In the
SUPREME COURT OF
THE UNITED STATES
Spring Term, 2006
No. 05-117
UNITED STATES OF
AMERICA
Appellant,
vs.
MITCHELL
CHRISTOPHER TAYLOR
Appellee.
On a writ of certiorari to the
United States Court of Appeals for the Fourteenth Circuit
BRIEF FOR THE
APPELLANT
Office of the U.S.
Attorney
Eastern District of
Atlantis
7 Discovery Plaza
Suite 39A
Endeavour, AT 24601
Jason O. Braiman
Attorney for the
Appellant
TABLE OF CONTENTS
Questions Presented for Review ..3
Table of Authorities .4
Preliminary Statement ..5
Statement of Facts ..5
Argument . .. .8
I.
The
canine sniff did not violate Mr. Taylors Fourth Amendment rights because it
could not reveal THE EXISTENCE OR NATURE OF anything inside his house beyond
the presence of contraband materials IN which he had no constitutional
expectation of privacy
..8
A.
A canine sniff is not a search under the Fourth
Amendment, because it can only reveal the presence or absence of narcotics and
nothing more
.9
B.
Mr. Taylor had no legitimate expectation of privacy
in his activities concerning possession, production and/or distribution of
marijuana, an illegal narcotic
..
11
C.
The canine sniff did not physically penetrate the
walls of Mr. Taylors house; the odor was in a space legally equivalent to
plain view
.
..
..14
II.
Even
if a canine sniff implicates the Fourth Amendment, it was permissible in this
case BECAUSE IT MET THE STANDARD of reasonable suspicion.
.15
A.
Reasonable suspicion satisfies any Fourth Amendment
concerns for canine sniffs because such sniffs are non-intrusive.
15
B. The information provided by the anonymous tip, and the visible condition of the house viewed through the lens of the fifteen years experience and expertise of DEA Agent Mugan, were sufficient to establish reasonable suspicion that Mr. Taylor was engaged in illegal narcotics activity .. 16
QUESTIONS
PRESENTED
I. Whether a canine sniff conducted outside the defendants residence and revealing nothing other than the presence of contraband to which the defendant has no legitimate expectation of privacy constitutes a search within the meaning of the Fourth Amendment.
II. If the canine sniff implicates the Fourth Amendment, whether reasonable suspicion is sufficient to legally permit a canine sniff of the exterior of a suspects residence, when an informant leads law enforcement agents to said residence, which appears to an experienced veteran narcotics investigator to be a drug house, and the sniff is conducted outside the house without unlawfully entering any private space or revealing anything about the houses contents other than the presence of contraband.
TABLE OF
AUTHORITIES
Cases
Fitzgerald
v. State, 864 A.2d 1006 (Md. 2004)
... 8, 10, 11, 13, 14
Gadson v. State, 650 A.2d 1354
(Md. 1995)
..... 8, 10, 11,
14
Illinois v. Caballes, 543 U.S. 405 (2005)
. 8, 9, 10, 11
Kyllo v. United States, 533 U.S. 27
(2001)
.......10, 11, 12
People v. Dunn, 564 N.E.2d 1054 (N.Y. 1990)
10, 13, 15, 16
Silverman v. United States, 365 U.S. 505 (1961)
...
... 14
State v. Ortiz, 600 N.W.2d 805 (Neb.
1999)
.. 14, 15, 16
State v. Rabb, No. 4D02-5139, 2005 Fla. App. LEXIS 14430
(Sept. 14, 2005)
. 12, 13
United States v. Arvizu, 534 U.S. 266 (2002)
........ .15, 16
United States v. Brock, 417 F.3d 692 (7th Cir.
2005)
. 8, 12
United States v. Greisemer, No. 92-10364, 1993 U.S. App. LEXIS 26514 (9th Cir. May 13, 1993)
.
8, 14
United States v. Hogan, 122 F. Supp. 2d 358 (E.D.N.Y.
2000)
12
United
States v. Jackson, No. IP
03-79-CR-1 H/F, 2004 U.S. Dist. LEXIS 15676 (S.D. Ind. Feb. 2,
2004)
.. 11,
12, 13
United States v. Jacobsen, 466 U.S. 109 (1984)
.. 8, 11, 12
United States v. Lingenfelter, 997 F.2d 632 (9th Cir.
1993)
. 12, 13
United
States v. Oakland Cannabis Buyers'
Coop., 532 U.S. 483 (2001)
..16
United States v. Place, 462 U.S. 696 (1983)
.
