United States v. Oscar Gutierrez

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1159

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSCAR GUTIERREZ,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:12-cr-00209-TWP-TAB-2 — Tanya Walton Pratt, Judge.

____________________

ARGUED JUNE 2, 2014 — DECIDED JULY 29, 2014

____________________

Before FLAUM and WILLIAMS, Circuit Judges, and DOW,

District Judge. ∗

FLAUM, Circuit Judge. Based on a tip that Oscar Gutierrez

was involved in drug trafficking, law enforcement went to

his home with a certified narcotics canine and knocked at the

front door. Officers saw movement inside, but no one an-

∗ Of the Northern District of Illinois, sitting by designation.

2 No. 14-1159

swered the door. The officers had the dog examine the front

door for the scent of narcotics, and he alerted. After knock-

ing for fifteen minutes, the officers forcibly entered and se-

cured the home, but they did not conduct a search until an

officer swore out an affidavit and returned with a search

warrant. That warrant relied on the dog’s positive alert. The

ensuing search revealed eleven pounds of methampheta-

mine in Gutierrez’s home.

All of this occurred in November 2012. In 2013, however,

the Supreme Court held that the use of a drug-sniffing dog

on an individual’s porch is a Fourth Amendment search.

Florida v. Jardines, 133 S. Ct. 1409, 1414–16 (2013). There is

thus no question that the sniff in Gutierrez’s case is no long-

er permissible, for the officers lacked a warrant (at the time

of the sniff) and no exception to the warrant requirement

applied; moreover, a warrant based primarily on an imper-

missible sniff would be invalid. However, under Davis v.

United States, 131 S. Ct. 2419 (2011), the evidence in this case

should not be suppressed if “binding appellate precedent

specifically authorize[d]” the officers’ conduct at the time

they acted. Id. at 2429 (emphasis omitted). The district court

found that our precedent did authorize the officers’ conduct.

We agree, and therefore affirm.

I. Background

In November 2012, officers received a tip from a confi-

dential informant that Gutierrez was involved in drug traf-

ficking and resided at a particular address in Indianapolis. A

few days later, numerous law enforcement officers—

including an agent with the Drug Enforcement Agency

(“DEA”) and detectives with the Indianapolis Metro Drug

Task Force (“Task Force”)—converged on the home where

No. 14-1159 3

Gutierrez lived. They brought a certified drug dog named

Fletch with them. When officers knocked on the front door,

they saw movement within the house but nobody answered.

Detective Sergeant Cline, a Task Force member, had Fletch

examine the front door for the scent of narcotics. Fletch gave

a positive indication when he smelled the door. The officers

continued to knock, and after about fifteen minutes of re-

ceiving no response, they were instructed by the Marion

County Prosecutor to enter and secure the home. They then

forcibly entered and conducted a sweep for occupants.

Sometime after the officers entered the home, Detective Ser-

geant Cline left to obtain a search warrant. In his search war-

rant affidavit, Cline identified the informant’s tip, the knock-

and-talk attempt, and Fletch’s positive indication at the door

as bases for the warrant. A state court magistrate found

probable cause and issued the search warrant.

After entering the home, officers found Gutierrez and

Cota, both of whom were tenants, in bed in separate rooms.

Gutierrez and Cota were immediately handcuffed and

brought to the kitchen. However, the actual search did not

begin until the warrant arrived at the residence. During the

search, DEA Agent Schmidt found a black duffel bag con-

taining 11.3 pounds of methamphetamine in the attic. Both

defendants were charged in December 2012 with a single

count of possession with intent to distribute over 50 grams

of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

In March 2013, the Supreme Court decided Florida v.

Jardines, 133 S. Ct. 1409 (2013), which held that a drug-dog’s

sniff on the curtilage of a home is a Fourth Amendment

“search.” Id. at 1414. Two months later, Gutierrez filed a mo-

tion to suppress, arguing that law enforcement’s investiga-

4 No. 14-1159

tion and conduct outside his home constituted a search for

which a warrant was required, and that any evidence recov-

ered during the subsequent search should be suppressed.

The district court denied the motion. Citing Jardines, the

court agreed that the dog sniff was a search that violated the

Fourth Amendment. However, the court determined that the

“good-faith” exception to the exclusionary rule applied.

The good-faith exception provides that the exclusionary

rule does not apply where police officers reasonably and in

good faith believe that their conduct is lawful, such as reli-

ance on a warrant later found to be invalid. United States v.

