Opposition Brief — Eric Tyrell Johnson, Petitioner v. United States

Supreme Court briefMar 4, 2026

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No. 25-774

In the Supreme Court of the United States

ERIC TYRELL JOHNSON, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

D. JOHN SAUER

Solicitor General

Counsel of Record

A. TYSEN DUVA

Assistant Attorney General

CELIA CHOY

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether law-enforcement officers conducted an unreasonable search in violation of the Fourth Amendment

when they brought a drug-detection dog to the common

hallway outside the door of petitioner’s apartment.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (4th Cir.):

United States v. Coleman-Fuller, No. 23-4237 (Jan.

15, 2025)

United States v. Spruill, No. 23-4289 (Aug. 24, 2023)

(II)

TABLE OF CONTENTS

Page

Opinions below ................................................................................ 1

Jurisdiction ...................................................................................... 1

Statement ......................................................................................... 2

Argument ....................................................................................... 10

Conclusion ...................................................................................... 22

TABLE OF AUTHORITIES

Cases:

City of Indianapolis v. Edmond, 531 U.S. 32 (2000) ......... 11

Collins v. Virginia, 584 U.S. 586 (2018) ......................... 15, 16

Dandridge v. Williams, 397 U.S. 471 (1970) ....................... 18

Davis v. United States, 564 U.S. 229 (2011) .................. 19, 20

Fitzgerald v. State, 864 A.2d 1006 (Md. 2004) ..................... 20

Florida v. Jardines, 569 U.S. 1 (2013) ............................ 13, 14

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949) ............................................................... 18

Herb v. Pitcairn, 324 U.S. 117 (1945) ................................... 18

Herring v. United States, 555 U.S. 135 (2009) .................... 19

Hudson v. Michigan, 547 U.S. 586 (2006)............................ 19

Illinois v. Caballes, 543 U.S. 405 (2005) ............... 9, 11, 12, 14

Kyles v. Whitley, 514 U.S. 419 (1995) ................................... 18

Kyllo v. United States, 533 U.S. 27 (2001) ................. 8, 12, 14

Lewis v. United States, 143 S. Ct. 2499 (2023) .................... 10

Lindsey v. State, 127 A.3d 627 (Md. Ct. Spec. App.

2015), cert. denied, 135 A.3d 417 (Md. 2016) ..................... 20

Makell v. United States, 586 U.S. 1051 (2018) .................... 10

People v. Bonilla, 120 N.E.3d 930 (Ill. 2018),

cert. denied, 589 U.S. 916 (2019) ................................... 17

State v. Rendon, 477 S.W.3d 805

(Tex. Crim. App. 2015) ................................................... 17

(III)

Cases—Continued:

Page

Supervisors v. Stanley, 105 U.S. 305 (1882) ........................ 18

United States v. Calandra, 414 U.S. 338 (1974) .................. 19

United States v. Dunn, 480 U.S. 294 (1987) .................... 9, 15

United States v. Jacobsen, 466 U.S. 109 (1984) ............. 11, 13

United States v. Johnston, 268 U.S. 220 (1925) .................. 18

United States v. Karo, 468 U.S. 705 (1984) .................... 21, 22

United States v. Legall, 585 Fed. Appx. 4

(4th Cir. 2014), cert. denied, 574 U.S. 1183 (2015) ............. 8

United States v. Leon, 468 U.S. 897 (1984) .......................... 19

United States v. Lewis, 38 F.4th 527 (2022),

cert. denied, 143 S. Ct. 2499 (2023) ............................... 17

United States v. Makell, 721 Fed. Appx. 307

(4th Cir.), cert. denied, 586 U.S. 1051 (2018) .................... 20

United States v. McKenzie, 13 F.4th 223 (2021),

cert. denied, 142 S. Ct. 2766 (2022) ............................... 16

United States v. Place, 462 U.S. 696 (1983) ..................... 9, 11

United States v. Thomas, 757 F.2d 1359

(2d Cir. 1985), cert. denied, 474 U.S. 819 (1985),

and 479 U.S. 818 (1986) .................................................. 16

United States v. Whitaker,

820 F.3d 849(7th Cir. 2016) ............................................ 16

Constitution, statutes, and rule:

U.S. Const. Amend. IV ........................................... 8, 11, 13, 20

18 U.S.C. 922(g)(1)................................................................. 2, 7

18 U.S.C. 924(a)(2) (2018) ......................................................... 2

18 U.S.C. 924(e)(1) ..................................................................... 7

21 U.S.C. 841(a)(1) ................................................................. 2, 7

21 U.S.C. 841(b)(1)(B)(i) ....................................................... 2, 7

21 U.S.C. 841(b)(1)(B)(vi) (2018) ......................................... 2, 7

Sup. Ct. R. 10 ........................................................................... 18

In the Supreme Court of the United States

No. 25-774

ERIC TYRELL JOHNSON, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-17a)

is reported at 148 F.4th 287. The memorandum opinion of

the district court (Pet. App. 18a-60a) is available at 2022

WL 2484143. A subsequent memorandum opinion of the

district court is available at 2022 WL 2789093.

