FARGO, North Dakota — The North Dakota Supreme Court has ruled it's OK for police to bring a drug-sniffing dog into a secured apartment without a warrant, but now the court is being asked to decide whether that opinion applies to owned condominiums.
A West Fargo man arrested for possession of marijuana with intent to deliver says police violated his right to privacy by bringing a dog past a fence and into the hallway he shared with one other resident. He says the evidence should be thrown out.
Defense attorney Scott Brand said Monday he was filing the appeal for Andrew Williams, who was arrested in May after Disco the dog detected the smell of pot coming from Williams' residence. Williams agreed to plead guilty in advance of the appeal.
East Central District Judge Norman Anderson more than two months ago denied Brand's motion to exclude the evidence, after Brand complained that it was an unreasonable search and seizure. Prosecutors cited the case of Matthew Nguyen, whose arrest for dealing pot after Fargo police brought a dog into his apartment complex was upheld by the state Supreme Court.
"All the factors here indicate that this was a proper entry by the officers and a proper utilization of the decision in Nguyen, which is prevailing in the state of North Dakota, which states in a security apartment situation, at least, taking a drug dog in under any kind of circumstances is perfectly fine," Cass County prosecutor Gary Euren said at the Aug. 25 hearing for Williams.
Brand argued during the hearing that the hallway in Williams' condo should be considered curtilage, or part of the home, and that gave Williams an expectation of privacy.
"This is, by definition, curtilage," Brand said. "He has personal property out in the yard. Personal property inside the hallway. He maintains that hallway. He pays for that hallway. He cleans that hallway. This is undeniably curtilage."
Euren said the officers thought the dwelling was an apartment building and didn't find out it was an owned condominium until afterward.
"I agree this is a close call because of the ownership interest, but it still has to be determined that the area inside the fence, and then the area in that hallway, is a curtilage," Euren said.
In the Nguyen case, officers got inside a secured apartment building when one of the residents opened the door to enter or leave. The dog hit on one of the units on the second floor and police then obtained a search warrant. Nguyen's lawyers have said they will likely petition the U.S. Supreme Court to hear the case.
Anderson, the judge in the Williams case, said during the hearing that there are more similarities than differences between apartments and condominiums.
"There may be an ownership interest, but that's not obvious from looking at it," Anderson said.
Tracy Peters, a Cass County prosecutor, had not seen the formal appeal Monday but said she expected the arguments to mirror those at the August suppression hearing.
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