Earl v. State

309 So.3d 641

Ezingim Demetrius EARL

v.STATE of Alabama

CR-18-0332

Court of Criminal Appeals of Alabama.

May 29, 2020

William K. Bradford of Bradford Ladner, LLP, Mobile, for appellant.

Steve Marshall, atty. gen., and Tracy M. Daniel, asst. atty. gen., for appellee.

MINOR, Judge.¹

Although the cops came by not to bring Earl in--at least not that day--they did, eventually, search the apartment high and low.² Afterwards, law-enforcement officers arrested Ezingim Demetrius Earl and charged him with trafficking in marijuana, see § 13A-12-231(a), Ala. Code 1975, based on the amount of marijuana they found in his apartment and in a 1998 Honda Accord vehicle associated with him. Earl moved to suppress the evidence found in the apartment and the vehicle. He argued that under Florida v. Jardines, 569 U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013), the officers violated his Fourth Amendment³ right to be free from unreasonable searches and seizures by allowing a drug-sniffing dog to sniff the apartment door without first obtaining a search warrant. He also argued that the search of the Honda Accord in the parking lot of the apartment complex two days later was an unreasonable search. The circuit court denied Earl's motion to suppress, and, based on the marijuana found in the apartment, Earl pleaded guilty to trafficking in marijuana.⁴ The circuit court sentenced him, as a habitual felony offender, to life in prison. He preserved and reserved the right to appeal the denial of his motion to suppress.

We consider whether the use of a drug-sniffing dog to sniff the door seams of the apartment was, under the reasoning of Jardines, an illegal search in violation of Earl's Fourth Amendment right to be free from unreasonable searches. We hold that it was, and that the remaining facts in the affidavit did not show probable cause to issue a search warrant for the apartment. We reverse and remand.

I. The K9 Drug-Sniff and the Affidavit

On the morning of January 23, 2017, three members of the Mobile Police Department--including Officer Adam Partridge and Corporal Pat McKean--went to the Lafayette Square Apartments in Mobile to walk the police department's K9 dog, Oscar, around Earl's apartment and two vehicles registered to Earl's girlfriend to see if Oscar would "alert." The officers had learned that Earl lived with his girlfriend in apartment 206 at the Lafayette Square Apartments. Officer Partridge had identified Earl as a suspect in a case he had investigated a few weeks earlier involving the seizure from a hotel room of 21 grams of marijuana and a large amount of cash. Following that seizure, a confidential informant had bought marijuana from Earl through a controlled buy, and Earl had delivered the marijuana in a 1998 Honda Accord vehicle to the confidential informant. Officer Partridge learned that Earl had two prior convictions for first-degree possession of marijuana, and on January 17 and January 19, he made controlled buys of marijuana from Earl. Both times, Earl sold the drugs to Officer Partridge from the 1998 Honda Accord.

When the officers arrived at the Lafayette Square Apartments, Cpl. McKean, who is a K9 handler, took Oscar to the parking lot of the apartment and "ran Oscar around" on a 15-foot lead. Oscar "alerted" on the 1998 Honda Accord and on a 2009 Jeep Wrangler vehicle, both registered to Earl's girlfriend.

Although none of the controlled buys involved apartment 206, and, although the officers had no information that any illegal activity had taken place at that apartment, Cpl. McKean took Oscar into the courtyard area outside the apartment building to see if Oscar would alert at apartment 206. Officer Partridge testified at the suppression hearing that he believed that Earl was storing marijuana in apartment 206.

"It's my experience that drug dealers, often times, will not sell drugs from their residence. It's common that they will use other locations and meet places to sell drugs so that it doesn't bring any attention to their residence. And, often times, evidence inside a residence is less likely to be found by an officer than on the street corner or elsewhere. So, I believe that he was using that residence as a place to possibly store his drugs."

(R. 16.) Cpl. McKean explained at the suppression hearing his search of the apartment door with Oscar.

"I didn't take him directly to that door. As you read in the affidavit, it says an open area search, and what an open area search means is we don't have the dog on a short line and I'm saying, ‘hey, search here, search here.’ I just have the dog on about a 15-foot lead and I'm taking him through an area, an open area like a parking lot.

