State v. Jerry Arroyo

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
January 4, 2022
In the Court of Appeals of Georgia
A21A1358. THE STATE v. ARROYO.
RICKMAN, Chief Judge.
After Jerry Arroyo was charged with trafficking cocaine, he filed a motion to
suppress the drugs seized from his apartment on the ground that the officers who
conducted a dog’s open-air sniff outside the apartment’s front door were not
authorized to be there. On appeal from the trial court’s grant of Arroyo’s motion, the
State argues that under the undisputed facts, the open-air sniff occurred in a common
area rather than within the protected curtilage of the apartment, with the result that
the search was reasonable as a matter of law. We disagree and therefore affirm.
We acknowledge the “three fundamental principles which must be followed
when conducting appellate review” of a trial court’s ruling on motion to suppress:
First, when a motion to suppress is heard by the trial judge, that judge
sits as the trier of facts. The trial judge hears the evidence, and his
findings based upon conflicting evidence are analogous to the verdict of
a jury and should not be disturbed by a reviewing court if there is any
evidence to support [them]. Second, the trial court’s decision with
regard to questions of fact and credibility must be accepted unless
clearly erroneous. Third, the reviewing court must construe the evidence
most favorably to the upholding of the trial court’s findings and
judgment.
(Citation and punctuation omitted; emphasis supplied.) Miller v. State, 288 Ga. 286,
286 (702 SE2d 888) (2010); see also Hughes v. State, 296 Ga. 744, 747 (1) (770 SE2d
636) (2015) (“The trier of fact is not obligated to believe a witness even if the
testimony is uncontradicted and may accept or reject any portion of the testimony”)
(citation and punctuation omitted).
Thus construed in favor of the judgment, the record at the pre-trial hearing and
at trial1 shows that on October 10, 2016, a Sandy Springs police officer received a tip
from a confidential informant that the informant had seen “several” kilograms of
1
In reviewing a trial court’s decision on a motion to suppress, we consider “all
relevant evidence of record, including evidence introduced at trial, as well as
evidence introduced at the motion to suppress hearing.” (Footnote, punctuation, and
emphasis omitted.) Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007).
2
cocaine inside Arroyo’s apartment. The investigator and a K-9 unit arrived at the
apartment complex shortly after noon. Although the investigator first testified that the
complex did not have an exterior gate, he later testified that there was such a gate,
that it was open “during business hours” and shut at night, and that “you ha[d] to have
a key fob or a number to get in at the gate – the call box.” The investigator could not
recall whether he and his partner actually did anything to assist the gate opening when
they entered the complex. The officers bypassed the leasing office to avoid any
“tipp[ing] off” of tenants, understanding as they did so that unauthorized visitors
could be asked to leave.
The investigator testified that the front door to Arroyo’s apartment, designated
as Apartment G, was located on an upper floor, with three other apartments’ doors
opening onto the same open-air corridor “inside the building.” When the K-9 officer
conducted a leashed dog sniff along the corridor, the dog alerted only in front of
Apartment G and lay down there. When the officers knocked on the door, Arroyo
answered. A woman and children were also present. The officers detained Arroyo
while they obtained a search warrant, which took less than two hours. The team
executing the warrant found the cocaine in a suitcase in one of the apartment’s two
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bedrooms. The suitcase contained clothes in Arroyo’s size, and a second bag nearby
contained his passport.
Arroyo was arrested and charged with trafficking cocaine. In May 2019,
Arroyo filed motions to suppress the statements he made at the scene as well as the
cocaine. After a pretrial hearing, the trial court granted Arroyo’s motion to suppress
the statement but denied his motion to suppress the cocaine, and the case proceeded
to trial. After the State rested, however, the trial court reconsidered its previous
ruling, granted Arroyo’s motion to suppress the drug evidence, and declared a
mistrial. After further proceedings, including the filing and withdrawal of a petition
for mandamus, the trial court filed a written order confirming its grant of Arroyo’s
motion. The trial court found that the “open-air sniff” took place “outside of the
apartment doorway” and noted the absence of any testimony that the investigator
himself could smell drugs from that spot. Based on the officers’ testimony, the trial
court concluded that “the area outside of Apartment G where [the dog] conducted an
‘open-air sniff’ was within the curtilage” of the apartment, that Arroyo had “a
reasonable expectation of privacy [there],” that the open-air sniff was therefore
“illegal,” and that the cocaine eventually seized was properly suppressed as the fruit
of that illegal search.
4
On appeal from this ruling,2 the State argues that the trial court erred when it
granted the motion because the area where the open-air sniff occurred was not part
of the protected curtilage.3 We disagree.
The search of the area outside of the apartment doorway at issue here,
conducted without a warrant, is “presumed to be invalid, and the State has the burden
of proving otherwise.” Williams v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015).
As the Supreme Court of Georgia noted in Espinoza v. State, 265 Ga. 171 (454 SE2d
765) (1995):
Whether evidence is found within the curtilage of a residence is a mixed
question of fact and law. On appeal, we accept the trial court’s findings
of fact unless clearly erroneous, but owe no deference to the trial court’s
conclusions of law. Instead, we are free to apply anew the legal
principles to the facts.
