[00:00:00] Speaker 03:
Last case for this morning is United States versus Nemeth, 24-8049.

[00:00:09] Speaker 03:
Council for Appellant, if you'd make your appearance and proceed, please.

[00:00:16] Speaker 04:
May it please the Court, I'm John Gravelius on behalf of James Nemeth.

[00:00:21] Speaker 04:
Your Honors, we're here today to talk about an issue of first impression.

[00:00:25] Speaker 04:
Whether a dog sniff of a dwelling constitutes a search under the Fourth Amendment,

[00:00:30] Speaker 04:
even if that dog is sniffing outside that dwelling from a lawful vantage point.

[00:00:35] Speaker 04:
Now the Supreme Court's historical treatment of dwellings as receiving the most protection the Fourth Amendment provides should compel this Court to conclude that yes, a dog sniff of a dwelling is a search because it reveals information about the details of that dwelling that only a physical entry would otherwise uncover.

[00:00:55] Speaker 02:
For you to prevail,

[00:00:57] Speaker 02:
Don't we have to agree with you that the record supports that this dog was capable of detecting lawful activity inside the motel room?

[00:01:08] Speaker 04:
I don't believe this court has to agree with me on that basis.

[00:01:11] Speaker 04:
Certainly if it does, I should prevail.

[00:01:12] Speaker 04:
But I believe that no matter what, even a dog that can only detect contraband is nonetheless performing a search on a dwelling when it sniffs.

[00:01:23] Speaker 02:
And what authority supports that?

[00:01:25] Speaker 04:
Well, Your Honor, I cite specifically affirmative authority in the Whitaker decision in the Seventh Circuit.

[00:01:31] Speaker 04:
And I believe also this flows directly from Kylo.

[00:01:34] Speaker 02:
So Whitaker seems to be a case you would want us to kind of copy and paste.

[00:01:39] Speaker 02:
That's the analysis you're advocating, right?

[00:01:43] Speaker 02:
For the most part, correct.

[00:01:44] Speaker 02:
But it relies on Justice Kagan's concurrence in Jardine's, right?

[00:01:49] Speaker 04:
That is correct.

[00:01:50] Speaker 02:
So what do we do with that?

[00:01:52] Speaker 04:
Well, Your Honor, it does rely on a concurrence, but that concurrence is correctly reasoned, and it isn't contradicted by any Supreme Court precedent, or certainly any precedent in this circuit for that matter.

[00:02:05] Speaker 04:
The Hardenas majority, if I'm saying that case correctly.

[00:02:09] Speaker 02:
I may be mispronouncing it.

[00:02:11] Speaker 04:
I don't know.

[00:02:12] Speaker 04:
But noted that this is an open question, and it's not just that they said that.

[00:02:17] Speaker 04:
It's that they did not respond to the concurring opinions

[00:02:21] Speaker 04:
assertion, frankly, that Kylo compels us and that cabayas in place are simply limited to the facts and circumstances of those cases.

[00:02:29] Speaker 04:
And yet the majority says absolutely nothing in response to that.

[00:02:32] Speaker 04:
And that's telling.

[00:02:34] Speaker 03:
Let me just deal with one threshold issue.

[00:02:38] Speaker 03:
You use the words search of a dwelling.

[00:02:42] Speaker 03:
Whether it is a search of a dwelling, the dog sniffed.

[00:02:45] Speaker 03:
The dog wasn't in the dwelling.

[00:02:47] Speaker 03:
The dog was outside.

[00:02:49] Speaker 03:
I have some concern when I go back and look at the district court's analysis that it was focusing on whether there was a reasonable expectation of privacy in the hallway and what

[00:03:05] Speaker 03:
particularly troubles me is when I look at the defendant suppression motion, there is good reason for the district court to have been focusing on the hallway because the defendant suppression motion focused on the hallway.

[00:03:19] Speaker 03:
In fact, its last statement is to the effect of hallway door is what it uses.

[00:03:27] Speaker 03:
Whether there was a reasonable expectation of privacy relative to the hallway door.

[00:03:32] Speaker 03:
Well, it seems to me that your argument here is different than the argument that was raised before the district court.

[00:03:39] Speaker 03:
And if that's true, then I'm a little troubled by whether you preserved that argument.

[00:03:46] Speaker 04:
Well, Your Honor, certainly the government hasn't contested preservation, and for good reason, because in that motion, we argued several different theories as to why this is an unconstitutional search.

[00:03:56] Speaker 04:
One of them is the one I'm talking about today, which is Kylo and Whitaker.

