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Court held in Jacobsen that a chemical field test of a substance found inside a package was not a Fourth Amendment search because the test “merely discloses whether or not a particular substance is cocaine.” 466 U.S. at 123, 104 S.Ct. 1652. As there is no legitimate interest in possessing cocaine, the field test did not compromise any legitimate privacy interest. Id.; see also Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (officers’ practice of walking a narcotics-detection dog around the exterior of each car at a drug interdiction checkpoint does not transform the seizure into a search). Defendant tries to distinguish these cases on the ground that he has a far greater privacy interest inside his home, particularly inside the bedroom, than one has in a public space or even a car. He relies on the Court’s decision in Kyllo, which held that the use of a thermal-imaging device to detect relative amounts *696 of heat within a private home was a Fourth Amendment search and must be supported by probable cause and a warrant. In Kyllo, the Court held that where the government uses “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Id. at 40, 121 S.Ct. 2038. Kyllo does not support defendant’s position. The Kyllo Court did reaffirm the important privacy interest in one’s home. See id. at 37, 121 S.Ct. 2038 (“In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”). However, as the Court subsequently explained in Caballes, it was essential to Kyllo’s holding that the imaging device was capable of detecting not only illegal activity inside the home, but also lawful activity, including such intimate details as “at what hour each night the lady of the house takes her daily sauna and bath.” Caballes, 125 S.Ct. at 838 (quoting Kyllo, 533 U.S. at 38, 121 S.Ct. 2038). As the Court emphasized, an expectation of privacy regarding lawful activity is “categorically distinguishable” from one’s “hopes or expectations concerning the nondetection of contraband in the trunk of his car.” Id. Based on this reasoning, we hold that the dog sniff inside Brock’s residence was not a Fourth Amendment search because it detected only the presence of contraband and did not provide any information about lawful activity over which Brock had a legitimate expectation of privacy.1 This conclusion is consistent with previous decisions of this Court, as well as those of the majority of our sister circuits, which have held that canine sniffs used only to 114 detect the presence of contraband are not Fourth Amendment searches. See United States v. Vasquez, 909 F.2d 235, 238 (7th Cir.1990) (collecting cases) (canine sniff of a private garage from a public alley was not a warrantless search). Accord United States v. Reed, 141 F.3d 644, 650 (6th Cir.1998) (where canine team was lawfully present inside a home, the canine sniff itself was not a Fourth Amendment search); United States v. Reyes, 349 F.3d 219, 224 (5th Cir.2003) (dog sniff of passengers exiting bus from distance of four to five feet was not a Fourth Amendment search); United States v. Roby, 122 F.3d 1120, 1125 (8th Cir.1997) (defendant’s reasonable expectation of privacy in his hotel room did not extend to hallway outside his room, and no warrant was needed to bring trained dog to conduct a narcotics sniff in hallway); United States v. Lingenfelter, 997 F.2d 632, 638 (9th Cir.1993) (canine sniff of a commercial warehouse was not a search because defendant “could have no legitimate expectation that a narcotics canine would not detect the odor of marijuana”); United States v. Colyer, 878 F.2d 469, 477 (D.C.Cir.1989) (dog sniff of a sleeper car from train’s public corridor was not a search because it was not overly intrusive and “did not expose noncontraband items that otherwise would remain hidden from view”). But see United States v. Thomas, 757 F.2d 1359, 1366-67 (2d Cir.1985) (canine sniff of doorway outside defendant’s apartment was a search *697 because it impermissibly intruded on defendant’s legitimate expectation that the contents of his closed apartment would not be sensed from outside his door). Whatever subjective expectation Brock might have had that his possession of narcotics would remain private, that expectation is not one “that society is prepared to consider reasonable.” Jacobsen, 466 U.S. at 113, 104 S.Ct. 1652. The Second Circuit’s holding to the contrary in Thomas, on which defendant relies, has been rightly criticized. See Lingenfelter, 997 F.2d at 638 (Thomas’s implication “that a person has a reasonable expectation that even contraband items hidden in his dwelling place will not be revealed” is inconsistent with Supreme Court precedent); Colyer, 878 F.2d at 475 (questioning correctness of Thomas’s assertion that possessor of contraband “had a legitimate expectation that the contents of his closed apartment would remain private”). [2] Critical to our holding that the dog sniff in this case was not a Fourth Amendment search is the fact that police were lawfully present inside the common areas of the residence with the consent of Brock’s roommate. While Brock contends that he had a legitimate expectation that the contents of his locked bedroom would remain private, he does not contest in any meaningful way Godsey’s
