Argued April 20, 2015
Appeals from the United States District Court for the Western District of Wisconsin. Nos. 14-cr-00017, 07-cr-00123 Barbara B. Crabb, Judge.
Before Wood, Chief Judge, Hamilton, Circuit Judge, and Darrah, District Judge. [*]
Darrah, District Judge.
Acting on information that drugs were being sold from a certain apartment in Madison, Wisconsin, law enforcement obtained the permission of the apartment property manager and brought a narcotics- detecting dog to the locked, shared hallway of the apartment building. The dog alerted to the presence of drugs at a nearby apartment door and then went to the targeted apartment where Whitaker was residing. After the officers obtained a search warrant, Whitaker was arrested and charged with drug and firearm crimes based on evidence found in the apartment. At the time of his arrest, Whitaker was serving a term of supervised release in Case No. 07-cr-123, a conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After the district court denied his pretrial motions challenging the search and the dog's reliability, Whitaker entered a conditional guilty plea that preserved his right to appeal the district court's ruling.
On appeal, Whitaker raises four issues. First, he argues the use of the dog was a search under the Fourth Amendment and Florida v. Jardines, 133 S.Ct. 1409 (2013). Second, he contends that the district court should have granted him a Franks hearing because there was a material omission in the affidavit used to obtain the search warrant. Third, Whitaker claims that the dog's training records should have been turned over to him, pursuant to Florida v. Harris, 133 S.Ct. 1050 (2013). Finally, he argues his term of supervised release had expired and he should not have been sentenced after revocation. For the reasons discussed below, we reverse the district court's holding regarding the search. The remaining issues are therefore moot.
In October 2013, Dane County Sheriff's Deputy Joel Wagner met with a confidential informant about drug dealing at 6902 Stockbridge Drive, Apartment 204, in Madison, Wisconsin. The informant told Wagner that "Javari" lived in Apartment 204, drove a black Cadillac Escalade and carried a handgun in his waistband. The informant reported seeing Javari and another individual selling drugs in the apartment.
On October 14, 2013, Wagner met with the property manager for 6902 Stockbridge Drive and learned that Apartment 204 was leased to Ruthie Whitaker. The property manager took Wagner to the underground parking garage, where Wagner observed a black Cadillac Escalade in the parking stall for Apartment 204. The license plate showed that the Escalade was registered to Ruthie Whitaker.
Over a month later, on November 25, 2013, the same informant sent Wagner a text message. The text message indicated that one of the individuals dealing drugs contacted the informant and told the informant that the individual was back in town and was at the apartment with a lot of "h." The informant knew "h" to mean heroin. On December 4, 2013, the property manager signed a consent form, authorizing a K9 search of 6902 Stockbridge Drive. On December 17, 2013, Wagner received an anonymous complaint concerning drug activity at 6902 Stockbridge Drive. The anonymous informant did not specifically mention Apartment 204 but indicated that the person who was selling out of 6902 Stockbridge Drive drove a black Cadillac Escalade.
On January 7, 2014, Wagner and Deputy Jay O'Neil, with his drug-sniffing K9 partner, "Hunter, " went to 6902 Stock-bridge Drive. Hunter first alerted on the Escalade parked in the space for Apartment 204. Upon a later search of the Escalade, no drugs were found.
The officers took Hunter to the second floor of the apartment building and into its locked hallway, where there were at least six to eight apartments. According to his police report (produced during discovery), O'Neil took Hunter on a quick walk through the hallway in order to get used to any people or animal smells. During the first pass, Hunter showed extreme interest in Apartment 204 but did not alert. Hunter then alerted to the presence of drugs at the door of nearby Apartment 208. Wagner told O'Neil that it was not the targeted apartment. On a secondary sniff, Hunter alerted on Apartment 204.
After obtaining the search warrant, the officers recovered cocaine, heroin, and marijuana in Apartment 204. Whitaker was the sole occupant at the time the warrant was executed, and, in a post-arrest interview, he admitted he lived there. He also told officers about a handgun in his apartment and consented to the officers' re-entry to retrieve it.
On April 11, 2014, Whitaker filed a motion to suppress the evidence seized during the search. He also requested a Franks hearing and the production of Hunter's training records. On May 19, 2014, the magistrate judge issued a Report and Recommendation, recommending that Whitaker's motions be denied. On June 16, 2014, the district court adopted the Report and Recommendation. On October 9, 2014, Whitaker was sentenced to consecutive terms of 12 months' imprisonment on Count 1, possession with intent to distribute heroin and cocaine, and 60 months' imprisonment on Count 3, use of a firearm in furtherance of a drug trafficking crime. On November 14, 2014, the district court revoked Whitaker's supervised release in ...