[00:03:59] Speaker 03:
And no, you used Kylo, and you talked about Whitaker, but that is...

[00:04:04] Speaker 03:
But when you summed up what your focus was, it was the hallway door.

[00:04:09] Speaker 03:
That is very different than what you're saying on appeal, where you say that in your brief, to be clear, Mr. Nemeth is not asserting law enforcement performed an unlawful search of the hallway, but rather of his room.

[00:04:24] Speaker 03:
There is no sentence in your brief below that says that.

[00:04:29] Speaker 03:
Is there?

[00:04:30] Speaker 04:
Your Honor, I can't speak to that specific literal sentence being in that motion, but the motion clearly advocates for a cats-based analysis.

[00:04:39] Speaker 04:
on the sniff of the room itself using the hardiness rationale that I'm advocating today.

[00:04:45] Speaker 03:
Isn't there a distinction with the difference between what you're advocating today in an argument involving the sniff of a hallway?

[00:04:53] Speaker 03:
Because there, as you acknowledge, you know, a common hallway, there would be differences of whether there is some reasonable expectation of privacy.

[00:05:01] Speaker 03:
But the whole analysis changes over whether you're talking about a search of a hallway or whether, as you said today, the search relates to the dwelling itself.

[00:05:14] Speaker 04:
Well, again, Your Honor, I mean, I believe that in that motion we did lay out the Whitaker test, which does, well, it's the same analysis that I'm advocating today.

[00:05:25] Speaker 04:
Even though police are in a lawful space, so to speak, it's still a search because they're still gathering information about the inside of the dwelling.

[00:05:34] Speaker 04:
And I do believe that was in the motion and properly before the court.

[00:05:37] Speaker 04:
And the court essentially disagreed with us and said, no, this analysis doesn't apply.

[00:05:42] Speaker 04:
Also, the court also ruled against us on the whole idea that the dwelling in a hotel room are essentially different under a Fourth Amendment reasonable expectation of privacy weight.

[00:05:54] Speaker 03:
Well, when you look at the district court's analysis, it didn't appear to disagree with you.

[00:05:58] Speaker 03:
It appeared to be talking about something different than what you're talking about now.

[00:06:02] Speaker 03:
That's what gives me pause.

[00:06:04] Speaker 03:
The district court was talking about the hallway.

[00:06:06] Speaker 03:
That's all it talked about.

[00:06:07] Speaker 03:
It didn't talk about how the hallway related to what was in the room.

[00:06:10] Speaker 03:
It didn't talk about any of that stuff.

[00:06:12] Speaker 03:
It talked about the hallway.

[00:06:13] Speaker 03:
I'll let you go on, but it seems to me that there's a concern here, albeit the government didn't raise any waiver concerns of its own.

[00:06:22] Speaker 03:
So please proceed.

[00:06:23] Speaker 04:
Well, OK, Your Honor, with that.

[00:06:25] Speaker 04:
But the same logic that we are talking about with Kylo and Whitaker would apply here.

[00:06:32] Speaker 04:
As I just mentioned, the district court made this point.

[00:06:35] Speaker 04:
The government, I don't think, does so explicitly in that the protection someone receives in their hotel room is the same protection that you would receive as an apartment tenant, as a homeowner.

[00:06:48] Speaker 04:
And again, I don't hear the government

[00:06:50] Speaker 04:
seriously contesting that, but that analysis would apply equally here.

[00:06:54] Speaker 01:
In Kylo, there was a physical intrusion into the home, wasn't there?

[00:07:01] Speaker 01:
Pardon?

[00:07:01] Speaker 01:
Wasn't there a physical intrusion into the home?

[00:07:04] Speaker 04:
In Kylo?

[00:07:05] Speaker 04:
Yeah.

[00:07:05] Speaker 04:
No, Your Honor, there was not.

[00:07:06] Speaker 01:
Well, I mean, the thermal imaging, right?

[00:07:09] Speaker 01:
Well, no, Your Honor.

[00:07:10] Speaker 04:
So there's a discussion in there, and it's actually at pages 35 and 36 where they distinguish between what they call off-the-wall surveillance and through-the-wall surveillance.

[00:07:20] Speaker 04:
And I believe Your Honor would be referring to through the wall surveillance, where you have what we have in the cartoons is like x-ray vision, and you're actually seeing through.

[00:07:28] Speaker 04:
That's not what was at issue in Kylo, and they discussed that.

[00:07:30] Speaker 04:
What it was measuring was thermal radiation or heat leaking from the surface of the building.

