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Lawyers for Fargo man hope US Supreme Court will hear appeal of his drug arrest

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FARGO, North Dakota — Lawyers for a Fargo man will try to persuade the U.S. Supreme Court to hear their appeal of his drug conviction, saying officers don't have the right to enter a locked apartment building without a warrant and that the hallways should be considered private property.

The Supreme Court has scheduled a conference later this month to discuss the case of Matthew Nguyen, who was busted for dealing marijuana when two plain-clothes officers with a drug-sniffing dog walked entered his building without a warrant or invitation when another resident walked through the locked outside door.

The case has been taken up by Jeffrey Fisher, a Stanford Law School professor and co-director of its Supreme Court Litigation Clinic. He said in court documents that the Supreme Court should hear arguments because justices haven't addressed whether residents in apartments can expect privacy in hallways of secured buildings.

"This case, in which the North Dakota Supreme Court squarely held that the police do not conduct a search when they trespass in the common areas of a locked apartment, presents an ideal opportunity to take up this important issue," wrote Fischer, who has argued nearly 30 U.S. Supreme Court cases.

The investigation began after a tenant called police in November 2012 to complain about an odor of marijuana on the second floor. The officers were unable to pinpoint the source of the smell, so the building was added to a list of properties to be investigated further. The officers came back a month later with the dog, who alerted them to Nguyen's unit.

A search warrant was obtained and executed three days later, at which time officers seized about a half-pound of marijuana, digital scales and other drug paraphernalia, and $2,433 in cash. Nguyen was charged with possession of marijuana with intent to deliver and possession of drug paraphernalia.

PHOTO: A conference is being held in front of the U.S. Supreme Court later this month to decide whether the court should take up the case of a Fargo man who was arrested in this south side apartment after police brought a drug-sniffing dog into the locked complex without a warrant. Matthew Nguyen says police violated his right to privacy. (AP Photo/Dave Kolpack)
A conference is being held in front of the U.S. Supreme Court later this month to decide whether the court should take up the case of a Fargo man who was arrested in this south side apartment after police brought a drug-sniffing dog into the locked complex without a warrant. Matthew Nguyen says police violated his right to privacy. (AP Photo/Dave Kolpack)

Fischer wrote that the case is a clean one for the high court because the facts are documented and undisputed, such as the door being locked and the officers entering without permission from the owner of the building or any other tenants.

"Moreover, at the suppression hearing the officers admitted that they could not themselves smell marijuana in the hallway when conducting the dog sniff," Fisher asserted.

In response, Cass County prosecutor Gary Euren wrote that the case doesn't warrant Supreme Court review because the only ruling that would support Nguyen's argument was a U.S. 6th Circuit Court of Appeals opinion from almost 40 years ago.

"Since then, no other federal court of appeals or state high court has interpreted the Fourth Amendment that way," Euren wrote.

The Supreme Court conference is scheduled for June 18.

The proceedings are being followed closely by Fargo attorney Scott Brand, who unsuccessfully defended a man arrested for selling marijuana after police a drug sniffing dog into an owned condominium without a warrant. The North Dakota Supreme Court upheld Andrew Williams' conviction in a ruling issued last month.

"When the government can search for and detect things in our homes without a warrant, we have truly lost our right to privacy," Brand told The Associated Press. "Other courts have ruled in direct opposition to the North Dakota Supreme Court, making this case ripe for United States Supreme Court review ... which I hope happens sooner than later."

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