Leon, 468 U.S. 897, 922 (1984). This exception applies, among

other circumstances, when an officer conducts a search in

reliance on then-binding appellate precedent. See Davis, 131

S. Ct. at 2429. The district court determined that, under ap-

pellate precedent that was binding at the time of the dog

sniff, “officers were not only lawfully at the front door of De-

fendants’ home but at that time the dog sniff did not consti-

tute a search under the Fourth Amendment. The officers,

and the magistrate that issued the warrant, relied upon this

precedent in good faith, and the purpose of the exclusionary

rule would not be effectively advanced in this particular

case.” Therefore, the district court declined to suppress the

evidence seized in the search. The court separately found

that the officers’ entry prior to obtaining the search warrant

was not a Fourth Amendment violation, because under Sev-

enth Circuit precedent, “officers who enter and seize a home

to preserve the status quo while waiting for a search warrant

do not commit an independently sanctionable violation of

the Fourth Amendment so long as they had probable cause

at the moment of entry and the seizure is not unreasonably

long.” United States v. Etchin, 614 F.3d 726, 734 (7th Cir. 2010)

No. 14-1159 5

(citing Segura v. United States, 468 U.S. 796, 798 (1984)).

Gutierrez then pleaded guilty, but his plea agreement

permits him to appeal the district court’s denial of his sup-

pression motion. The court sentenced him to the mandatory

minimum, 120 months’ imprisonment. After Gutierrez

pleaded, the district court dismissed the indictment against

Gutierrez’s co-defendant, Jose Cota, on the government’s

motion.

II. Discussion

In reviewing the denial of a motion to suppress, we re-

view the district court’s factual findings for clear error and

its legal conclusions de novo. United States v. Bernitt, 392 F.3d

873, 876 (7th Cir. 2004).

A. Fourth Amendment principles

The Fourth Amendment guarantees the “right of the

people to be secure in their persons, houses, papers, and ef-

fects, against unreasonable searches and seizures,” and sub-

ject to “few exceptions,” it requires officers to obtain a war-

rant before searching a home. Kyllo v. United States, 533 U.S.

27, 31 (2001). This protection extends to the home’s curti-

lage—the area immediately surrounding and associated

with the home. California v. Ciraolo, 476 U.S. 207, 212–13

(1986). “A ‘search’ occurs when an expectation of privacy

that society is prepared to consider reasonable is infringed,”

United States v. Jacobsen, 466 U.S. 109, 113 (1984), or when the

government engages in an unlicensed physical intrusion of a

constitutionally protected area in order to obtain infor-

mation, Jardines, 133 S. Ct. at 1414–15.

The next relevant principle is the exclusionary rule,

which forbids the use of unlawfully obtained evidence at tri-

6 No. 14-1159

al. As late as 1971, the Supreme Court concluded that a

Fourth Amendment violation automatically led to exclusion

of the improperly obtained evidence. See Whiteley v. Warden,

Wyo. State Penitentiary, 401 U.S. 560, 568–69 (1971). However,

the Court shifted its approach thereafter, explaining that the

exclusionary rule is a “judicially created remedy,” not a per-

sonal constitutional right. United States v. Calandra, 414 U.S.

338, 348 (1974). Application of the exclusionary rule depends

on weighing the costs and benefits in each case. Its benefit is

deterring police misconduct, Leon, 468 U.S. at 916; but on the

cost side of the ledger, “[e]xclusion exacts a heavy toll on

both the judicial system and society at large,” as it often

“suppress[es] the truth” and risks “set[ting] the criminal

loose in the community without punishment,” Davis, 131

S. Ct. at 2427. Thus, exclusion is the option of “last resort,”

but it tends to be merited when police exhibit “deliberate,

reckless, or grossly negligent disregard for Fourth Amend-

ment rights.” Id. (citations omitted). Exclusion does not ap-

ply in several circumstances, including when police conduct

a search in objectively reasonable, good-faith reliance

on “binding appellate precedent.” Id. at 2429.

In Davis, the officers did just that. They conducted a rou-

tine traffic stop, lawfully arrested the driver and passenger,

and then searched the car, where they found evidence of an

additional, unrelated crime. Id. at 2425. Governing Eleventh

Circuit precedent permitted this car search at the time, but

while Davis’s case was on direct appeal, the Supreme Court

found this sort of car search unconstitutional. See Arizona v.