[00:07:36] Speaker 04:
And that allowed them, with this technology, to sort of make inferences, albeit very crude inferences.

[00:07:42] Speaker 04:
But the court said, nonetheless, even though

[00:07:47] Speaker 04:
We can't necessarily always gather intimate details.

[00:07:50] Speaker 04:
It's all details that matter under the Fourth Amendment.

[00:07:53] Speaker 01:
Here there wasn't anything they were gathering, though, from inside the residence.

[00:07:57] Speaker 01:
This was a dog sniff of the air basically underneath the door.

[00:08:02] Speaker 01:
It was a scent.

[00:08:04] Speaker 01:
And there was no technology used to gather it.

[00:08:07] Speaker 01:
Is that distinguishable then?

[00:08:08] Speaker 04:
Well, Your Honor, I guess I disagree with the premises there.

[00:08:11] Speaker 04:
First of all, there is technology.

[00:08:13] Speaker 04:
This is sense enhancing technology, not in public use or common use.

[00:08:17] Speaker 04:
That was never disputed.

[00:08:18] Speaker 04:
And I certainly think that, just as we know, most common citizens don't have highly trained narcotics dogs on leash.

[00:08:27] Speaker 04:
But also, just as in Kylo, it is emanating from, this is basically another through or off the wall type of surveillance that the dog is getting.

[00:08:37] Speaker 04:
Yeah, the dog's not literally inside, sniffing the air inside, but these

[00:08:42] Speaker 04:
this is coming out, and it's only detectable through this sense-enhancing technology that only, apparently, police have.

[00:08:49] Speaker 02:
Well, it seems that Justice Kagan's reading of Kylo emphasized this language that I think helps your position, but the language is obtaining by sense-enhancing technology any information regarding the home's interior.

[00:09:08] Speaker 02:
But later,

[00:09:09] Speaker 02:
In Cabayas, the Supreme Court talked about Kylo, but still focused on the fact that the thermal imaging uncovered only lawful activity.

[00:09:19] Speaker 02:
And that's where I'm not yet persuaded, still studying, but maybe you could help me with, why we should rely on Justice Kagan's concurrence in light of what Cabayas said about Kylo.

[00:09:36] Speaker 04:
Sure, Your Honor.

[00:09:37] Speaker 04:
Well, I think to read Khabayas is foreclosing the argument I'm making today.

[00:09:42] Speaker 04:
To read it to say that the court was affirmatively stating that under no circumstances would a dog sniff be a search, I think would be to over-read it for several reasons.

[00:09:52] Speaker 04:
And first of all, as the majority in Khabayas specifically noted, this was a car search case.

[00:09:58] Speaker 04:
after the very sentence your honor identifies, the majority goes back and says, well, Kylo is distinguishable because a sniff of, or a non-detection of contraband in the trunk of a car is different than Kylo.

[00:10:13] Speaker 04:
Next sentence, a dog sniffed during a conceitedly lawful traffic stop that reveals no other information other than the location of a substance is, you know, it's distinguishable from Kylo, but again,

[00:10:24] Speaker 04:
This is tying it back to the specific circumstances of the case.

[00:10:28] Speaker 04:
And I would think that if Cabayas were actually establishing this broad rule that SNFs are never searches or that you don't ever have this reasonable expectation of privacy in your home, I would think they would say a lot more than just that.

[00:10:42] Speaker 04:
I mean, if you look at Kylo itself, they discuss cases like Arizona v. Hicks where, if your honors recall, there's a search in an apartment where officers are allowed to be.

[00:10:54] Speaker 04:
They go in and they see that there's what looks to be a stolen stereo, and they simply just pick up this turntable and look.

[00:10:59] Speaker 04:
And that search did nothing more than confirm or maybe dispel that that was contraband, that is, a stolen stereo.

[00:11:07] Speaker 04:
However, that de minimis search was nonetheless a search of the apartment, in that it's the details of that apartment that are sacrosanct.

[00:11:15] Speaker 04:
And so I would think, again.

[00:11:17] Speaker 02:
And you're not focused on their having to be unlawful.

[00:11:20] Speaker 04:
Correct.

[00:11:21] Speaker 02:
It's any.

[00:11:22] Speaker 02:
It's any details.

[00:11:22] Speaker 02:
You're relying on that language of any.

[00:11:24] Speaker 04:
Yes, Your Honor.

[00:11:25] Speaker 04:
And then certainly, as I've talked about with Hardinus, I think that the majority would have had more to say about Tobias, given that the concurrence was so, well, obviously unambiguously asserting that Tobias just simply did not control.