JURISDICTION

The judgment of the court of appeals was entered on

August 5, 2025. On October 22, 2025, the Chief Justice

extended the time within which to file a petition for a

writ of certiorari to and including January 2, 2026. The

petition for a writ of certiorari was filed on December

31, 2025. This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1).

(1)

STATEMENT

Following a jury trial in the United States District

Court for the District of Maryland, petitioner was convicted of conspiring to distribute and possess with intent

to distribute heroin and fentanyl, in violation of 21 U.S.C.

841(b)(1)(B)(i) and 21 U.S.C. 841(b)(1)(B)(vi) (2018); possessing controlled substances with intent to distribute, in

violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(i) and 21

U.S.C. 841(b)(1)(B)(vi) (2018); and possessing a firearm

and ammunition following a felony conviction, in violation of 18 U.S.C. 922(g)(1) and 18 U.S.C. 924(a)(2) (2018).

Am. Judgment 1. The district court sentenced him to 150

months of imprisonment, to be followed by five years of

supervised release. Id. at 2-3. The court of appeals affirmed. Pet. App. 1a-17a.

1. a. In 2019, a Washington County, Maryland narcotics task force, working with the Drug Enforcement

Administration, was investigating a drug-trafficking organization suspected of selling fentanyl and heroin in

Maryland and West Virginia. Pet. App. 3a. Through use

of wiretaps, physical surveillance, and other investigative techniques, the task force officers came to suspect

that petitioner was distributing drugs from Apartment

201 in Greenwich Place, a large apartment complex in

Owings Mills, Maryland. Id. at 3a, 91a-104a.

The lead investigator, Agent Jasen Logsdon of the

Washington County Sheriff ’s Department, decided to

conduct a dog sniff from outside petitioner’s apartment

door. Pet. App. 3a. Agent Logsdon received permission

from the building’s management to access the building’s

common areas for that purpose. C.A. App. 364. On August 7, 2019, at approximately 3 a.m., using a passcode

or swipe card provided by the building’s management,

Agent Logsdon entered the building, accompanied by

Detective George Vigue and his canine partner, Cody.

Pet. App. 3a; C.A. App. 365.

The Greenwich Place complex was “very large,” with

“well over 100 separate apartments” located on “multiple floors.” C.A. App. 362-363. Apartment 201 was located on the second floor of the building, on a long hallway with numerous units. Pet. App. 3a; C.A. App. 365.

Because it was the closest apartment to the common elevator and stairwell, other tenants and their visitors

routinely walked past it on their way to and from other

units. Pet. App. 4a; C.A. App. 373. The door was recessed

from the hallway by approximately three and a half feet

and flanked on both sides by storage or utility closets.

Pet. App. 4a; C.A. App. 372-374. At the time of the investigators’ visit, there were no personal possessions in

front of or around the door to Apartment 201. Pet. App.

4a, 79a-80a; C.A. App. 369.

Upon arriving in the second-floor hallway, Agent

Logsdon directed Detective Vigue to the general area

in which to perform the canine sniff. C.A. App. 365-367.

After being deployed by Detective Vigue, Cody conducted a “free air scan” (i.e., a scan not directed to a

particular spot) and gave a positive alert for the odor of

controlled substances emanating from the lower door

seam of Apartment 201. Id. at 366; see id. at 397; Pet.

App. 4a.

b. The next day, a task force officer applied to a Maryland state judge for a warrant to search Apartment 201.

Pet. App. 4a. The affidavit in support of the warrant set

forth the basis for probable cause to believe that petitioner was distributing drugs from Apartment 201 in

Greenwich Place. Id. at 78a-113a.

As recounted in the affidavit, by June 2019, investigators had identified an individual named Philander Spruill

as the leader of a local drug trafficking organization and

obtained a court-authorized wiretap for his cellphone.

Pet. App. 87a-91a, 94a. On July 9, 2019, the officers intercepted a call between Spruill and a drug purchaser

in which Spruill indicated that he was on his way to meet

his supplier to purchase a quantity of drugs. Id. at 92a94a. About an hour and a half later, Spruill’s cellphone

pinged in Owings Mills, Maryland, approximately a kilometer from the Greenwich Place apartment complex. Id.

at 94a. Shortly thereafter, Spruill began traveling back

toward his residence in Hagerstown, Maryland. Ibid.;

see id. at 101a.

Later that afternoon, investigators observed Spruill

arrive back at his residence. Pet. App. 94a. About 15 minutes later, they intercepted a call between Spruill and

an individual named Bret Redman regarding Redman

purchasing two grams of heroin or fentanyl from Spruill

at a predetermined location. Id. at 94a-95a. Investigators then observed Spruill leave his residence carrying

a gray Walmart grocery bag and followed him as he

drove away. Id. at 95a. Shortly after Spruill parked at

the location discussed in the intercepted call, Redman

arrived and got into Spruill’s car. Ibid. When Redman

got out of Spruill’s car, he was carrying the gray

Walmart grocery bag, which appeared to be full of clear

plastic bags. Ibid.