authority to allow police inside the common areas of their shared home.2 It is well settled that a third party with common authority over a home may consent to a search, obviating the need for a search warrant. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Aghedo, 159 F.3d 308, 310 (7th Cir.1998). Third-party consents to search shared property are based on a “reduced expectation of privacy in the premises or things shared with another.” United States v. Ladell, 127 F.3d 622, 624 (7th Cir.1997). When someone shares an apartment or a home with another individual, he “ordinarily assumes the risk that a co-tenant might consent to a search, at least to all common areas and those areas to which the other has access.” Id. Once Godsey authorized the police to explore the common areas of 3381, the entry of a narcotics-sniffing dog into that space did not infringe on any legitimate privacy interest. Everything behind Brock’s locked bedroom door remained undetected except the narcotics, which Brock had no right to possess in the first place. The dog sniff from the common area of defendant’s residence, where police were present by consent, did not violate defendant’s Fourth Amendment rights, and the district court did not err in denying Brock’s motion to suppress. B. Trial Rulings Defendant claims that the district court committed several errors in conducting the trial. He argues that the court improperly limited his cross-examination of a government witness and abused its discretion in refusing to give a missing witness instruction. Brock contends that these errors deprived him of a fair trial and warrant reversal of his conviction. 1. Cross-Examination [3] Defendant argues that the district court abused its discretion in limiting his *698 cross-examination of Joel Dyer, one of the government witnesses who testified that he sold large quantities of methamphetamine to Brock and later purchased the drug from him. Prior to Brock’s trial, Dyer had been charged in an unrelated case in state court. Those state charges were later dropped, and federal authorities brought charges against Dyer arising out of the same conduct. Dyer was federal custody at the time of his testimony in Brock’s trial. During her cross-examination of Dyer, defense counsel attempted to discredit his testimony by showing that Dyer cooperated with the government and testified against defendant for the purpose of avoiding habitual offender status on his state 115 charges. Defense counsel questioned Dyer about his prior felony convictions, and the government objected. The court held a side bar during which the parties spent several minutes debating the factual underpinnings of defendant’s bias theory and the most appropriate way for defense counsel to question Dyer. The district court proposed a specific question, and the following exchange took place: The Court: You can ask him if he was ever promised anything in the state court in exchange for his cooperation. Defense Counsel: Okay. Prosecutor: And I think it is clear that he never cooperated or provided any cooperation until January 30, 2003. The Court: You can ask him, because if he wasn’t, he wasn’t, and if he was, he was, and you will be satisfied. Defense Counsel: Right. * * * * * * Defense Counsel: To be clear, I can ask him if he was promised anything in state court, as far as dismissal or anything Prosecutor: In exchange for cooperation. The Court: Right, you can ask that. (Tr. at 252-53.) Defense counsel then proceeded to ask Dyer several questions about whether he was promised or received any benefit in exchange for his testimony against Brock. Dyer replied that he did not, and testified in response to further questions that he was not approached about cooperating in Brock’s case until January 2003, after his state charges were dismissed and federal charges were brought against him. Brock now argues that the district court deprived him of his Sixth Amendment right to confront adverse witnesses by limiting his opportunity to question Dyer about his potential bias to a single question. The government contends that defendant waived or at least forfeited his opportunity to make this argument because his trial counsel indicated that she was “satisfied” with the district court’s proposed question and did not formally object. Defense counsel’s assent to the district court’s instruction
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UNIVERSITY OF THE DISTRICT OF COLUM
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article that appeared in the period
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incarcerated children in the Distri
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Section 3: Writing Exercise Section
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Opinion PERRY, J. 73 So.3d 34 Supre
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activities, or statements that he e
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damaged package and notified federa
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B. “Sniff Test” at a Private Ho
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was standing in front of the door,
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justified on the basis of reasonabl
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The probable cause affidavit listed
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unwavering expectation that there w
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otherwise prompt his dog to alert.
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(quoting State v. Morsman, 394 So.2
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society recognizes as reasonable. A
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obtained through the search is not
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without implicating the Fourth Amen
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[14] The Government contends, howev
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the President and Attorney General
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nuisance. IV Blackstone, Commentari
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The other ‘eroding’ case cited
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11 Jones v. United States, 362 U.S.