..8, 9, 12
United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985)
.. 11, 12, 13, 15
PROCEDURAL HISTORY
The
Government appeals from an order of the United States Court of Appeals for the
Fourteenth Circuit (Roswell, J.), dated July 15, 2005, affirming the decision
of the district court granting defendants motion to suppress evidence seized
pursuant to a search warrant following a canine sniff of his home.
STATEMENT OF FACTS
On February 6, 2005, at approximately 3:00 p.m., Drug Enforcement Agent Thomas Mugan received an anonymous phone call from a pay phone at the local bus depot. (R-6) The informant claimed that one Mitchell Taylor, of Alabaster City, Atlantis, had been engaged in an illegal program of growing marijuana in his home and distributing the marijuana to a secret medical-marijuana organization. (R-6) Although a preliminary inquiry at the DEA office revealed that Mr. Taylor had no criminal record, and agents found no information to corroborate the existence of the alleged medical-marijuana club, the agents gave the possibility due consideration. (R-7) Agent Mugan ascertained Mr. Taylors address as 310 Central Avenue in Alabaster City, and drove directly there with his partner to investigate. (R-6)
Upon arrival at the Central Avenue address at approximately 4:00 p.m., Agent Mugan and his partner observed that the threshold of the house was approximately ten feet from the street, at the end of a stepping-stone path, and that the property bore no fence, gate, or other physical barrier at or around its perimeter. (R-6) Agent Mugan also observed that all the windows and doors of the house were secured, with all blinds and shades pulled completely down so it was impossible to see anything inside the house from the outside. (R-6) To Agent Mugan, a fifteen-year veteran of narcotics investigations, the home appeared to be a drug house. (R-6, 8)
Based upon these observations, along with the anonymous tip, Agent Mugan and his partner Agent Jessica Kohn decided to employ canine narcotics detection. (R-6) They returned to headquarters to retrieve Clifford, their drug-detection canine partner, whom they took back to 310 Central Avenue. (R-6) Clifford, who has been certified through the National Narcotics Detection Dog Association to detect cannabis, cocaine and methamphetamines, has a 91% rate of accuracy measured over the past year. (R-6, 8) At the threshold of the house, Clifford immediately alerted, i.e., indicated that he smelled illegal drugs. (R-6)
The agents returned to their office to file the necessary affidavits and other paperwork, then proceeded to the district court to obtain a search warrant for the house. (R-6, 7) Agent Mugans affidavit in support of the warrant application cited the anonymous call, the physical condition of the house including the closed blinds and shades, and the canine alert. (R-8)
The district court granted the search warrant. (R-7) Agents Mugan and Kohn and their team executed the search warrant at 310 Central Avenue, where they found two (2) kilograms of marijuana, twenty-four (24) marijuana plants, and growing equipment. (R-1, 7) Mr. Taylor admitted that the drug paraphernalia belonged to him, and the agents arrested him at approximately 10:00 p.m. (R-5, 7)
On February 25, 2005, a grand jury indicted Mr. Taylor on one count of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1). (R-1) The defendant filed a motion in the United States District Court for the Eastern District of Atlantis on March 14, 2005, to suppress tangible evidence (the drug paraphernalia) on the ground that the canine sniff constituted an illegal search in violation of the Fourth Amendment. (R-2). The court held a hearing on March 28, 2005 before Keats, J., at which Agent Mugan testified as to the nature and extent of his investigation. (R-3 et seq.) The court (Keats, J.) granted defendants motion on April 13, 2005, holding that the canine sniff was a search requiring probable cause, but articulating no reason for doing so. (R-9, 10) The United States Court of Appeals for the Fourteenth Circuit (Roswell, J.) affirmed the decision of the district court on July 15, 2005, on the grounds that the home enjoys unique and heightened constitutional protection from investigative instruments and techniques which are not in general public use. (R-11 et seq.) The Government appeals from that order.
ARGUMENT
I.
The
canine sniff did not violate Mr. Taylors Fourth Amendment rights because it
could not reveal THE EXISTENCE OR NATURE OF anything inside his house beyond
the presence of contraband materials IN which he had no constitutional
expectation of privacy.
The first issue presented on appeal is whether a canine
sniff of a residence constitutes a search within the meaning of the Fourth
Amendment of the United States Constitution.