Gant, 556 U.S. 332, 335 (2009). Nonetheless, when Davis’s

appeal reached the Court, it held that exclusion was inap-

propriate: “when binding appellate precedent specifically

authorizes a particular police practice, well-trained officers

No. 14-1159 7

will and should use that tool to fulfill their crime-detection

and public-safety responsibilities. An officer who conducts a

search in reliance on binding appellate precedent does no

more than act as a reasonable officer would and should act

under the circumstances.” Davis, 131 S. Ct. at 2429 (citations,

brackets, and internal quotation marks omitted).

In light of Davis, the evidence in Gutierrez’s case should

not be suppressed if binding appellate precedent authorized

the officers’ conduct. We therefore proceed to consider our

relevant precedent, United States v. Brock, 417 F.3d 692 (7th

Cir. 2005).

B. Seventh Circuit precedent

In Brock, law enforcement executed a search warrant at

David Brock’s home at 3375 Payton Avenue in Indianapolis,

where they found drugs. Brock was not home, but three oth-

er individuals were. When the police questioned them, one

of them said that he lived next door at 3381 Payton Avenue,

and that he watched over both houses. This man said that

Brock rented a room at the 3381 residence, which Brock used

as his “stash house.” He also told the police that Brock

transported methamphetamine between the two residences,

and was storing 16 to 17 pounds of methamphetamine in his

room at 3381. Finally, this man gave the police a key to 3381,

and consented to a search of the common areas of that resi-

dence. The 3381 residence consisted of a kitchen, a living

room, and three locked bedrooms. One bedroom was locked

and had a sign on the door that read, “Stay Out. David.” An

officer with a drug-sniffing dog, Yoba, was called to 3381 to

corroborate the presence of narcotics. Yoba alerted while

sniffing just outside Brock’s bedroom. Based on all of these

facts (including Yoba’s alert), an officer sought a warrant,

8 No. 14-1159

which a magistrate issued. Officers then forcibly entered

Brock’s room, where they found 17 pounds of methamphet-

amine and one pound of cocaine. Brock moved to suppress

the evidence, arguing that the dog sniff outside his locked

bedroom door constituted an unlawful warrantless search,

and that the warrant that was issued in reliance on the sniff

violated his Fourth Amendment rights. Id. at 693–95. We af-

firmed the denial of his motion to suppress.

Brock relied on the numerous Supreme Court decisions

holding that a drug-dog sniff does not constitute a search for

Fourth Amendment purposes because it reveals only the

presence or absence of narcotics and therefore implicates no

legitimate privacy interest. Id. at 695 (citing Illinois v. Caballes,

543 U.S. 405, 408–09 (2005) (dog sniff of a car during a traffic

stop); Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (dog sniff

at drug interdiction checkpoint); United States v. Jacobsen, 466

U.S. 109, 123 (1984) (chemical field test of a substance found

inside a package); United States v. Place, 462 U.S. 696, 707

(1983) (dog sniff of a traveler’s luggage in the airport)). We

acknowledged that, unlike those cases, the dog sniff in

Brock’s case occurred in his home. But we rejected Brock’s

reliance on Kyllo v. United States, 533 U.S. 27 (2001), which

involved a thermal imaging search of the defendant’s home.

The Kyllo Court had emphasized that the use of a thermal

imaging device revealed both lawful and unlawful conduct,

so we reasoned that a dog sniff was different because the

Court had repeatedly explained that a dog sniff detected on-

ly contraband and was not even a Fourth Amendment

“search.” See, e.g., Place, 462 U.S. at 707 (“[T]he canine sniff is

sui generis. We are aware of no other investigative procedure

that is so limited both in the manner in which the infor-

mation is obtained and in the content of the information re-

No. 14-1159 9

vealed by the procedure. Therefore, we conclude that … ex-

posure of respondent’s luggage … to a trained canine … did

not constitute a ‘search’ within the meaning of the Fourth

Amendment.”).

Brock therefore held that “the dog sniff inside Brock’s res-

idence was not a Fourth Amendment search because it de-

tected only the presence of contraband and did not provide

any information about lawful activity over which Brock had

a legitimate expectation of privacy.” 417 F.3d at 696. 1 We

further explained: “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.” Id. at

697.

C. Brock remained good law at the time of the search in

this case

Brock is no longer good law; Jardines expressly held that a

drug-dog’s sniff on the curtilage is a Fourth Amendment

search for which a warrant is typically required. 133 S. Ct. at

1414. But that does not necessarily help Gutierrez, for the

question here is whether Brock was good law at the time of

the search in this case. Gutierrez contends that it was not. He

argues that Jardines itself did not change the law, but merely

acknowledged a change that had already occurred in United

States v. Jones, 132 S. Ct. 945 (2012), which was decided ten

months before the search of Gutierrez’s home. However, we

1 We noted that our holding was consistent with the majority of our sis-

ter circuits’ opinions in dog-sniff cases. See Brock, 417 F.3d at 696 (collect-

ing cases).