As Spruill drove away, Redman crossed the street

and threw the Walmart bag into an open trash container

on the sidewalk. Pet. App. 95a. After Redman left, investigators recovered the Walmart bag and found numerous plastic sandwich bags with cut corners, a large

plastic bag, a foil pack, and two wax papers, all with a

tan powder that they suspected to be fentanyl residue.

Id. at 95a-96a. The investigators believed that those items

were consistent with Spruill having purchased a quantity of drugs from his supplier, cut and packaged it for

resale, and then handed the garbage to Redman for disposal. Id. at 96a.

The next day, investigators intercepted a call between

Spruill and an unknown man. Pet. App. 97a. Spruill again

indicated that he was on his way to pick up drugs. Id.

at 97a-98a. Shortly thereafter, a court-authorized GPS

tracking device affixed to Spruill’s car indicated that he

traveled to Owings Mills and parked outside the main

entrance to Greenwich Place. Id. at 98a. The investigators went to Greenwich Place and saw Spruill leave the

building and get into his car, after which he returned to

his residence. Id. at 98a-99a.

The investigators then intercepted a phone call between Spruill and the same unknown man. Pet. App. 99a100a; see id. at 97a. The man indicated that he would take

“two of them”—which investigators knew from experience is common drug terminology for two grams or other

units of illegal drugs—and Spruill responded that the

drugs were “being made as we speak.” Id. at 100a; see id.

at 101a. A mixing sound was audible in the background.

Id. at 100a. Half an hour later, Spruill again called the

man and told him that he could have “the two.” Id. at 101a.

On July 30, 2019, a task force officer monitoring a

surveillance camera at the rear of Spruill’s residence

observed a car pull into the driveway, while Spruill was

home. Pet. App. 101a-102a. An unknown man got out of

the driver’s side of the car and went into Spruill’s residence. Id. at 102a. A short time later, an unknown woman

got out of the passenger’s side of the car and smoked a

cigarette while waiting outside the residence. Ibid. A few

minutes later, the man came out of the residence and got

into the car’s passenger seat. Ibid. The woman got into

the driver’s seat and drove away. Ibid.

The officer ran the car’s license plates and found that

it was registered to Latrice Campbell. Pet. App. 102a.

Maryland State Police records showed that the car had

been stopped three times in 2019 and that each time, it

was driven by petitioner. Ibid. The officer compared petitioner’s driver’s-license photograph to the unknown man

captured on the surveillance camera at Spruill’s residence

and determined that it was “possibly” the same person.

Ibid. Investigators then sent a subpoena to the management of Greenwich Place inquiring whether petitioner

or Campbell leased an apartment there. Id. at 103a.

The subpoena response indicated that Campbell was

the lessee of Apartment 201. Pet. App. 103a. On August

4, 2019, a task force officer observed Spruill’s car parked

in a lot in the same business and residential complex as

Greenwich Place. Id. at 103a-104a. Intercepted communications and the court-authorized GPS tracking device on Spruill’s car indicated that Spruill also traveled

to Greenwich Place on July 15, July 24, and August 6,

2019. Id. at 104a.

The affidavit also detailed petitioner’s extensive

criminal history, which included multiple convictions for

drug-related offenses. Pet. App. 88a. And it recited common practices of narcotics traffickers gleaned from the

affiant’s training, experience, and participation in other

drug investigations. For example, the affidavit explained

that “it is common for narcotics traffickers to secrete

contraband, proceeds of narcotics sales and records of

narcotics transactions in secure locations within their residences” and “the residences of relatives and associates

* * * for ready access and to conceal these items from

law enforcement authorities.” Id. at 105a-106a.

The affidavit further stated that on August 7, 2019,

Detective Vigue and Cody performed a “free air scan”

of Apartment 201’s “main entry door.” Pet. App. 104a.

Detective Vigue advised that Cody “gave a positive alert

for the odor of a controlled dangerous substance.” Ibid.

c. The Maryland judge issued the warrant, and police

searched Apartment 201 on August 12, 2019. Pet. App.

4a; C.A. App. 125-127. The police recovered “a heroinfentanyl powder mixture, a handgun, ammunition, cell

phones, cash, and other items indicative of drug-dealing.”

Pet. App. 4a.

2. A grand jury in the District of Maryland returned

a third superseding indictment charging petitioner with

conspiring to distribute and possess with intent to distribute heroin and fentanyl, in violation of 21 U.S.C.

841(b)(1)(B)(i) and 21 U.S.C. 841(b)(1)(B)(vi) (2018);

possessing controlled substances with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(i)

and 21 U.S.C. 841(b)(1)(B)(vi) (2018); and possessing a

firearm and ammunition following a felony conviction,

in violation of 18 U.S.C. 922(g)(1) and 924(e)(1). C.A. App.