This court has consistently held that a canine sniff is not a Fourth
Amendment Search, as it can only reveal the presence or absence of contraband
and cannot reveal or identify any particular thing which the suspect may
legally possess. Illinois v. Caballes, 543 U.S. 405, 409 (2005); United States
v. Place, 462 U.S. 696, 707 (1983).
In so doing, this court as well as lower courts have recognized that a
person has no constitutional expectation of privacy in the concealment of
illegal, contraband materials. Caballes, 543 U.S. at 410; United States v.
Jacobsen, 466 U.S. 109, 123 (1984); United States v. Brock, 417
F.3d 692, 696 (7th Cir. 2005).
Moreover, where a canine sniff does not physically intrude into the
suspects private space, and the dog picks up a scent in the air outside a
house, that scent is essentially in plain view of the public and thus not
private. United States v. Greisemer, No. 92-10364, 1993 U.S. App. LEXIS 26514 (9th
Cir. May 13, 1993), at *3; Fitzgerald
v. State, 864 A.2d 1006, 1017 (Md. 2004); Gadson v. State, 650
A.2d 1354, 1355 (Md.
1995). Here, Cliffords sniff of the
doorway outside Mr. Taylors house did not reveal anything about the houses
contents to which Mr. Taylor had a constitutional expectation of privacy. The
only information Clifford could convey to the agents was whether or not he
smelled illegal drugs. The house itself
is immediately adjacent to a public street, and the property has no fence or
other physical features creating or implying any private space beyond the walls
of the house itself. The sniff,
therefore, cannot be characterized as an unreasonable or unlawful search. It is, rather, an investigative procedure
with narrow, limited applicability and only two possible conclusions (positive
or negative), requiring no factual predicate.
A.
A canine sniff is not a search under the Fourth
Amendment, because it can only reveal the presence or absence of narcotics and
nothing more.
This court has consistently held that a canine sniff is not a Fourth Amendment search. A canine sniff is sui generis, i.e., of an entirely unique nature, in the sense that no other investigative procedure is so limited in both application and result. Place, 462 U.S. at 707. Specifically, the canine sniff does not expose items that otherwise would remain hidden from public view and is therefore much less intrusive than a typical search. Id. at 707. A canine sniff can only reveal the presence or absence of narcotics or other contraband which the dog is specifically trained to detect. Id. at 707. It can provide nothing beyond a simple yes-or-no answer; there is no maybe. As dogs cannot communicate verbally nor by any other linguistic signs, there is no way for law enforcement officers to inquire further, either about what the dog detects or what else besides contraband might be present. The canine sniff also obviates any more intrusive search which would require the exposure and examination of private property. Id. at 707. The canine sniff of Mr. Taylors house did not reveal anything other than the presence of marijuana therein, and thus did not compromise his Fourth Amendment rights.
Place applies no matter where the canine sniff is conducted. The binary yes-or-no nature of the technique was upheld as the critical factor in Illinois v. Caballes, wherein this court held that a canine sniff of a motor vehicle was not a search because it could only reveal the presence of contraband, and thus did not intrude upon any legitimate privacy interests. Caballes, 543 U.S. at 409. The dog could not detect any specific non-contraband items, nor reveal anything other than the presence of an illegal substance which no person has a right to possess. Id. at 410. Other courts have similarly emphasized the unique non-intrusive nature of canine sniffs. See, e.g., Fitzgerald, 864 A.2d at 1010; People v. Dunn, 564 N.E.2d 1054, 1057 (N.Y. 1990). Great weight of authority, therefore, holds that a canine sniff is not a Fourth Amendment search.
The defendant will rely upon Kyllo v. United States to suggest that a canine sniff is an intrusive search, but the court should reject such reliance. In Kyllo, this court disallowed the use of a thermal-imaging scanner, a technological device which is not in general public use, to detect something inside the house which could not have been detected without physical intrusion. Kyllo v. United States, 533 U.S. 27, 40 (2001). However, unlike a drug-sniffing dog, a thermal-imaging scanner does have the capability to detect lawful, non-contraband materials and activities, as well as other private information about the house and the activities of those who live there. Caballes, 543 U.S. at 409, (citing Kyllo, 533 U.S. at 38). While thermal imaging scanners and other electronic surveillance technologies have and will likely continue to develop the capability to reveal lawful, private details of peoples homes, drug-sniffing dogs cannot and will not. Scanners and other surveillance technologies provide many different kinds of data which must then be interpreted by investigators, and can lead to all sorts of conclusions; canine sniffs remain entirely binary. The dog can only indicate, and the investigator can only interpret, either that contraband is present, or that it is not. That is the limitation which makes the canine sniff uniquely non-intrusive among investigative techniques.