10 No. 14-1159

conclude that Brock remained good law after Jones and was

not effectively overruled until Jardines.

In Jones, the Court held that the government violated the

Fourth Amendment by attaching a GPS tracker onto a sus-

pect’s car without a valid warrant and without the suspect’s

consent. See 132 S. Ct. at 949. Four concurring justices would

have examined the case solely under the reasonable expecta-

tion of privacy rubric from Katz v. United States, 389 U.S. 347

(1967), and they criticized the majority’s approach as “un-

wise” and as having “little if any support in Fourth

Amendment case law.” 132 S. Ct. at 958 (Alito, J., concurring

in the judgment). But the majority concluded that, in addi-

tion to the Katz test, the Fourth Amendment incorporated a

common-law trespass test, so that a common-law trespass

into a constitutionally protected area could itself violate the

Fourth Amendment. Id. at 949–51.

Nothing in Jones called into question the underlying

premise of Caballes and Place—and thus of Brock—that an in-

dividual has no legitimate expectation of privacy in contra-

band, and therefore that a drug-dog’s sniff is not a Fourth

Amendment search. Moreover, the Court had previously

emphasized that dog sniffs were “sui generis,” Place, 462 U.S.

at 707, suggesting that doctrinal changes to other Fourth

Amendment principles might have no effect on this unique

area.

Furthermore, less than a year before Jones, the Court not-

ed that it is unproblematic for “law enforcement officers

who are not armed with a warrant [to] knock on a door” of a

home, including for investigatory purposes; in doing so,

they “do no more than any private citizen might do.” Ken-

tucky v. King, 131 S. Ct. 1849, 1862 (2011); see also 1 WAYNE R.

No. 14-1159 11

LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH

AMENDMENT § 2.3(e), at 592–93 (4th ed. 2004) (“The route

which any visitor to a residence would use is not private in

the Fourth Amendment sense, and thus if police take that

route for the purpose of making a general inquiry or for

some other legitimate reason, they are free to keep their eyes

open ....”). Jones did not call into question any statements in

King.

Thus, before Jardines, the Court had explicitly allowed

police officers both to use dog sniffs and to enter the curti-

lage to seek information—both without a warrant. (Indeed,

both actions remain permissible even after Jardines, so long

as they are done separately.) The Court had never suggested

that, when combined, these individually lawful actions

might become unlawful.

The foregoing analysis is sufficient to determine that

Brock remained good law at the time of the search of

Gutierrez’s home, but we find that Jardines itself further rein-

forces our conclusion. Jardines’s holding—that the use of a

drug dog on the defendant’s porch was a Fourth Amend-

ment search—was based on an implied license theory. The

Court reasoned that there is an implied license to approach

the door, knock, and wait briefly to be received—but this li-

cense has a limited scope, which is based on custom. 133

S. Ct. at 1415–16. Specifically, this license is limited in space,

time, and purpose. Id. And the key in Jardines was purpose:

there was no “customary invitation” to use “a trained police

dog to explore the area around the home in hopes of discov-

ering incriminating evidence.” Id. at 1416. The Jardines Court

therefore rejected the state’s argument—which echoed

Brock—that cases like Caballes, Jacobsen, and Place permitted

12 No. 14-1159

the police to use warrantless dog sniffs, even on the curti-

lage, because the technique did not infringe any legitimate

expectation of privacy.

The Jardines Court noted that “[j]ust last Term,” in Jones,

“we considered an argument much like” Florida’s reasona-

ble-expectations argument. Id. at 1417. Thus, Gutierrez con-

tends, Jardines itself recognized that Jones abrogated Brock’s

rationale. We disagree. Significantly, there was no reliable

way to predict, after Jones, that the dispositive question

would be the scope of the implied license—or that the im-

plied license would exclude dog sniffs. See Orin S. Kerr, The

Curious History of Fourth Amendment Searches, 2012 Sup. Ct.

Rev. 67, 69 (2012) (observing—after Jones but before

Jardines—that “implementing the Jones trespass test will re-

quire courts to resolve its scope. … Courts called on to inter-

pret the trespass test must do so with little in the way of his-

tory or precedent to guide them.”). As the four dissenting

justices in Jardines pointed out, “in the entire body of com-

mon-law decisions, the Court has not found a single case

holding that a visitor to the front door of a home commits a

trespass if the visitor is accompanied by a dog on a leash. On

the contrary, the common law allowed even unleashed dogs

to wander on private property without committing a tres-

pass.” 133 S. Ct. at 1424 (Alito, J., dissenting); see also id. at

1420 (arguing that the Court’s decision “is based on a puta-

tive rule of trespass law that is nowhere to be found in the

annals of Anglo-American jurisprudence”). For all of these

reasons, we find that Brock remained good law after Jones.