52, 55, 58-59.

Petitioner moved to suppress the evidence obtained

from the search of his apartment, arguing that the affidavit contained illegally obtained evidence in the form

of the results of the warrantless dog sniff. D. Ct. Doc.

213-1 (May 27, 2021). The district court held an evidentiary hearing at which it heard testimony from Agent

Logsdon and from a defense investigator hired to measure the recessed area in front of Apartment 201. Pet. App.

54a-56a. The court then denied the suppression motion.

Id. at 54a-59a.

The district court determined that, under the circumstances, the “area just outside [petitioner’s] apartment

door is not within the curtilage” of his home. Pet. App.

56a. The court observed that building management granted access to the building’s common areas “routinely

upon request” and that the hallway outside petitioner’s

apartment was accessed regularly by other tenants on

their way to and from their units and daily by the building’s cleaning staff. Ibid. It found that petitioner “had

no property based right outside the apartment door.”

Id. at 58a. And the court explained that because the dog

sniff “ ‘disclosed only the presence of illegal narcotics,’ ”

it did not violate petitioner’s “reasonable expectation of

privacy.” Id. at 58a-59a (quoting United States v. Legall, 585 Fed. Appx. 4, 6 (4th Cir. 2014) (per curiam),

cert. denied, 574 U.S. 1183 (2015)).

A jury found petitioner guilty on all counts. Pet. App.

63a. The district court sentenced him to 150 months of

imprisonment, to be followed by five years of supervised

release. Am. Judgment 2-3.

3. The court of appeals affirmed. Pet. App. 1a-17a.

The court of appeals explained that the dog sniff did

not violate petitioner’s reasonable expectation of privacy.

Like the district court, the court of appeals found that

petitioner’s reliance on Kyllo v. United States, 533 U.S. 27

(2001), which involved officers’ use of a thermal-imaging

device directed at a house, was misplaced. Pet. App. 8a9a. While the court accepted that the Fourth Amendment

generally forbids the government from using “a specialized device ‘not in general public use’ ” to detect details

about the interior of a home that are normally hidden

from view, it found that this Court’s precedent does not

treat dog sniffs as a search. Id. at 8a (quoting Kyllo, 533

U.S. at 40).

Quoting this Court’s decisions, the court of appeals explained that the “interest in possessing contraband cannot

be deemed ‘legitimate,’ ” Pet. App. 8a (quoting Illinois

v. Caballes, 543 U.S. 405, 408 (2005)); that a dog sniff

“exposes ‘only the presence or absence of narcotics, a

contraband item,’ ” id. at 9a (quoting United States v.

Place, 462 U.S. 696, 707 (1983)); and that a dog sniff

therefore “cannot violate any reasonable expectation of

privacy.” Ibid. (citing Place, 462 U.S. at 707). And it further explained that this Court’s logic was not tied to the

dog sniffs of a car or luggage that provided the backdrop for those decisions, but instead applies equally to

a residence. Id. at 9a-10a.

The court of appeals also explained that the dog sniff

was not an invasion of any property-based interests. Pet.

App. 11a. The court disagreed with petitioner’s contention that the area outside his door “qualifies * * * as

protected ‘curtilage.’ ” Ibid. (citation omitted). Applying the four factors identified in United States v. Dunn,

480 U.S. 294 (1987)—“proximity of the area claimed to

be curtilage to the home, whether the area is included

within an enclosure surrounding the home, the nature

of the uses to which the area is put, and the steps taken

by the resident to protect the area from observation by

people passing”—the court of appeals found that “as the

district court explained, th[e] area was part of a common hallway, used regularly by other building residents

and by building cleaning staff,” and “despite locks at the

front door, entry to the interior hallways was not restricted * * * because building management routinely

granted consent to enter on request.” Pet. App. 11a-13a

(citations and internal quotation marks omitted).

The court of appeals rejected petitioner’s contrary

argument that “Dunn’s first factor—proximity of purported curtilage to the home—weighs so heavily in his favor that it is dispositive.” Pet. App. 13a. While accepting

that the factor “has been treated as highly relevant” in

some cases, the court found the “context of those cases is

critically different” because petitioner, unlike the defendants in those cases, lacked “the right to exclude others”

from the area at issue. Id. at 13a-14a. In doing so, the

court stressed that that “[m]ulti-dwelling units come in all

kinds of configurations, and some may include ‘common’

areas different from the apartment hallway here,” and

that “[o]ther cases may present different factual twists.”

Id. at 16a. And the court made clear that it “h[e]ld only

that on the facts as found by the district court and disputed by neither party, the police did not intrude on

Fourth Amendment-protected curtilage when they conducted a dog sniff in the common hallway just outside

[petitioner’s] apartment door.” Id. at 17a.