Contrary to the defendants argument, most courts have held that a dog sniff is not the equivalent of technology as suggested by Kyllo. The Court of Appeals of Maryland, for example, in Fitzgerald v. State, held that Kyllo has no bearing on dog sniffs. Fitzgerald, 864 A.2d at 1015. Dogs are more analogous to people than to technological devices, as millions of Americans treat them not as property but as family members and friends. Id. at 1015. Another Maryland case, Gadson v. State, saw no doctrinal difference between human and canine investigators, referring to the dog as personnel and his deployment as a tactical decision without constitutional significance. Gadson v. State, 650 A.2d at 1355. If we can consider a dog a person, we cannot consider him technology.
That a dogs sense of smell generally exceeds that of human beings, and some courts consider that an enhancement of human sensory perception, does not make a canine sniff impermissible under Kyllo. Fitzgerald, 864 A.2d at 1015; cf., e.g., United States v. Jackson, No. IP 03-79-CR-1 H/F, 2004 U.S. Dist. LEXIS 15676, at *9 (S.D. Ind. Feb. 2, 2004); United States v. Thomas, 757 F.2d 1359, 1367 (2d Cir. 1985). As discussed previously, that enhancement is limited to the binary yes-or-no inquiry as to the presence of narcotics and defies further examination, unlike the data provided by mechanical or electronic sense-enhancers. In addition, the Kyllo courts concern with advancing technology does not apply to dogs, whose sense of smell has been used in criminal investigations, not to mention private endeavors such as hunting game and locating lost children, for centuries with little or no meaningful change or improvement. Fitzgerald, 864 A.2d at 1016 (emphasis added). A dog is not technology, and the Kyllo standard cannot apply to Cliffords sniff of Mr. Taylors house. Clifford could not and did not reveal anything to Agent Mugan about the contents of Mr. Taylors house, except that there was marijuana inside.
B.
Mr. Taylor had no legitimate expectation of privacy
in his activities concerning possession, production and/or distribution of
marijuana, an illegal narcotic.
A canine sniff, which can reveal only the presence of contraband, is not a Fourth Amendment search because a person has no legitimate expectation of privacy in the possession of illegal narcotics. An investigative method which discloses only that which no individual has any right to possess does not violate the Fourth Amendment. Caballes, 543 U.S. at 410. In United States v. Jacobsen, the court similarly held that private possession of cocaine was not a legitimate privacy interest. Jacobsen, 466 U.S. at 123. Accordingly, the expectation of privacy in ones home does not extend to the hope that unlawful activity will go undetected. Brock, 417 F.3d at 697; United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir. 1993). The right to possess something is therefore antecedent to the expectation of privacy in such possession. As Mr. Taylor had no right to possess marijuana, he had no right to expect that he could keep such possession private within his home.
The court should not accept the defendants reliance on United
States v. Thomas, 757 F.2d at 1367, which held that a person does have a legitimate expectation of
privacy for whatever might be within his
home. A dog sniff, according to the Thomas court, intrudes upon that
expectation by revealing something about the homes contents which could not
otherwise be detected. Id. at
1367. The court essentially created a
heightened privacy interest in the home, as compared to an automobile or
airport luggage. Id. at
1366. This reasoning was followed in United
States v. Jackson, which also distinguished the home from public
places. Jackson, 2004 U.S. Dist.
LEXIS 15676, at *11. The court in State
v. Rabb made an even stronger statement:
the
home stands strong and alone, shrouded in a cloak of Fourth Amendment
protection
State v. Rabb, No. 4D02-5139, 2005 Fla. App. LEXIS 14430 (Sept.
14, 2005), at *4. Yet both Rabb and Jackson rely heavily on Kyllo by equating canine sniffs with the use of
sophisticated thermal-imaging technology to detect and identify the contents of
a home. Jackson, 2004 U.S. Dist.
LEXIS 15676, at *9; Rabb, 2005 Fla. App. LEXIS
14430, at *5. Because dogs are not technology,
the court must reject the reasoning that a canine sniff violates the sanctity
of the home.
