US v. Randy Makell

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:15-cr-00594-PX-1. Copies to all parties and the district court/agency. [1000290077]. [17-4106]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.
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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).
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“The legitimate

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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

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