ARGUMENT

Petitioner renews his contentions that a drug-detection

dog’s sniff outside his apartment infringed his reasonable expectation of privacy (Pet. 19-22), and that officers

trespassed on his curtilage by entering a common hallway area outside his apartment (Pet. 22-24). The court

of appeals correctly rejected those contentions, and petitioner identifies no conflict warranting further review in

this case. In addition, this case would be an unsuitable

vehicle for resolving the question presented because petitioner’s challenge to the denial of his suppression motion

independently fails on two alternative grounds advanced

by the government below that the court of appeals did

not need to reach. This Court has previously denied petitions raising similar issues. See Makell v. United States,

586 U.S. 1051 (2018) (No. 18-5509); Lewis v. United

States, 143 S. Ct. 2499 (2023) (No. 22-6774). It should follow the same course here.

1. The court of appeals correctly affirmed the district court’s determination that the dog sniff outside petitioner’s apartment door did not infringe petitioner’s

reasonable expectation of privacy.

a. This Court has repeatedly held that a sniff by a drugdetection dog is not a search for Fourth Amendment purposes because it does not infringe any legitimate privacy

interest. The Court first addressed the issue in United

States v. Place, 462 U.S. 696 (1983), which considered

whether a drug-detection dog’s sniff of luggage at an

airport constituted a Fourth Amendment search.

The Court determined that it did not, reasoning that a

“canine sniff is sui generis” because it “discloses only the

presence or absence of narcotics, a contraband item.”

Place, 462 U.S. at 707. The Court accordingly explained

that even though “the sniff tells the authorities something about the contents of the luggage,” the information obtained is so limited that it does not infringe a

protected privacy interest and so does “not constitute a

‘search.’ ” Ibid. And in City of Indianapolis v. Edmond,

531 U.S. 32 (2000), the Court applied Place’s reasoning

to a drug-detection dog’s sniff of a car at a drug-interdiction checkpoint. Id. at 40.

In Illinois v. Caballes, 543 U.S. 405 (2005), the Court

reaffirmed that a drug-detection dog’s sniff does not intrude on any legitimate privacy interest, holding that the

Fourth Amendment permits police to use a drug-detection

dog to sniff a vehicle during a valid traffic stop. Id. at 407409. The Court explained that “any interest in possessing

contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that only reveals the possession of

contraband ‘compromises no legitimate privacy interest.’ ” Id. at 408 (quoting United States v. Jacobsen, 466

U.S. 109, 123 (1984)).

The Court observed that its holding was “entirely consistent” with Kyllo v. United States, 533 U.S. 27 (2001),

which had held that the use of a thermal-imaging device

to detect the growth of marijuana in a house constituted

an unlawful search. Caballes, 543 U.S. at 409. The Court

explained that the device in Kyllo “was capable of detecting lawful activity—in that case, intimate details in a

home, such as ‘at what hour each night the lady of the

house takes her daily sauna and bath.’ ” Id. at 409-410

(quoting Kyllo, 533 U.S. at 38). In contrast, “[a] dog sniff

conducted during a concededly lawful traffic stop that

reveals no information other than the location of a substance that no individual has any right to possess does

not violate the Fourth Amendment.” Id. at 410.

b. Petitioner here does not dispute that the dog sniff

outside his apartment door revealed only the presence of

illegal drugs. Thus, as the court of appeals recognized, a

straightforward application of this Court’s precedent establishes that the dog sniff did not infringe petitioner’s

reasonable expectation of privacy. See Pet. App. 8a-10a.

Petitioner offers no sound basis in this Court’s precedent for his contention (Pet. 25-27) that Place and Caballes should not apply to dog sniffs conducted outside

a home, as opposed to sniffs of luggage or the outside of a

car. As the court of appeals recognized, the reasoning of

Place and Caballes is “categorical, not context-specific.”

Pet. App. 10a. Those decisions establish that an individual’s legitimate expectation of privacy in his lawful activities is “categorically distinguishable” from any “hopes

or expectations concerning the nondetection of contraband” in his possession. Caballes, 543 U.S. at 410. That

principle is consistent with and draws support from other

precedent in analogous contexts, including this Court’s

holding in Jacobsen that a chemical test that reveals

only the presence or absence of contraband “compromises no legitimate privacy interest” and therefore does

not constitute “a search subject to the Fourth Amendment.” 466 U.S. at 123-124.

This Court’s opinion in Florida v. Jardines, 569 U.S.

1 (2013), does not support petitioner’s reasonableexpectation-of-privacy claim. In Jardines, the Court

held that police officers conducted a Fourth Amendment search when they took a drug-sniffing dog onto

the front porch of a house owned by a suspect, and the

dog moved to the base of the front door and alerted to

the presence of drugs inside the house. Id. at 3-4, 11-12.