This court has
never recognized a residence exception for canine sniffs as suggested by Thomas
and should not do so here. Indeed, Thomas
has little support in the federal courts due to its virtually ignoring Place
and Jacobsen. See, e.g.,
United States v. Hogan, 122 F. Supp. 2d 358, 369 (E.D.N.Y. 2000); Fitzgerald,
864 A.2d at 502; Dunn, 564 N.E.2d at 1057. Moreover, the Lingenfelter
court wrote that Thomas rests on an incorrect statement of the law. Lingenfelter,
997 F.2d at 638.
The Court of
Appeals of New York in Dunn specifically rejected the residence
exception. Dunn, 564 N.E.2d. at
1057. Under the Federal Constitution, which the court pointedly distinguished from
its own states constitution, the determining factor was the limited binary
nature of the search, regardless of any heightened expectation of privacy
which the court called irrelevant under Places rationale. Id. at 1057. As Atlantis state constitution has not been
implicated in the present case, the analysis of the Federal Constitution must
hold.
Even if the court
regards the home as sacred and respects individual citizens right to privacy
therein, we cannot allow criminal behavior to go on merely because it occurs
behind the closed doors and opaque walls of private residences. Many criminal statutes exist for the purpose
of punishing and deterring what is essentially private behavior, including the
possession and sale of narcotics, domestic violence, sexual abuse, possession
or production of child pornography, etc.
All of these activities typically occur within the privacy of ones own
home, yet the state has a compelling interest in preventing them. Some courts have expressed concern that
authorities might be emboldened to indiscriminately send drug-sniffing dogs
through our streets and neighborhoods to conduct random, suspicionless searches
of homes. See, e.g., Jackson,
2004 U.S. Dist. LEXIS 15676, at *16; Rabb,
2005 Fla. App. LEXIS 14430, at *9. While
the Government finds such an extreme and fanciful scenario unlikely, not to
mention impracticable, we find the opposite extreme rather more disturbing. Every home in America could become a drug house,
with authorities powerless to stop or even detect the production of greater and
greater quantities of dangerous narcotics.
C.
The canine sniff did not physically penetrate the
walls of Mr. Taylors house; the odor was in a space legally equivalent to
plain view.
The courts generally agree that any actual physical
intrusion into a constitutionally-protected area is an impermissible Fourth
Amendment search. See, e.g.,
Silverman v. United States, 365 U.S. 505, 510 (1961). A canine sniff of the exterior of a dwelling is permissible, provided the investigators are lawfully present at the location of the
sniff. Fitzgerald, 864 A.2d at
1017. In State v. Ortiz, the
court pointed out that that which an officer observes in plain view while lawfully pursuing an investigation is not
protected by the Fourth Amendment. State
v. Ortiz, 600 N.W.2d 805, 819 (Neb. 1999) (emphasis added). In addition to finding no legal distinction
between man and beast, as discussed previously, the Gadson
court noted that no invasion of privacy takes place when the suspicious and
incriminating vapors come wafting out across the public air to meet the dogs nose.
Gadson, 650 A.2d at 1355 (emphasis
added). The court saw no distinction
between the dog smelling something and the human officer smelling or hearing
something, essentially equating the senses of smell and hearing with that of
sight as applicable to the plain view principle. Id. at 1355. The court in United States v. Greisemer, No. 92-10364, 1993 U.S. App. LEXIS 26514 (9th
Cir. May 13, 1993), at *3, also found no invasion of privacy where a dog in a
public location outdoors detected the odor of narcotics, even though the odor
originated indoors.
In the present case, Clifford and the agents were lawfully present at the spot where the sniff was conducted, as the exterior of Mr. Taylors house was not part of the curtilage of that house. Mr. Taylors front door is a mere ten feet from a public street, three steps up from the ground with no covered porch or other structural appendage. The property has no fence, wall, gate, signage, nor any other discernible barrier to either mark its boundaries or advise passersby to keep out. In fact, the only notable feature of the property is a stepping-stone path leading to the door, a device which implies an invitation to walk up, not an admonishment to keep away. Nothing about the house or property suggests that Mr. Taylor intended or reasonably expected to keep any part of the outdoor space private. Agent Mugan and Clifford were therefore lawfully present where Clifford picked up the scent of Mr. Taylors marijuana plants.
Mr. Taylor had no
legitimate expectation of privacy in the fact that he possessed and was growing
marijuana in his home. Cliffords sniff,
conducted outside of the house from a publicly-accessible location, revealed
that fact alone and nothing more. The
sniff did not therefore violate Mr. Taylors Fourth Amendment rights.