[00:11:41] Speaker 04:
And the majority said absolutely nothing about that.

[00:11:44] Speaker 04:
And then certainly, again, we do have Whitaker, which supports my argument as well.

[00:11:49] Speaker 04:
And adding, frankly, another layer that we talked about earlier in that this hallway, it's not curtailage, but there is some sort of understanding that in a hotel,

[00:12:01] Speaker 04:
you're going to have certain types of behaviors that you're not going to have on a public street.

[00:12:04] Speaker 04:
So it's a little bit different in that regard, too.

[00:12:06] Speaker 01:
But it is public airspace, right?

[00:12:08] Speaker 01:
I mean, in the same sense of the Morales case, we said that an odor emanating from a car is emanating into public airspace, and you don't have any reasonable expectation of privacy in public airspace.

[00:12:20] Speaker 01:
I'm not quite sure how I see that as different from a public hallway in a motel.

[00:12:25] Speaker 04:
Well, Your Honor, I'm not.

[00:12:26] Speaker 01:
What's your reasonable expectation of privacy?

[00:12:28] Speaker 01:
Well, Your Honor, I'm not... In an odor emanating from your room.

[00:12:32] Speaker 04:
Well, it would be the same, Your Honor, as the thermal radiation emanating into public airspace in Kylo.

[00:12:38] Speaker 04:
There's no question that that was emanating into public airspace.

[00:12:41] Speaker 04:
The police were actually stationed on a public street when they measured it.

[00:12:45] Speaker 04:
And so under that theory, Mr. Kylo would have lost, clearly.

[00:12:50] Speaker 04:
But it's when we have sense-enhancing technology that allows police, and only that technology that allows police to

[00:12:57] Speaker 04:
discover this information.

[00:13:00] Speaker 02:
I have a question about the record and it kind of ties back to the first question that I asked you.

[00:13:05] Speaker 02:
What is your position on what the record establishes, either because there is a fact or there is something that wasn't challenged as clearly erroneous about whether the dog could uncover only contraband?

[00:13:21] Speaker 04:
Well, that was brought up, as a matter of fact, and resolved in the sense that the tads, it was trained on tads, wafers that emanate, I believe they emanate the smell of fentanyl, but they are not fentanyl, they're not contraband.

[00:13:34] Speaker 04:
And I think it was uncontested and agreed upon below that the dog was in fact trained on those and could alert to TADS these wafers.

[00:13:43] Speaker 02:
Well, I guess my question goes to, if we're understanding the dog as the quote-unquote device that's relevant to the cat's question here, is this a device that's capable of detecting only contraband, or is this a device that's capable of detecting contraband and lawful activity?

[00:13:59] Speaker 02:
Well, yes.

[00:13:59] Speaker 02:
Based on what the record shows.

[00:14:01] Speaker 04:
From what the record shows, I believe that we have a device that shows both.

[00:14:05] Speaker 04:
And that's my secondary argument in my briefs.

[00:14:07] Speaker 04:
Certainly my primary argument is we don't even need to get to that question.

[00:14:11] Speaker 02:
Because of the home.

[00:14:12] Speaker 04:
Because of the home.

[00:14:14] Speaker 04:
But certainly that is also my argument, yes.

[00:14:16] Speaker 02:
And my other question is concerning the district court's reliance on Lewis.

[00:14:20] Speaker 02:
That case, the Seventh Circuit's understanding of the reasonable expectation of privacy is different than how our circuit understands the reasonable expectation of privacy in a motel room, right?

[00:14:33] Speaker 04:
I believe it does for hotel rooms, yes.

[00:14:35] Speaker 02:
For hotel rooms.

[00:14:36] Speaker 02:
So it's sort of premised on law that's even contra to our understanding of motel rooms are more like homes in the Tenth Circuit.

[00:14:44] Speaker 04:
Absolutely correct, Your Honor.

[00:14:46] Speaker 03:
Let me understand your first

[00:14:48] Speaker 03:
line of discussion with Judge Rossman.

[00:14:53] Speaker 03:
Are you saying that the dog could detect something that is not contraband?

[00:14:56] Speaker 03:
And if that is so, how do we square that with the Supreme Court precedent that turns search or no search on the fact that a dog sniff can only detect contraband or not?

[00:15:07] Speaker 04:
Well, yes, Your Honor, I am asserting that the dog also is trained on non-contraband.

[00:15:13] Speaker 04:
in my argument in the briefs and it's my position again today that that being the case, cabias in place are just distinguishable and then it would be a search certainly under that rationale.