The Court concluded that the officers’ actions amounted

to a Fourth Amendment search because they had trespassed on a constitutionally protected area (the front

porch) and exceeded the scope of any implied license to

approach the front door when they brought a drugsniffing dog to explore the area in hopes of obtaining

evidence of a crime. Id. at 7-9. Because that physical

intrusion was “enough to establish that a search occurred,” the Court had no need to, and did not, “decide

whether the officers’ investigation of Jardines’ home violated his expectation of privacy.” Id. at 11.

Instead of relying on this Court’s precedent, petitioner instead invokes the view expressed in a threeJustice concurrence in Jardines that a privacy violation

had occurred in that case. Pet. 20; see Jardines, 569 U.S.

at 12-16 (Kagan, J., concurring). But four dissenting Justices, in the only other opinion to address that question

in Jardines, saw “no basis for concluding that the occupants of a dwelling have a reasonable expectation of privacy in odors that emanate from the dwelling and reach

spots where members of the public may lawfully stand.”

569 U.S. at 24 (Alito, J., dissenting). Similarly, no other

Justices endorsed the view that use of a drug-detection

dog constitutes, like the thermal-imaging device at issue in Kyllo, “ ‘a device that is not in general public use’ ”

that enables the government “ ‘to explore details of the

home that would previously have been unknowable without physical intrusion,’ ” such that “police officers cannot use it to examine a home without a warrant.” Id. at

14-15 (Kagan, J., concurring) (quoting Kyllo, 533 U.S.

at 40).

Petitioner also echoes (Pet. 21) Justice Souter’s Caballes dissent in asserting that dog sniffs should be

treated as “modern investigatory techniques that are the

functional equivalent of home invasions, like the thermalimaging device in Kyllo.” While the dissent sought to

“rethink[] Place’s analysis” based in part on Kyllo, the

Court did not do so. Caballes, 543 U.S. at 411 (Souter,

J., dissenting); see id. at 413-414 & n.3 (citing Kyllo, supra). But petitioner does not explain why Cody, the drugdetection dog that sniffed his door, is analogous to a

thermal-imaging device. To the contrary, a dog “is not

a new form of ‘technology’ or a ‘device,’ ” and “the use of

dogs’ acute sense of smell in law enforcement dates

back many centuries.” Jardines, 569 U.S. at 25 (Alito,

J., dissenting). Nor did petitioner present any evidence

below to support the analogy he seeks to draw.

2. Petitioner separately contends (Pet. 22-24) that

the drug-detection team’s entry into the area of the hallway outside his apartment constituted a search because

it trespassed on the curtilage of his home. The court of

appeals correctly affirmed the district court’s rejection

of that factbound claim on the record in this case.

a. This Court has set forth four factors to inform the

inquiry whether an area is constitutionally protected curtilage: (1) proximity to the home; (2) whether the area is

included within an enclosure surrounding a home; (3) the

nature and uses of the area; and (4) the steps taken by

the resident to protect the area from observation by

people passing by. United States v. Dunn, 480 U.S. 294,

301 (1987). In this case, the lower courts correctly applied

the Dunn factors to the specific facts of this case to find

that the area in front of petitioner’s apartment door is

not curtilage of his apartment.

Although the hallway was within the locked doors to

the main entry of the apartment complex, entrance to

the hallway was in practice “ ‘not restricted . . . in any

way’ because building management ‘routinely’ granted

consent to enter on request.” Pet. App. 13a (quoting id.

at 56a, 58a). The area was “part of a common hallway,

used regularly by other building residents and by building cleaning staff ” in addition to non-resident visitors,

id. at 12a-13a, all of whom “would routinely walk past

[petitioner’s] door on their way to and from the elevators,” id. at 4a. And although the area at issue was close

to his door, the “context” showed petitioner’s lack of a

right to exclude others from it. See id. at 13a-14a. Nor

had petitioner even attempted to signal exclusivity or

control by placing personal possessions in the area. Id.

at 4a.

Contrary to petitioner’s contention (Pet. 23), the decision below does not conflict with this Court’s decisions

in Jardines and Collins v. Virginia, 584 U.S. 586 (2018),

neither of which addressed the constitutional status of

an apartment building’s common areas. As the court of

appeals observed, the defendant in Jardines, “as the

owner of the property, had a right to exclude others from

his front porch,” whereas petitioner had no such right

to exclude others from the common hallway outside his

apartment. Pet. App. 16a n.7. Similarly, Collins, which

the court of appeals noted, id. at 11a, addressed a partially enclosed driveway abutting a house, Collins, 584

U.S. at 593-594, not the common area of an apartment

building. Neither case conflicts with the court of appeals’

limited finding pursuant to Dunn that, “on the facts as

found by the district court and disputed by neither

party, the police did not intrude on Fourth Amendmentprotected curtilage when they conducted a dog sniff in

the common hallway just outside [petitioner’s] apartment door.” Pet. App. 17a.

3. Petitioner contends (Pet. 11-18) that lower courts

have divided on both issues that he has raised. But petitioner identifies only a shallow conflict on the reasonableexpectation-of-privacy issue, and no conflict at all on the

factbound curtilage issue. Neither issue warrants further

review in this case.