II.
Even if a
canine sniff implicates the Fourth Amendment, it was permissible in this case
BECAUSE IT MET THE STANDARD of reasonable suspicion.
Where courts have held canine sniffs to be Fourth Amendment searches, they have imposed a standard of reasonable suspicion for the conduct of such searches. Ortiz, 600 N.W.2d at 820; Dunn, 564 N.E.2d at 1055. The standard for reasonable suspicion is the totality of circumstances which would lead a law enforcement officer to believe that the suspect was engaged in criminal activity. United States v. Arvizu, 534 U.S. 266, 273 (2002). In the present case the anonymous tip, the physical condition of the house and Agent Mugans fifteen years experience in the field of narcotics investigations, taken together, provided a sufficient factual predicate for the agents to bring Clifford to the Central Avenue address to conduct the sniff.
A.
Reasonable suspicion satisfies any Fourth Amendment
concerns for canine sniffs as searches because such sniffs are non-intrusive.
A canine sniff is non-intrusive, in that it cannot expose any specific details inside a home, automobile, or baggage in which a suspect has a legitimate privacy interest. See, e.g., Thomas, 757 F.2d at 1366; Ortiz, 600 N.W.2d at 815. Therefore, even courts that have held canine sniffs to be searches, such as under their respective state constitutions, have rejected the requirement of probable cause and required only a factual predicate of reasonable suspicion for the conduct of canine sniffs. See, e.g., Ortiz, 600 N.W.2d at 820; Dunn, 564 N.E.2d at 1055. This court in Arvizu defined reasonable suspicion as less than probable cause; an evaluation of the totality of the circumstances surrounding facts which lead authorities to reasonably suspect legal wrongdoing. Arvizu, 534 U.S. at 273. Even if no single fact or circumstance by itself is sufficient to establish reasonable suspicion, an investigating officer may take all of the information together to determine whether reasonable suspicion exists. Id. at 274; see also, Ortiz, 600 N.W.2d at 820.
A. The information provided by the anonymous tip, and the visible condition of the house viewed through the lens of the fifteen years experience and expertise of DEA Agent Mugan, were sufficient to establish reasonable suspicion that Mr. Taylor was engaged in illegal narcotics activity.
Under the totality
of the circumstances standard, the court may consider the investigating
officers experience a factor in determining whether suspicion of criminal
activity was reasonable. Arvizu, 534 U.S. at
273. Agent Mugan
is a fifteen-year veteran of narcotics investigations. In the present case, Agent Mugan received an anonymous tip that Mr. Taylor was
involved in a secret medical-marijuana club and was growing and distributing
the drug for that organization. Although
agents initially found no evidence that such a club existed, and could make no
assessment of the informants reliability, they were well aware that more and more of these illegal organizations
and advocacy groups have been appearing recently in various states, particularly since this courts decision in United
States v. Oakland Cannabis Buyers'
Coop., 532 U.S. 483
(2001). Therefore, the existence of a
new and as-yet-unidentified organization was a reasonable possibility. Agent Mugans
experience and professional responsibility required him to take that
possibility seriously.
Agent Mugans experience also renders him better able to
recognize and identify a drug house than a lay person. In fifteen years he has seen countless drug
houses. His experience is more than
adequate for him to know essentially what a drug house looks like. Upon observing the house, noting that every opening was secured and every window covered by blinds or
shades, Agent Mugan felt that the house resembled the
drug houses he had encountered before.
While a lay person could not draw such a conclusion, nor be justified
therein, someone of Agent Mugans experience and
expertise could reasonably do so. Agent Mugan was
told the house was a drug house, it looked like a drug house, so Agent Mugan reasonably suspected that it was a drug house. These
circumstances, taken together, provided reasonable suspicion for Agents Mugan and Kohn to retrieve Clifford and conduct the canine
sniff. Cliffords alert and the
subsequent discovery of drug paraphernalia pursuant to the search warrant
merely confirmed that reasonable suspicion.
CONCLUSION
For the foregoing reasons, the decision of the United States Court of Appeals for the Fourteenth Circuit affirming the district courts granting defendants motion to suppress tangible evidence should be REVERSED.
Dated: Endeavour, Atlantis ___________________________
March 23, 2006 Jason O. Braiman
Attorney for the Appellant