David Makell pleaded guilty to possession with intent to distribute

phencyclidine, in violation of 21 U.S.C. § 841(a)(1) (2012), and possession of a firearm

in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)

(2012), but reserved his right to appeal the district court’s denial of his motion to

suppress the evidence seized from his apartment. On appeal, Makell argues that the use

of a drug-detecting dog constituted an illegal warrantless search. Finding no error, we

affirm.

We “review the factual findings underlying a motion to suppress for clear error

and the district court’s legal determinations de novo.” United States v. Davis, 690 F.3d

226, 233 (4th Cir. 2012). “When a suppression motion has been denied, this Court

reviews the evidence in the light most favorable to the government.” Id.

Relying on Florida v. Jardines, 569 U.S. 1 (2013), Makell argues that law

enforcement officers entered the curtilage of his apartment when they approached the

threshold and deployed a drug-detecting dog to conduct a sniff of his apartment door. In

Jardines, the Supreme Court applied the “traditional property-based understanding of the

Fourth Amendment,” to hold that “using a drug-sniffing dog on a homeowner’s porch to

investigate the contents of the home is a ‘search’ within the meaning of the Fourth

Amendment.” Id. at 3, 11. Because “the officers’ investigation took place in a

constitutionally protected area,” that is, the curtilage of the home, and the officers

exceeded the scope of the implicit license permitting them to approach the front door, the

Jardines Court held that the search was unconstitutional. Id. at 7.

2 In determining whether an area is curtilage to the home, this court considers “‘[1]

the proximity of the area claimed to be curtilage to the home, [2] whether the area is

included within an enclosure surrounding the home, [3] the nature of the uses to which

the area is put, and [4] the steps taken by the resident to protect the area from observation

by people passing by.’” United States v. Jackson, 728 F.3d 367, 373 (4th Cir. 2013)

(quoting United States v. Dunn, 480 U.S. 294, 301 (1987)) (alterations in Jackson). The

“centrally relevant consideration” is “whether the area in question is so intimately tied to

the home itself that it should be placed under the home’s ‘umbrella’ of Fourth

Amendment protection.” Id. at 374 (internal quotation marks omitted). Applying these

factors, we find that the common hallway of the apartment building, including the area in

front of Makell’s door, was not within the curtilage of his apartment.

Makell also argues that the dog sniff infringed on his reasonable expectation of

privacy. Relying on Kyllo v. United States, 533 U.S. 27, 40 (2001) (holding that

Government’s use of device not in general-public use, such as thermal imaging, to

explore aspects of home not previously knowable without physical entry surveillance

constitutes search), Makell asserts that the police violated his right to privacy when they

used a trained narcotics dog to ascertain the contents of his apartment.

The Fourth Amendment is not implicated when Government action does not

“compromise any legitimate interest in privacy.” Illinois v. Caballes, 543 U.S. 405, 408

(2005). Because “any interest in possessing contraband cannot be deemed legitimate, . . .

governmental conduct that only reveals the possession of contraband compromises no

legitimate privacy interest.” Id. (internal quotations omitted). “The legitimate

3 expectation that information about perfectly lawful activity will remain private is

categorically distinguishable from [a person’s] hopes or expectations concerning the

nondetection of contraband.” Id. at 410. Because the drug-detecting dog disclosed only

the presence of illegal narcotics, we find that the dog sniff did not violate Makell’s

legitimate expectation of privacy.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the material

before this court and argument will not aid the decisional process.

AFFIRMED