2
See OCGA § 5-7-1 (a) (4), which authorizes a State’s appeal “[f]rom an order,
decision, or judgment suppressing or excluding evidence illegally seized . . . in the
case of motions made and ruled upon prior to the impaneling of a jury or the
defendant being put in jeopardy, whichever occurs first[.]”
3
We do not address the State’s contention that the affidavit used to obtain the
warrant had sufficient information, independent of the K-9 alert, to justify the search
because the alert was a principal part of the “totality of the circumstances” described
in the affidavit. See Claire v. State, 247 Ga. App. 648, 649 (544 SE2d 537) (2001)
(magistrate evaluating an affidavit in support of obtaining a warrant must consider
“all the circumstances presented in the affidavit”).
5
(Citation omitted.) Id. at 172 (1). “Although the boundaries of the curtilage are clearly
marked for most homes, the analysis becomes more complicated when[, as here,] the
residence is an apartment in a multi-family dwelling in an urban area.” (Citations
omitted.) Id. at 173 (1). Espinoza also directs our attention to the United States
Supreme Court’s decision in United States v. Dunn, 480 U.S. 294 (107 SCt 1134, 94
LE2d 326) (1987), which lays out four factors to be considered in defining the extent
of a curtilage:
“[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 put, and [4] the steps taken
by the resident to protect the area from observation by people passing
by.”
Espinoza, 265 Ga. at 173 (2), quoting Dunn, 480 U. S. at 301; see also Florida v.
Jardines, 569 U.S. 1, 6-7 (II) (A) (133 SCt 1409, 185 LE2d 495) (2013) (setting out
the analytical framework applicable to a police dog open-air sniff on the front porch
of a private home). Finally,
the touchstone of Fourth Amendment analysis has been the question
whether a person has a constitutionally protected reasonable expectation
of privacy. The Amendment does not protect the merely subjective
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expectation of privacy, but only those expectations that society is
prepared to recognize as reasonable.
(Citations omitted.) Scott v. State, 270 Ga. App. 292, 293 (606 SE2d 312) (2004).
Construing the record in favor of the trial court’s judgment, as we are required
to do, we must conclude that the trial court did not err when it suppressed the
evidence at issue. As to the first Dunn factor, proximity, the evidence supports a
conclusion that the open-air sniff took place at or immediately in front of the
apartment door and that this area was within the protected curtilage. See Earl v. State,
309 So.3d 641, 649 (Ala. Crim. App. 2020) (use of a dog “to sniff the door seams of
[an] apartment” was an unreasonable and illegal search). As to the second Dunn
factor, enclosure, some evidence showed that the apartment complex had an exterior
gate that sometimes excluded the general public from the entire property, including
the corridor in front of the apartment itself. See United States v. Whitaker, 820 F.3d
849, 853 (II) (A) (7th Cir. 2016) (dog sniff performed at the door of an apartment was
an unreasonable search; a tenant had a “reasonable expectation against persons in the
hallway snooping into his apartment using sensitive devices not available to the
general public”). The same evidence could also be construed as an attempt to limit
“the nature of the uses to which the area is put” to visits by tenants and their
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authorized guests. See Dunn, 480 U. S. at 301; United States v. Thomas, 757 F.2d
1359, 1367 (A) (1) (2d Cir. 1985) (use of a trained dog outside an apartment door
“impermissibly intruded on [an occupant’s] legitimate expectation [of privacy]”).
“[I]n the absence of evidence of record demanding a finding contrary to the
judge’s determination, the appellate court will not reverse the ruling sustaining a
motion to suppress.” (Footnote and punctuation omitted; emphasis in original.) State
v. Osterloh, 342 Ga. 668, 673 (804 SE2d 696) (2017). Here, the trial court was
authorized to weigh the evidence before it as to proximity, exclusion, and use, and
then to conclude that Arroyo had some reasonable expectation of privacy in the area
immediately outside of his apartment door as within the curtilage of that apartment.
We therefore affirm the trial court’s suppression of the evidence later recovered from
the apartment as the product of an unreasonable search of the protected curtilage by
this K-9 unit.4 See Espinoza, 265 Ga. at 173-174 (2) (absence of a fence enclosing a
renter’s yard was not “conclusive” as to whether the area was within the curtilage;
4
Our holding should not be read as establishing any broad rule that K-9 open-
air searches of the hallways of multi-unit apartment buildings are constitutionally
impermissible. On the contrary, each case will turn on its own facts, as developed (or
not) in the record and as found by the trial court, subject to appellate review only for
factual or legal error. See Espinoza, 265 Ga. at 172 (1) (“On appeal, we accept the
trial court’s findings of fact unless clearly erroneous, but owe no deference to the trial
court’s conclusions of law.”).
8
“lack of exclusive control” does not “eliminate [an] expectation of privacy”).
Compare United States v. Miravalles, 280 F.3d 1328, 1332-1333 (11th Cir. 2002) (no
reasonable expectation of privacy in the common areas of an apartment building with
a malfunctioning and unlocked front door when “tenants had little control over those
areas, which are available for the use of other tenants, friends, and visitors,” including
delivery and postal workers).
Judgment affirmed. McFadden, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
9