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Search and Seizure — exclusionary rule

By: WISCONSIN LAW JOURNAL STAFF//July 30, 2014//

Search and Seizure — exclusionary rule

By: WISCONSIN LAW JOURNAL STAFF//July 30, 2014//

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U.S. Court of Appeals for the 7th Circuit

Criminal

Search and Seizure — exclusionary rule

Although a search was unlawful, the exclusionary rule does not apply where binding precedent authorized the search at the time it was conducted.

“[T]his case qualifies for the “binding appellate precedent” exception, because this case is exactly like Brock in all important respects. First, as in Brock, police had a trained drug dog conduct a brief sniff at the door to a living space. See Brock, 417 F.3d at 693. The fact that one dog sniff occurred outside the front door to Gutierrez’s home, and the other occurred outside the door to Brock’s room, is immaterial. In both cases, police were lawfully pre-sent at the time of the search: in Brock, a cohabitant gave consent to a search of the common areas of the residence, see United States v. Matlock, 415 U.S. 164, 171 (1974); and in Gutierrez’s case, the police walked up to the front door and knocked, which is lawful, see Jardines, 133 S. Ct. at 1416; King, 131 S. Ct. at 1862. In both cases, the officers then brought out their drug dog—now a constitutional violation under Jardines, but lawful at the time given Caballes and Place. In other words, at the time of both sniffs, there was no legal distinction between a ‘knock-and-talk’ and a ‘knock-and-sniff.’ Furthermore, in both Brock and Gutierrez’s cases, the police sought and obtained a warrant based in part on the positive dog alert. See Brock, 417 F.3d at 694. And in neither case did the police conduct a search until they were armed with a warrant. See id. This case and Brock are on all fours.”

Affirmed.

14-1159 U.S. v. Gutierrez

Appeal from the United States District Court for the Southern District of Indiana, Pratt, J., Flaum, J.

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