As to a reasonable expectation of privacy, petitioner

contends (Pet. 12-15) that the decision below conflicts

with two decisions by other circuits holding that a drugdetection dog’s sniff outside an apartment door infringed

an apartment dweller’s reasonable expectation of privacy. See United States v. Thomas, 757 F.2d 1359 (2d

Cir. 1985), cert. denied, 474 U.S. 819 (1985), and 479

U.S. 818 (1986); United States v. Whitaker, 820 F.3d 849

(7th Cir. 2016). But as petitioner acknowledges, the fortyyear-old Second Circuit case on which he relies, Thomas,

has been subject to “criticism,” Pet. 14, and the Second

Circuit has recently “declin[ed] to extend it” in recognition that its analysis “has fallen out of favor,” United

States v. McKenzie, 13 F.4th 223, 233 (2021), cert. denied,

142 S. Ct. 2766 (2022). Similarly, the Seventh Circuit has

recently “distinguished” and declined to “extend” the decision of that court, Whitaker, on which petitioner relies.

United States v. Lewis, 38 F.4th 527, 533, 535 (2022),

cert. denied, 143 S. Ct. 2499 (2023).

On the curtilage issue, petitioner contends (Pet. 14-15)

that the decision below conflicts with two state-court decisions finding that an area outside an apartment door was

curtilage. But neither of those decisions addressed facts

analogous to this case. In each of those state cases, the defendant lived on the top floor of a small apartment building and shared a landing with a small number of other

tenants. See State v. Rendon, 477 S.W.3d 805, 806-807

(Tex. Crim. App. 2015) (defendant lived on second floor

of four-unit building); People v. Bonilla, 120 N.E.3d 930,

932 (Ill. 2018) (defendant lived on third floor of 12-unit

building), cert. denied, 589 U.S. 916 (2019). Thus, the areas at issue in those cases were “semi-private,” Rendon,

477 S.W.3d at 810, and effectively “not open to the general public,” Bonilla, 120 N.E.3d at 936 (deeming case

materially similar to previous case with such a finding).

In this case, in contrast, the Greenwich Place apartment complex housed “well over 100 separate apartments,” C.A. App. 363, and entrance to the building’s common areas was effectively “not restricted to residents in

any way,” Pet. App. 58a. Petitioner’s apartment was located on a long hallway serving numerous units, close to

the common elevator and stairwell, and the area at issue

was frequented by other tenants, non-resident visitors,

and the building’s cleaning staff. See pp. 14-16, supra.

Given those facts, it is far from clear that any court

would conclude that the area outside petitioner’s apartment door constitutes curtilage. Instead, the state-court

decisions on which he relies are expressly factbound.

See Bonilla, 120 N.E.3d at 933 (“Obviously, our legal

analysis on a motion to suppress is heavily dependent

on the specific facts of each case”); Rendon, 477 S.W.3d

at 810 (“We * * * narrowly hold that the curtilage extended to appellee’s front-door threshold located in a

semi-private upstairs landing”).

Conversely, the court of appeals in this case recognized that “[m]ulti-dwelling units come in all kinds of

configurations” and therefore took care to limit its holding to “the facts as found by the district court and disputed by neither party.” Pet. App. 16a-17a. No further

review of the factbound curtilage determination in this

case is warranted. See Sup. Ct. R. 10; United States v.

Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a

[writ of ] certiorari to review evidence and discuss specific

facts.”); see also Kyles v. Whitley, 514 U.S. 419, 456-457

(1995) (Scalia, J., dissenting) (“[U]nder what we have

called the ‘two-court rule,’ the policy [in Johnston] has

been applied with particular rigor when district court

and court of appeals are in agreement as to what conclusion the record requires.”) (citing Graver Tank &

Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 275 (1949)).

4. At all events, this case would be an unsuitable vehicle to address the question presented because petitioner’s

challenge to the denial of his suppression motion independently fails on two alternative grounds advanced by

the government below but not addressed by the court of

appeals. See Dandridge v. Williams, 397 U.S. 471, 475 n.6

(1970) (prevailing party may rely on any ground to support the judgment, even if not considered below); Gov’t

C.A. Br. 36-39. This Court does not grant a writ of certiorari to “decide abstract questions of law * * * which,

if decided either way, affect no right” of the parties. Supervisors v. Stanley, 105 U.S. 305, 311 (1882); see Herb

v. Pitcairn, 324 U.S. 117, 126 (1945) (“[O]ur power is to

correct wrong judgments, not to revise opinions.”).

a. First, suppression of the evidence resulting from

the dog sniff outside petitioner’s apartment door is unwarranted under the good-faith exception to the exclusionary rule.