[00:15:24] Speaker 03:
Well, how are they distinguishable when the Supreme Court has said that that is the essence of a dog search?

[00:15:30] Speaker 03:
It's not like we're in a position to overrule the Supreme Court on what the character of your dog search is, right?

[00:15:36] Speaker 04:
Well, I'm not asking the court to overrule the Supreme Court.

[00:15:38] Speaker 04:
That's simply a factual question on whether the device in question is what its capabilities are.

[00:15:43] Speaker 04:
And in this particular case, it's a factual matter that was resolved that, yeah, the dog was trained on TADS.

[00:15:50] Speaker 03:
This particular dog?

[00:15:51] Speaker 04:
Correct.

[00:15:52] Speaker 04:
I'm not asking the court to make any judgment about canines in general.

[00:15:56] Speaker 04:
I see my time is up.

[00:15:58] Speaker 04:
Thank you.

[00:16:13] Speaker 00:
May it please the court.

[00:16:14] Speaker 00:
My name is Mackenzie Morrison and I'm here today on behalf of the United States.

[00:16:19] Speaker 00:
I will spend or start at least at the primary argument that the your honors had questions about an appellant's argument.

[00:16:27] Speaker 00:
That being that officers acted lawfully when they conducted the sniff in the motel hallway.

[00:16:32] Speaker 00:
because it was not a search of the inside of the motel room and Nemeth did not have a reasonable expectation of privacy outside of that hotel room.

[00:16:43] Speaker 02:
I thought that the government's position didn't have anything to do with that.

[00:16:46] Speaker 02:
That was the district court argument.

[00:16:47] Speaker 02:
But on appeal, you say the question is whether a sniff of the open air space outside a motel room

[00:16:53] Speaker 02:
violates the occupant's reasonable expectation of privacy within that room.

[00:16:57] Speaker 02:
So to the extent there was another argument available that would have reprised your defense or your affirmative position in the district court, you don't do that on appeal.

[00:17:06] Speaker 02:
You're focused on the room.

[00:17:07] Speaker 00:
Yes, yes, Your Honor, that is correct.

[00:17:10] Speaker 00:
However, it is noteworthy that the reasonable expectation of privacy in the hallway is part of the analysis on why it can't be a search of the inside of the hotel room, as we see in the cases that we've been talking about, Place, Cabayas, and Kylo.

[00:17:26] Speaker 00:
But of course, the starting point for us is to break apart the two different approaches under the Fourth Amendment searches, property-based approach, Florida v. Hardin's,

[00:17:36] Speaker 00:
and the privacy-based approach.

[00:17:38] Speaker 00:
We have the starting point of Katz and Kylo, and we get into Kabyas and Place.

[00:17:43] Speaker 00:
It is important to note because Nemeth has conceded any property-based approach.

[00:17:49] Speaker 00:
So we're not talking about Hardin's.

[00:17:51] Speaker 00:
We're in the world of Kylo, if you will, or Katz.

[00:17:55] Speaker 02:
Well, we're not.

[00:17:56] Speaker 02:
I mean, just because he's conceded or has not challenged on appeal the property-based approach, there is very much a question about Justice Kagan's concurrence in that case.

[00:18:03] Speaker 02:
Do you agree?

[00:18:05] Speaker 00:
I agree in the sense that it is a concurring opinion and not binding precedent for this court, and would actually point the court to the precedent in Brightline Fourth Amendment law.

[00:18:19] Speaker 00:
But it is important to break apart the property-based approach from the privacy-based, because again, he has conceded that law enforcement could lawfully be in that hotel.

[00:18:29] Speaker 00:
So property-based approach is not for this court.

[00:18:32] Speaker 00:
We are under the privacy-based approach, which in Kylo was the thermal imager case.

[00:18:38] Speaker 00:
Now, the important point in that case is that the court was really concerned with what is the information that the law enforcement is getting by use of this device.

[00:18:50] Speaker 00:
Intimate details.

[00:18:51] Speaker 00:
In fact, the court gave an example of a lady of the house taking a bath.

[00:18:56] Speaker 00:
Law enforcement had that information using that device.

[00:19:00] Speaker 00:
That is in contrast with what you get with a sniff of a dog.

[00:19:05] Speaker 03:
Kylo, the language from one, not only is there any information language, which has been talked about that's in Kylo, but Kylo also says, quote, the Fourth Amendment's protection of the home has never been tied to the measurement of the quality or quantity of information obtained.