"Like the apartment how this was, it was an apartment building with the doors facing out to, like, a big wide open courtyard. And I knew the apartment number, but I wouldn't take him straight to that door. I'll try to hit--I'll give him an opportunity to pass it. He's either going to go to it or he's not."

(R. 30.) Oscar alerted at the door of apartment 206, indicating to the officers that Oscar detected an odor of a controlled substance.

That same morning, Officer Partridge submitted an affidavit to a Mobile County district judge to obtain a search warrant for apartment 206 and for the 1998 Honda Accord and the 2009 Jeep Wrangler. The affidavit stated, in relevant part:

"Within the last month, I have received information regarding a subject named Ezingim Earl DOB 06/05/1987. The information I received is that Ezingim Earl sells large quantities of marijuana within Mobile County. I worked a narcotics case involving the seizure of $35,790 in US currency and approximately 21 grams of marijuana in which Ezingim Earl was the suspect. Detective Pettway has also made a controlled buy of marijuana from Ezingim Earl within the last month using a confidential informant of the Mobile Police Department. Ezingim Earl has two convictions for possession of marijuana 1st. I also received information from two different sources regarding where Ezingim Earl lives. Both of these different sources of information have told me that Ezingim Earl lives with Shantavia Johnson in Lafayette Square. Lafayette Square is the address listed in section one of this affidavit. Shantavia Johnson is also currently receiving power at the address listed in section one of this affidavit. I have also received information that Ezingim Earl uses both of the vehicles listed in section one of this affidavit to sell marijuana. I have made two controlled buys of marijuana from Ezingim Earl within the last week. Both of these buys have been made from the 1998 Honda Accord.

"Within the last 72 hours, Corporal Pat McKean, Detective Evans, and I drove to address listed in section one of this affidavit. Corporal McKean is a K9 handler with Mobile Police Department. K9 Oscar is a certified narcotic dog for the Mobile Police Department. K9 Oscar is trained and certified to detect odors of marijuana, cocaine, crack cocaine, methamphetamine, and/or heroin. Corporal McKean conducted an open air sniff at the door seams of the apartment doors located in the building. K9 Oscar gave a final response and alerted at the door of the apartment listed in section one of this affidavit indicating to Corporal McKean that he detected an odor of a controlled substance coming from the apartment for which he is certified to detect. K9 Oscar also gave a final response on the passenger side of both of the vehicles listed in section one of this affidavit which indicated to Corporal McKean that he detected an odor of a controlled substance coming from the vehicles for which he is certified to detect."

(Emphasis added.) The affidavit contained a statement that, based on his training and experience, Officer Partridge expected to find contraband in or on the property searched. Officer Partridge testified at the suppression hearing that he did not provide any more information to the district judge other than what he put in his affidavit. The judge signed a search warrant that same morning for apartment 206 and for both vehicles.

Law-enforcement officers, including Officer Partridge, executed the search warrant two days later. They found about 27 pounds of marijuana in apartment 206.⁵

Earl argues on appeal that under Florida v. Jardines the drug-sniff of the apartment door was an illegal search that violated his Fourth Amendment right to be free from unreasonable searches and seizures. He contends that a law-enforcement officer may not, without a search warrant, use a drug-sniffing dog to enter the curtilage of an apartment to sniff for drugs and that any information learned through such a search is tainted and cannot provide the probable cause to support a search warrant. Earl contends that, when the information about the drug-sniff is removed from the affidavit supporting the search warrant, the remaining information cannot support a finding of probable cause for the search warrant.

"In reviewing a decision of a trial court on a motion to suppress evidence, in a case in which the facts are not in dispute, we apply a de novo standard of review." State v. Otwell, 733 So. 2d 950, 952 (Ala. Crim. App. 1999). The parties agree that the facts are undisputed and that this Court must review de novo the circuit court's decision denying Earl's motion to suppress.

II. Jardines Analysis

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." U.S. Const. amend. IV. "[T]he Court since the enactment of the Fourth Amendment has stressed ‘the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.’ " Oliver v. United States, 466 U.S. 170, 178, 104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214 (1984) (quoting Payton v. New York, 445 U.S. 573, 601, 100 S. Ct. 1371, 1387, 63 L. Ed. 2d 639 (1980) ). As the ...