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United States v. Burston

United States Court of Appeals, Eighth Circuit

November 23, 2015

United States of America, Plaintiff - Appellee
v.
Democrus Pernell Burston, Defendant - Appellant

Submitted September 24, 2015

Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids.

For United States of America, Plaintiff - Appellee: Martin Joseph McLaughlin, Anthony R. Morfitt, Mark Tremmel, Assistant U.S. Attorneys, Charles J. Williams, U.S. Attorney's Office, Northern District of Iowa, Cedar Rapids, IA.

Democrus Pernell Burston, Defendant - Appellant, Pro se, Montgomery, AL.

For Democrus Pernell Burston, Defendant - Appellant: Raphael M. Scheetz, Cedar Rapids, IA.

Before MURPHY, MELLOY, and SMITH, Circuit Judges.

OPINION

Page 1124

MELLOY, Circuit Judge.

Appellant Democrus Pernell Burston (Burston) challenges his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Burston contends the district court erred in denying his motion to suppress evidence gathered from a drug-detection dog sniff, a subsequent search of his apartment, and his post-arrest interview. In denying his motion, the district court determined it did not need to decide whether the dog sniff violated the Fourth Amendment as a warrantless search on the curtilage of Burston's home. Instead, the district court held the exclusionary rule did not apply because the officers acted in objectively reasonable reliance on binding circuit precedent. See Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2423-24, 180 L.Ed.2d 285 (2011). Burston argues that the district court erred because the dog sniff occurred six to ten inches from his

Page 1125

apartment window and the Fourth Amendment violation was sufficiently clear to preclude the application of Davis. We agree with Burston's contentions and hold the district court erred in denying Burston's motion to suppress the evidence seized by the police officer's illegal search. Accordingly, we reverse and remand.

I.

On March 13, 2012, Officer John O'Brien (Officer O'Brien) informed Officer Al Fear (Officer Fear), both of the Cedar Rapids Police Department, that there was potential drug use in an apartment in northeast Cedar Rapids. Burston was one of the residents in that apartment. Acting on this information, Officer Fear visited the eight-unit apartment building with his drug-sniffing dog, Marco. Once there, Officer Fear released Marco off-leash to sniff the air alongside the front exterior wall of the west side of the apartment building. There are four exterior apartment doors located on the building's west side, including apartment 4 where Burston resided. His unit had a private entrance and window. A walkway led to his door from a sidewalk, but the walkway did not go directly to (or by) his window. Rather, Burston's window was approximately six feet from the walkway. A bush covered part of his window, and there was a space between the bush and the walkway, which was occupied by his cooking grill. Marco alerted to the presence of drugs six to ten inches from the window of Burston's apartment.

More specifically, Marco sat down next to the private window of Burston's apartment, past the bush that partially covered the window.[1] Officer Fear remained six feet from the apartment. The area where Marco sniffed was not in an enclosed area. Nor was the public physically prevented from entering or looking at that area other than by the physical obstruction of the bush. Both parties presented photos into evidence showing a cooking grill between Burston's door and the space where Marco alerted to the presence of drugs. The photos also show the bush ...


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