[00:19:25] Speaker 03:
So the Supreme Court, in fact, in Kylo, is not focused on whether it's someone taking a bath or not.

[00:19:31] Speaker 03:
It's focused on the fact that the home is different.

[00:19:34] Speaker 03:
And although the Supreme Court case law has said the home is different, and if the Supreme Court is not focused on the quality or quantity of the information that is obtained, why wouldn't the defendant's argument that the fact that you can actually intrude into that home, that dwelling,

[00:19:53] Speaker 03:
and get, even if it is contraband, why isn't that a search?

[00:20:00] Speaker 03:
Because the home is different.

[00:20:02] Speaker 03:
Place in Cabalos came out of a different setting, right?

[00:20:06] Speaker 00:
Correct, Your Honor.

[00:20:07] Speaker 00:
However, there is a distinction between a home, an apartment, and a hotel, which is important.

[00:20:14] Speaker 00:
That's a piece of the picture, but not only that.

[00:20:17] Speaker 00:
Hit the pause button.

[00:20:18] Speaker 03:
Why is that important?

[00:20:19] Speaker 03:
I thought our case law, our case law, unlike Lewis, had determined that the fact that you were in an apartment, you have a reasonable expectation, or a hotel room, have a reasonable expectation of privacy in that hotel room.

[00:20:36] Speaker 00:
It is important because of how the analysis works with dog sniffs.

[00:20:41] Speaker 00:
As Judge Moritz pointed out in Moraz Zamora, this court stated, what we're looking at is public airspace emanating out of, in this case, a hotel room.

[00:20:55] Speaker 00:
That is why cabayas in place are important here.

[00:20:59] Speaker 03:
OK, let's try this.

[00:21:02] Speaker 03:
You've got thermal imaging coming out of the home, right?

[00:21:06] Speaker 03:
Okay, emanating from the home.

[00:21:08] Speaker 03:
You've got a dog in the hallway.

[00:21:10] Speaker 03:
You've got odors coming out of the home.

[00:21:14] Speaker 03:
You've got a specialty device, Kylo, the thermal imaging thing.

[00:21:19] Speaker 03:
Here, the dog.

[00:21:20] Speaker 03:
Both instances, they can pick up this stuff that's coming out of the home.

[00:21:24] Speaker 03:
You have Kylo saying the quantity or quality of information in question doesn't matter.

[00:21:30] Speaker 03:
It is a Fourth Amendment violation that you can do anything that penetrates that home and gets something with that special device you would not have if you were not in the home.

[00:21:42] Speaker 03:
Okay, I've mapped it out for me, for you.

[00:21:46] Speaker 03:
Why should not the result be exactly the same?

[00:21:51] Speaker 00:
Because a dog sniff is fundamentally different in kind and degree from a thermal imager.

[00:21:58] Speaker 00:
It does not do what a thermal imager does.

[00:22:01] Speaker 00:
And they're not comparable because they're not the same.

[00:22:03] Speaker 00:
The closest thing you can say, of course, is that dogs have a better sense of smell than us.

[00:22:10] Speaker 00:
but they are not intruding into the home, the scent molecules are emanating out of the hotel room, which is what we see, the discussion of Morales versus Zamora, or Morales-Zamora, excuse me, and also is part of the analysis and cabias in place.

[00:22:25] Speaker 03:
In Kylo, the heat waves are emanating out of the home.

[00:22:30] Speaker 03:
In this instance, you have odors emanating out of the home.

[00:22:34] Speaker 03:
And so we're talking different technology, but they're both specialized technology that allows you to detect something in the home that you would not otherwise be able to do, but for being in the home.

[00:22:48] Speaker 03:
And that is what Kylo says, right?

[00:22:51] Speaker 03:
Yes.

[00:22:52] Speaker 03:
OK.

[00:22:52] Speaker 03:
Well, if Kylo says that, Kylo also says that's a Fourth Amendment violation.

[00:22:57] Speaker 03:
No, Your Honor.

[00:22:57] Speaker 03:
And why is that?

[00:22:59] Speaker 00:
Because a thermal imager, when you look at what you're getting from a thermal imager compared to a dog sniff, they're fundamentally different.

[00:23:06] Speaker 00:
And let's talk about that.

[00:23:07] Speaker 00:
How are they different?

[00:23:10] Speaker 00:
As I discussed, not only in the kind and degree of information.

[00:23:14] Speaker 00:
Because a thermal imager, of course, if you get down to the metaphysical of it,

[00:23:19] Speaker 00:
certainly can't speak to that, you are seeing the details of what is going on inside of that home.

