Sniffing outside an apartment not a search


On March 28, 2018, the Fourth Circuit Court of Appeals decided the United States V. Mitchell in which the court discussed whether an officer conducted a search under the Forth Amendment when they “sniffed” the exterior of an apartment and smelled the order of marijuana emanating from an apartment.

The facts of the above case in brief are that two officers in Newport News, Virginia were on bike patrol in the area of an apartment complex when they both smelled what they believed to be burning marijuana.

After determining which apartment this order was emanating from, the officers used a ruse to lure the occupants out of the apartment.

The officers then based on the above information obtained a search warrant for the apartment.

The issue before the court was whether the officers conducted the search within the meaning of the Forth Amendment when they “sniffed” the exterior of the apartment.

A search or seizure has “undoubtedly occurred” when ” ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects.” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012))… The area “immediately surrounding and associated with the home,” the curtilage, is “part of [the] home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984).

However, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” California v. Ciraolo, 476 U.S. 207, 213 (1986) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)). This is because the “touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ ” Id. at 211 (quoting Katz, 389 U.S. at 360). Accordingly, it is unreasonable to expect law enforcement officers “to shield their eyes when passing by a home on public thoroughfares.” Id. at 213. Further, an apartment dweller maintains no expectation of privacy in the publicly accessible common areas of an apartment complex. United States v. Jackson, 728 F.3d 367, 373-74 (4th Cir. 2013). Law enforcement officers’ use of their unenhanced senses in publicly accessible spaces, therefore, does not amount to a “search” under the Fourth Amendment.[iii] [emphasis added]


The Court examined the case Florida v. Jardine where officers used a drug sniffing canine, entered onto the curtilage of Jardines home and used the dog to sniff around the house.

The difference is that in United States v. Mitchell, the officers were at an apartment complex, which outside the apartment its self is a public area.  Where as in Florida v. Jardine it was a private home and the officers encroached on the curtilage of the property to conduct the sniff.

The courts have reviewed several cases and has stated that no principled distinction exists between an officer using his eyes as opposed to his nose to detect incriminating evidence.  Stated simply, “a human sniff is not a search” as long as the officer has a reasonable right to be where he is.

One of the reasons I wanted to post this is because Idaho is surrounded by states now where marijuana is legal to be in the possession of and I am seeing numerous traffic stops of individuals coming from these states and being arrested for possession of marijuana.

Once the officer has probable cause, that is a legal reason to stop a vehicle, he has every right to be outside that vehicle. If any occupant, past or present, has smoked an illegal substance in that vehicle and the officer smells that order, he is within the law to detain that vehicle until he can obtain a search warrant for it.



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Stuart Robinson
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