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103 S.Ct. 2317 Supreme Court of the
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accompanying remedy. Here, for exam
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northbound on an interstate frequen
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inapplicable to the decision to iss
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L.Ed. 1879 (1949). Justice BRENNAN
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case. As the Court points out, “I
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forcefully suggest that the exclusi
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S.Ct., at 3073-3074. (WHITE, J., di
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law-enforcement officers have recog
Page 63 and 64: government enforcement agent.” Id
Page 65 and 66: advance an important underlying sub
Page 67 and 68: Americans must be that the Court gi
Page 69 and 70: 3 In Spinelli, police officers obse
Page 71 and 72: The only reference to Hereford’s
Page 73 and 74: v. United States, supra; Sibron v.
Page 75 and 76: susceptible to the interpretation t
Page 77 and 78: 8 Rugendorf v. United States, 376 U
Page 79 and 80: 104 S.Ct. 1652 Supreme Court of the
Page 81 and 82: will not be betrayed.” United Sta
Page 83 and 84: *126 In sum, the federal agents did
Page 85 and 86: and that search has not left incrim
Page 87 and 88: privacy in the presence or absence
Page 89 and 90: surrounding the use of the techniqu
Page 91 and 92: 1437, 4 L.Ed.2d 1688 (1960); Henry
Page 93 and 94: 26 See, e.g., Michigan v. Long, 463
Page 95 and 96: Rodriguez, 497 U.S. 177, 181, 110 S
Page 97 and 98: how relatively warm—Kyllo was hea
Page 99 and 100: concurring). To be sure, the homeow
Page 101 and 102: homeowner would even care if anybod
Page 103 and 104: 4 This view comports with that of a
Page 105 and 106: unless the dog sniff itself infring
Page 107 and 108: probable cause to stop the car for
Page 109 and 110: and, implicitly, the application of
Page 111 and 112: 3 Kyllo was concerned with whether
Page 113: (500 grams and an unspecified amoun
Page 117 and 118: AFFIRMED. We retain jurisdiction an
Page 119 and 120: that “[t]he right of the people t
Page 121 and 122: field” did not constitute a Fourt
Page 123 and 124: Government’s unrestrained power t
Page 125 and 126: y the government upon the privacy o
Page 127 and 128: own difficulties. It involves a deg
Page 129 and 130: search unless it is achieved by suc
Page 131 and 132: 88 Or. L. Rev. 829 Oregon Law Revie
Page 133 and 134: hidden in open locations, such as f
Page 135 and 136: While the Place Court’s failure t
Page 137 and 138: location may be important in evalua
Page 139 and 140: III Framing the Canine Home-Sniff D
Page 141 and 142: seemingly making impermissible what
Page 143 and 144: possessions. Without minimizing the
Page 145 and 146: 4. Even Surreptitious Canine Sniffs
Page 147 and 148: the sniff--to the satisfaction of a
Page 149 and 150: focused on the routineness of the a
Page 151 and 152: 6 See People v. Dunn, 564 N.E.2d 10
Page 153 and 154: 27 See Robert C. Bird, An Examinati
Page 155 and 156: 323 (Friedrich G. Barth et al. eds.
Page 157 and 158: pre-Place decisions issued by the U
Page 159 and 160: 97 See Illinois v. Caballes, 543 U.
Page 161 and 162: 121 Id. at 37 n.4 (majority opinion
Page 163 and 164: 147 462 U.S. 696 (1983). 148 See in
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171 Dunaway v. New York, 442 U.S. 2
Page 167 and 168:
199 As Justice Souter explained,
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to school). 219 Cf. Katz & Golembie
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240 See Kyllo v. United States, 533
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263 In 2004, photographs emerged th
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285 Id. at 1362. The story of this
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306 But cf. Fitzgerald v. State, 86
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328 Riley, 488 U.S. at 448 (observi
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1 Search & Seizure § 2.3 (4th ed.)
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establish a right to privacy therei
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were locked and could only be opene
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The Wright rule also should not be
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to investigate. Noting that a metal
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active domestic use. It housed ten
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Ciraolo,191 involving aerial survei
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ackyard of the building was complet
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feet. The viewing from the helicopt
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cases as Ciraolo, Riley and Dow man
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premises were abandoned where all c
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22 Young v. Harrison, 284 F.3d 863
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37.1 McKenney v. Harrison, 635 F.3d
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(1983); State v. Eddy, 519 A.2d 113
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68 Dinkens v. State, 291 So.2d 122
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eceived no answer to knock on front
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870 (1987). In such a case, the fac
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“Second, the agents had a legal r
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131 United States v. Llanes, 398 F.
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167 The reference is to the “open
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however by fact lights were on insi
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properly crossed defendant’s land
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view”); State v. Merrill, 252 Neb
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the area within the ‘curtilage’
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is not to conclude that a search of
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265 Such analysis was challenged by
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