Acting on a tip there was drug activity, LE went to Burston’s apartment with a K9 team and, released off leash, the K9 sniffed and alerted on a window of the apartment from about 6 to 10 inches away. Handler stood about 6 feet away from the window on the walkway leading to the apartment’s front door. Burston filed a motion to suppress the items seized from inside his apartment via search warrant which included the alert of the K9 as probable cause.
The court applied the Dunn (see United States v. Dunn)factors to determine if there was a violation of curtilage: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” The appellate court applied these factors, finding first, the area sniffed was in close proximity to Burston’s apartment—six to ten inches. That area was “immediately surrounding” his residence. Second, the fact that Burston set up a grill between his door and window indicated that Burston made personal use of the area by setting up a cooking grill between the door and his window. Third, there was a bush planted in the area in front of the window, which partially covered the window. One function of the bush was likely to prevent close inspection of Burston’s window by passersby. Finally, the court held that consideration of the first, third, and fourth Dunn factors outweighs the one Dunn factor that arguably militates against finding the area to be part of the home’s curtilage, i.e., the area was not surrounded by an enclosure. The bush, one could argue, served as a barrier to the area sniffed. Therefore, the appellate court held that the area sniffed constituted the curtilage of Burston’s apartment.
The court also held that LE did not have license for the physical invasion of Burston’s curtilage. LE does not have an implicit license to stand six to ten inches from the window in front of Burston’s apartment.” See Jardines, 133 S. Ct. at 1417 (“As we have described, [whether the officer’s conduct was an objectively reasonable search] depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered.”). Thus, because LE had no license to invade Burston’s curtilage and the area K9 sniffed was within the curtilage of Burston’s apartment, the appellate court held the K9 sniff was an illegal search in violation of Burston’s Fourth Amendment rights under Jardines.