The exclusionary rule is a “judicially created remedy

designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Leon,

468 U.S. 897, 906 (1984) (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). This Court has emphasized,

however, that suppression is an “extreme sanction,” id. at

916, recognizing that the “exclusion of relevant incriminating evidence always entails” “grave” societal costs,

Hudson v. Michigan, 547 U.S. 586, 595 (2006). Most obviously, it allows “guilty and possibly dangerous defendants [to] go free—something that ‘offends basic concepts

of the criminal justice system.’ ” Herring v. United States,

555 U.S. 135, 141 (2009) (quoting Leon, 468 U.S. at 908).

This Court has accordingly held that, “[t]o trigger the

exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and

sufficiently culpable that such deterrence is worth the

price paid by the justice system.” Herring, 555 U.S. at

144. Suppression may be warranted “[w]hen the police

exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights.” Davis v. United

States, 564 U.S. 229, 238 (2011) (quoting Herring, 555 U.S.

at 144). “But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, * * *

the deterrence rationale loses much of its force, and exclusion cannot pay its way.” Ibid. (citation and internal

quotation marks omitted). Reliance on “binding appellate

precedent” can establish the applicability of the goodfaith exception. Id. at 241.

As the government argued in the court of appeals,

those principles confirm that suppression would not be appropriate here even if a Fourth Amendment violation occurred. Gov’t C.A. Br. 40-43. As petitioner acknowledges

(Pet. 15-16), well before the Maryland state officers conducted the dog sniff in this case, the Court of Appeals

of Maryland—that State’s highest court—had held that

“a sniff of an apartment door from a common area is a

permissible non-search under the Fourth Amendment.”

Fitzgerald v. State, 864 A.2d 1006, 1007 (2004). And Maryland’s intermediate appellate court had reached the same

conclusion following Jardines. See Lindsey v. State, 127

A.3d 627, 641-644 (Md. Ct. Spec. App. 2015), cert. denied, 135 A.3d 417 (Md. 2016); accord United States v.

Makell, 721 Fed. Appx. 307 (4th Cir.) (per curiam) (nonprecedential decision reaching the same result), cert.

denied, 586 U.S. 1051 (2018).

It was reasonable for the Maryland officers who conducted the dog sniff outside petitioner’s apartment door

to rely on the Maryland courts’ “binding appellate precedent specifically authoriz[ing]” that “particular police

practice.” Davis, 564 U.S. at 241. Petitioner cannot show

that the officers exhibited anything approaching the “ ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for

Fourth Amendment rights” that is required to justify

the high costs of suppressing evidence of petitioner’s

crimes. Id. at 238 (citation omitted).

b. Second, even if petitioner were to prevail in his

challenge to the dog sniff, the warrant application would

have established probable cause to search petitioner’s

apartment without the results of that sniff. Gov’t C.A. Br.

36-39. The inclusion of illegally obtained evidence in the

warrant affidavit would invalidate the warrant only “if

it proved to be critical to establishing probable cause for

the issuance of the warrant.” United States v. Karo, 468

U.S. 705, 719 (1984). If, on the other hand, “sufficient untainted evidence was presented in the warrant affidavit

to establish probable cause, the warrant was nevertheless valid.” Ibid.

The information in the warrant affidavit established

probable cause to search petitioner’s apartment even

without the canine sniff. The affidavit recounted the extensive wiretap investigation and physical surveillance

that led the task force officers to Apartment 201. See

pp. 3-7, supra. Investigators twice observed Philander

Spruill, a known drug trafficker, travel to the Greenwich

Place apartment complex shortly after he was intercepted, on the wiretap, informing a potential drug purchaser that he was on his way to obtain drugs from his

supplier. Pet. App. 92a-101a.

In both instances, after returning to his residence,

Spruill was intercepted on the wiretap arranging to sell

the drugs to the would-be purchasers. Pet. App. 92a101a. In one of those instances, Spruill was observed

giving the drug purchaser a grocery bag containing

items used to cut and package drugs for street-level

sales, which appeared to contain fentanyl residue. Id.

at 95a-96a. In the other instance, Spruill was heard

mixing the drugs in the background of the call while

commenting that they were being prepared at that moment. Id. at 100a.

Physical surveillance and GPS tracking data revealed

that Spruill visited Greenwich Place at least four more

times in July and August 2019. Pet. App. 103a-104a. In

the same period, investigators observed petitioner and

a woman visit Spruill at his residence. Id. at 101a-102a.

They determined that the car was registered to Latrice

Campbell, and found traffic-stop records showing that

petitioner had repeatedly been the driver of that car. Id.

at 102a. And they learned from Greenwich Place’s management that Campbell was the lessee of Apartment

201. Id. at 103a.

The affidavit also described petitioner’s extensive

criminal history, which included multiple convictions for

drug trafficking, Pet. App. 88a, and explained that it is

common for drug traffickers to conceal contraband, drug

proceeds, and records of drug transactions at their residences and residences of their relatives and associates,

id. at 105a-106a. Thus, even without the results of the dog

sniff, the information in the warrant application established probable cause to believe petitioner was selling

drugs out of his apartment. See Karo, 468 U.S. at 719.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.