D. The officers satisfied the good-faith exception here

In light of the foregoing, this case qualifies for the “bind-

ing appellate precedent” exception, because this case is ex-

No. 14-1159 13

actly 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.

It is true, of course, that unlike in Brock, the police in

Gutierrez’s case entered the home and conducted a brief

sweep before they had a warrant. Yet our precedent permits

as much to preserve the status quo while officers obtain a

warrant, see Etchin, 614 F.3d at 734, and the district court

found it “undisputed that the actual search did not begin un-

til the warrant arrived back at the residence.” Thus, this mi-

nor factual distinction does not make a legal difference.

Another unimportant factual distinction is the fact that

the officers in Gutierrez’s case knocked at the front door for

14 No. 14-1159

about fifteen minutes. While it may rise to a constitutional

violation if officers linger at the door too long, see, e.g.,

Jardines, 133 S. Ct. at 1415, it is undisputed that (1) the offic-

ers were allowed to do a “knock-and-talk,” where they at-

tempt to get information voluntarily from a suspect, see id. at

1416; and (2) the officers here used Fletch shortly after the

knock-and-talk attempt, and he quickly alerted. Only then

did the officers allegedly “linger.” The crucial moment was

the dog sniff, because the positive alert formed the primary

basis of the search warrant; and under Brock, the officers

(and Fletch) were lawfully where they were at the time of

the sniff. Thus, even if there were a “lingering” violation in

this case, it would be harmless.

In sum, because binding appellate precedent permitted

law enforcement’s conduct at the time it took place, this case

falls within Davis’s exception to the exclusionary rule.

In so holding, we reject Gutierrez’s contention that al-

leged official misconduct in this case merits exclusion of the

evidence. He raises two arguments. The first is that the offic-

ers in this case acted in obvious disregard of established

trespass principles. As noted above, however, Supreme

Court precedent clearly (if separately) permitted knock-and-

talks and drug-dog sniffs, and our precedent clearly permit-

ted lawfully present officers to conduct a dog sniff at the

threshold of a living space. It is too simplistic to suggest, as

Gutierrez does, that Jones and Jardines simply reaffirmed the

principles of Olmstead v. United States, 277 U.S. 438 (1928).

Olmstead (and its progeny) turned on a straightforward

point: “[t]here was no entry” into defendants’ homes or of-

fices, so the Fourth Amendment was not implicated. 277 U.S.

at 464. Jardines was more nuanced: it forbade entering the

No. 14-1159 15

curtilage for the purpose of doing a dog sniff, but it did not

forbid entering the curtilage for the purpose of knocking on

the door. Unlike Jardines, Olmstead never considers purpose.

Because the reasoning in these two cases is quite different,

Gutierrez’s first argument is unpersuasive.

The gravamen of his second argument is that six months

after the search of Gutierrez’s home, DEA Agent Schmidt

submitted an affidavit that was inconsistent in certain re-

spects with his own (and with Detective Sergeant Cline’s)

contemporaneous reports of the search in this case. For in-

stance, in his affidavit, Schmidt claimed that Gutierrez and

Cota had given verbal consent to search the home, but the

district court found that Gutierrez was never asked for con-

sent and Cota expressly denied consent. Gutierrez argues

that Schmidt’s alleged misrepresentation supports exclusion

here, as Schmidt exhibited “deliberate, reckless, or grossly

negligent disregard for Fourth Amendment rights.” Davis,

131 S. Ct. at 2427 (citation and internal quotation marks

omitted). The inconsistencies after the fact give us some

pause, but as noted, the officers acted in strict compliance

with binding precedent. Furthermore, they secured the

premises immediately but did not conduct a search until

they had obtained a then-valid search warrant. Finally, the

district court wisely held an evidentiary hearing and re-

solved factual disputes in Gutierrez’s favor. This somewhat

odd situation, which arose after the fact, does not constitute

a deliberate or reckless Fourth Amendment violation.

III. Conclusion

Because binding appellate precedent permitted law en-

forcement’s conduct at the time it occurred, we AFFIRM the

district court’s denial of Gutierrez’s motion to suppress.