[00:23:24] Speaker 00:
You are entering with the use of that technology into the home for all purposes.

[00:23:30] Speaker 00:
Whereas with a dog sniff, a dog sniff is saying yes to the presence of the smell of controlled substance or contraband, which is emanating into, for all reasons here, public airspace.

[00:23:41] Speaker 01:
It's the reasonable expectation.

[00:23:43] Speaker 01:
Yes.

[00:23:43] Speaker 00:
Yes, Your Honor.

[00:23:44] Speaker 01:
Do you have a reasonable expectation, even though you're in a home or in a motel room, of sense emanating into a public airway?

[00:23:54] Speaker 03:
No.

[00:23:55] Speaker 03:
In the same passage of Kylo that I was quoting from, it says, quote, in the home, our cases show all details.

[00:24:04] Speaker 03:
are intimate details.

[00:24:06] Speaker 03:
All details are intimate details because the entire area is held safe from the prying of government eyes.

[00:24:14] Speaker 03:
So Kylo does not make distinguishing by virtue of thermal imaging and odors.

[00:24:22] Speaker 03:
It says all details are intimate details.

[00:24:25] Speaker 03:
So why isn't that suggesting that the home is just fundamentally different?

[00:24:31] Speaker 00:
Because a thermal imager is

[00:24:34] Speaker 00:
for all purposes, entering that home to get that information.

[00:24:37] Speaker 03:
That is what you do not have with a dog sniff.

[00:24:39] Speaker 03:
That's not the way it was framed in Kylo.

[00:24:41] Speaker 03:
They were talking about the heat waves going out of the home, just as you're talking about odors going out of the home, right?

[00:24:48] Speaker 00:
To the extent of that and nothing further, because you can't get the intimate details of the home.

[00:24:56] Speaker 00:
Now, it is important to note that the analysis is still applicable in placing cabias, although not a home,

[00:25:04] Speaker 00:
The analysis is applicable because we don't see that there's holdings that it was a search of a car, of the inside of a car.

[00:25:12] Speaker 00:
We don't see that it was a search of the inside of the luggage.

[00:25:15] Speaker 00:
This is important because it brings me back to the point of what a dog sniff is.

[00:25:20] Speaker 00:
The molecules, scent molecules emanating from a space where we all agree that officers could lawfully be.

[00:25:28] Speaker 02:
But we don't want to, do we, over read our jurisprudence on dog sniff cases that have been developed in the context of cars and mail and such?

[00:25:39] Speaker 02:
And here we categorically have a home.

[00:25:41] Speaker 02:
I mean, our case law says a motel room is a home for birth amendment purposes.

[00:25:46] Speaker 00:
No, you don't want to over read it, but this conclusion doesn't require over reading it because of how that information is obtained.

[00:25:55] Speaker 00:
And I think it's noteworthy of what this court has said in Morales.

[00:25:59] Speaker 00:
Zamora was that there's no other, they said they couldn't think of any other investigative tool that is so limited in kind and information is obtained because I go back to that kind and degree of what you are getting and how you are getting it.

[00:26:14] Speaker 02:
It doesn't seem to me that the cases are about how you are getting it.

[00:26:17] Speaker 02:
To Chief Judge Holm's point,

[00:26:19] Speaker 02:
The thermal imaging was emanating out and the scent is emanating out.

[00:26:24] Speaker 02:
It seems that the focus is either when we're dealing with the home, it's any information that you can't get without a device.

[00:26:32] Speaker 02:
And the dog sniff cases are sort of focused on the quality of the information.

[00:26:37] Speaker 02:
Dog sniffs are sort of assumed to only detect contraband.

[00:26:41] Speaker 02:
And that's all they can detect.

[00:26:42] Speaker 02:
Yes.

[00:26:44] Speaker 02:
But you don't seem to be making that argument.

[00:26:46] Speaker 02:
You don't seem to be focusing on that.

[00:26:48] Speaker 02:
And that's puzzling to me, because it seems that that would be how those dog sniff cases, at least in my view, would apply here.

[00:26:58] Speaker 02:
Yes, and that point is taken.

[00:26:59] Speaker 02:
But you're not arguing that.

[00:27:01] Speaker 02:
You don't seem to be focused on is it contraband or is it not contraband.

[00:27:06] Speaker 02:
You're not focused on that.

[00:27:08] Speaker 00:
I am in the sense that I

[00:27:09] Speaker 00:
I think it's relevant to this court's analysis in coming to the conclusion that it first wasn't a search of the inside of the hotel room and he had no reasonable expectation of privacy to the air that's coming outside of that hotel room.

