United States v. Abari (Minn. 2020) 2020 U.S. Dist. 146273

Curtilage; Reliability Foundation

Subject challenged a search warrant in which the affidavit included a PSD sniff and alert (final indication of sitting) at an apartment’s lower door seam (as well as additional information). The apartment was an AirBnB rental.

Subject challenged the PSD sniff on the determination by the magistrate issuing the search warrant that PSD was reliable; the court indicated that PSD was noted to be certified currently and consistently for past several years. The court held that there was enough information in affidavit to prove a reliability foundation (see note below). In addition, subject complained that the sniff took place in the curtilage of his home. The court applied the Dunn factors; 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 ; and 4) the steps taken by the resident to protect the area from observation by people passing by. The court held that the only evidence available to it was that the area sniffed was a common hallway in a multi-unit apartment building; therefore, subject has not demonstrated that the area searched was curtilage. Finally, the court held that even if the PSD alert/final indication was stricken from the affidavit, probable cause would still be found (good faith exception).