[00:27:23] Speaker 00:
Because a sniff

[00:27:25] Speaker 00:
Using that nose is not going into that hotel room It is a scent that is coming out in that motel hallway and the dog is saying yes to contraband and that is a piece of the analysis because as we have discussed all of the cases in cabias in place and that it does take a

[00:27:46] Speaker 00:
part in the analysis of what kind of information is being obtained.

[00:27:50] Speaker 02:
What is your position on what the record shows here?

[00:27:52] Speaker 02:
Is this a dog that was capable of detecting more than contraband?

[00:27:57] Speaker 00:
No, Your Honor.

[00:27:58] Speaker 00:
In fact, the defense expert testified about these tags.

[00:28:03] Speaker 00:
That may be what the court is inquiring about.

[00:28:06] Speaker 00:
In a

[00:28:07] Speaker 00:
actually absorbs the scent of fentanyl.

[00:28:10] Speaker 00:
It is a wafer that is put in a jar, has absorbed the scent of fentanyl, and emits the scent of fentanyl.

[00:28:17] Speaker 00:
This is important because it could be a scent of methamphetamine or one of the other contraband items that the dog is trained on.

[00:28:27] Speaker 00:
The dog does not say yes to quantifiable amounts of controlled substances or contraband.

[00:28:33] Speaker 00:
It says yes to the smell of contraband or

[00:28:36] Speaker 00:
shows probable cause that contraband is where the dog is saying it is.

[00:28:42] Speaker 00:
And that is why we have noted that it's important to point out that the appellant has not raised a reliability issue.

[00:28:49] Speaker 00:
So, the smell of fentanyl is what we are talking about here, which is why it does not impact the analysis.

[00:28:56] Speaker 03:
It's the smell of a contraband substance is what you're saying.

[00:28:59] Speaker 03:
Am I understanding you correctly?

[00:29:00] Speaker 00:
You are correct, Your Honor.

[00:29:09] Speaker 02:
What did Justice Kagan get wrong in her concurrence?

[00:29:15] Speaker 00:
Your Honor, Justice Kagan, concurrence in Hardin's, to clarify, reasoned that apartment residents have a reasonable expectation of privacy in the area outside of their apartment.

[00:29:30] Speaker 00:
The part of the analysis that the United States position is wrong is that

[00:29:38] Speaker 00:
An apartment building, and of course it's a fact specific analysis, has access, and I say building, the area outside of a door, has access to other apartment renters, other guests of the apartments, pizza delivery men, those sorts of actors.

[00:30:00] Speaker 00:
What's important to note, which the Lewis court pointed out, was that an apartment hallway is even further away from a home, or excuse me, a hotel hallway is even further away from a home than an apartment building is.

[00:30:13] Speaker 02:
So we're not going to think Lewis is instructive, right?

[00:30:16] Speaker 02:
Because it's Fourth Amendment law about motel rooms is unlike ours.

[00:30:19] Speaker 00:
Yes, Your Honor.

[00:30:20] Speaker 00:
But Lewis court is certainly persuasive, because they pointed out what Justice Kagan did not say and what the Whitaker court did not say.

[00:30:30] Speaker 00:
was that the apartment outside is curtailage.

[00:30:33] Speaker 00:
It's a very fact-specific analysis.

[00:30:36] Speaker 03:
I'm sorry, go ahead.

[00:30:37] Speaker 00:
And here we're dealing with a hotel hallway, which I would agree with the Lewis Court, is further away from a home than we see with an apartment because of the nature of what goes on in a hotel hallway.

[00:30:48] Speaker 02:
Let's assume that there is no distinction.

[00:30:51] Speaker 02:
There's nothing about the facts in this case that make it not a home.

[00:30:55] Speaker 02:
It's a home under the Fourth Amendment.

[00:30:58] Speaker 02:
How is Justice Kagan's concurrence helpful to the government?

[00:31:05] Speaker 00:
It's helpful in the sense of what we look at when you step outside of the hotel room.

[00:31:11] Speaker 00:
We agree, and I see I'm out of time, if I may.

[00:31:15] Speaker 00:
We agree that once you close that door, Fourth Amendment protections apply.

[00:31:20] Speaker 00:
What is different is when you open that door and the nature of what is happening.

[00:31:28] Speaker 00:
If there are no other questions, we ask that this court affirm.

[00:31:31] Speaker 00:
Thank you.

[00:31:31] Speaker 03:
Thank you, counsel.

[00:31:34] Speaker 03:
Cases submitted.