                                   UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 17-4317


UNITED STATES OF AMERICA,

                   Plaintiff - Appellant,

             v.

TREMAYNE ANTWANE MITCHELL,

                   Defendant - Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Arenda L. Wright Allen, District Judge. (4:16-cr-00083-AWA-LRL-1)


Argued: December 7, 2017                                    Decided: March 28, 2018


Before NIEMEYER and AGEE, Circuit Judges, and Paula XINIS, United States District
Judge for the District of Maryland, sitting by designation.


Reversed and remanded by unpublished opinion. Judge Xinis wrote the opinion, in
which Judge Niemeyer and Judge Agee concur.


ARGUED: Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,
Richmond, Virginia, for Appellant. Nicholas Ryan Hobbs, HOBBS & HARRISON,
PLLC, Hampton, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.




                                            2
XINIS, District Judge:

       The government appeals the district court’s order granting Tremayne Antwane

Mitchell’s motion to suppress evidence seized by police officers during a search of

Mitchell’s apartment. For the reasons stated below, we reverse.

                                             I

       The afternoon of June 27, 2016, 1 police officers Zachary Lyons and Glenn

Marshall were on routine patrol at Pinedale Manor apartments located in Newport News,

Virginia. Pinedale Manor is a two-story garden style apartment complex. The apartment

buildings overlook a common parking lot, with sidewalks running the length of each

apartment building and directly in front of the apartment doors. The complex is not

gated, and the parking lot and sidewalks are openly accessible to members of the public.

Management at Pinedale Manor encouraged Newport News police to patrol the complex

so as to combat the high incidence of drug-related crimes. Officers typically patrolled on

foot and bicycle throughout Pinedale Manor.

       On June 27, 2016 at about 2:49 p.m., Newport News Officers Lyons and Marshall

were on bike patrol at the apartment complex. As Officer Marshall passed in front of

apartment A6, he smelled the strong odor of burning marijuana. Officer Lyons, who was

riding his bicycle on the grassy area between the sidewalk and parking lot, also smelled

marijuana coming from A6. Both officers were trained and experienced in smelling raw

and burnt marijuana.

1
   The district court’s opinion states that these events took place on July 27, 2016.
However, the record reflects that the investigation, executed search warrant, and arrest all
occurred on June 27, 2016.
                                             3
      The officers then spent several minutes investigating the odor’s source by

separately walking the length of the first floor sidewalk and second floor landing of the

apartment building. Each officer noted that the odor was strongest near A6, a street level

apartment with the front door abutting the sidewalk.          Officer Lyons sniffed the

windowsill of A6’s exterior screened window. Officer Marshall also smelled the exterior

doorframe of A6’s front door.      Confident in the odor’s source, Officer Lyons then

knocked on A6’s door.

      When Mitchell opened the door, the officers immediately smelled “a stronger odor

of marijuana come from [inside] the residence.” Officer Lyons informed Mitchell and

the other occupant, Sean Mitchell, 2 that the officers noticed a “problem” with the

apartment window so as to peaceably draw the men outside. Once outside, the officers

informed the men that they had smelled marijuana coming from the apartment. For

officer safety and to guard against potential destruction of evidence, the men were kept

outside, placed in handcuffs, and patted down. The officers asked for consent to search

the apartment for narcotics, and when both men declined, Officer Lyons left to obtain a

search warrant.

      Officer Marshall, joined by another Newport News officer, stayed with the two

men. The officers advised that although the men were not under arrest, they were

detained and not free to leave. During the one-and-a-half hours it took Officer Lyons to

obtain the search warrant, the two men and the officers stayed outside the apartment.

2
  The district court’s opinion repeatedly states that Tremayne Antwane Mitchell and
Sean Mitchell are brothers. They are not. In fact, no record evidence suggests that the
men are related.
                                            4
Officer Lyons affirmed in the affidavit for the search warrant as follows:

       On June 27, 2016, at 1449 hours in the City of Newport News, Officer
       Lyons and Marshall were on bike patrol in the area of 749 Adams Drive.
       Officer Marshall rode past apartment A6 when he detected the odor of
       Marijuana coming from the apartment. When Officer Lyons rode past the
       window of the apartment[,] he also detected the odor of fresh marijuana.
       Both officers made contact with the residence [sic] and had them step out
       of the residence. Once both occupants stepped out Officer Lyons advised
       them of the situation and told them they were both detained for a narcotics
       investigation at 1450 hours. When the door to apartment A6 opened the
       strong odor of marijuana emitted from the apartment.

Based on this application, the local magistrate issued the warrant, finding that probable

cause existed to believe that evidence of        marijuana possession would be found in

apartment A6, in violation of Virginia Code § 18.2-250.1. The execution of the search

warrant revealed three partially burned marijuana cigarettes and a loaded semiautomatic

firearm in Mitchell’s bedroom.       Mitchell was then charged in federal court with

possession of a firearm after having sustained a felony conviction, in violation of 18

U.S.C. § 922(g)(1).

       Mitchell moved to suppress the seized evidence, contending that the officers’

sniffs of the exterior windowsill and door constituted a search in violation of his Fourth

Amendment rights to be free from warrantless searches and seizures.                 Mitchell

alternatively argued that even if the officers’ “sniff” was not a search, the officers lacked

probable cause to believe the Commonwealth’s marijuana statute had been violated

because the same statutory provision exempts marijuana possession for medical purposes.

       At the suppression hearing, Officers Lyons and Marshall testified as to the events

leading up to the search, and the court reviewed body camera footage that largely


                                             5
corroborated the officers’ testimony.       Notably, the suppression hearing focused

exclusively on whether the officers’ sniffing the exterior window and door constituted a

“search” cognizable under the Fourth Amendment. Mitchell had not challenged, and the

district court did not address, the veracity of Lyons’ affidavit submitted in support of the

search warrant.

       In a written opinion issued after the hearing, the district court granted Mitchell’s

motion to suppress, finding that the officers’ sniffing the exterior window frame and

doorjamb constituted a warrantless search in violation of Mitchell’s Fourth Amendment

rights. The district court then sua sponte determined that because the search warrant

relied on Officer Lyons’ knowing or reckless omission of material information as to the

officers’ sniffs, the warrant was obtained in bad faith, requiring suppression of the

evidence. The district court so held even though Mitchell never requested a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978), which sets forth the well-

established procedure for mounting challenges to a search warrant predicated on false or

misleading information. Nor did the district ever hold a Franks hearing to give Officer

Lyons an opportunity to address his supposed lack of candor in “omitting details” from

the warrant application.

       The government timely appealed. We review de novo the district court’s legal

conclusions and findings of fact for clear error. United States v. Davis, 690 F.3d 226,

233 (4th Cir. 2012).




                                             6
                                            II

      The Fourth Amendment protects “the right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S.

Const. amend. IV.     A search or seizure has “undoubtedly occurred” when “ ‘the

Government obtains information by physically intruding’ on persons, houses, papers, or

effects.” Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Jones, 565

U.S. 400, 406 n.3 (2012)). At its core, the Fourth Amendment protects “the right of a

man to retreat into his own home and there be free from unreasonable governmental

intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). The area “immediately

surrounding and associated with the home,” the curtilage, is “part of [the] home itself for

Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180 (1984).

       However, “[w]hat a person knowingly exposes to the public, even in his own

home or office, is not a subject of Fourth Amendment protection.” California v. Ciraolo,

476 U.S. 207, 213 (1986) (quoting Katz v. United States, 389 U.S. 347, 351 (1967)).

This is because the “touchstone of Fourth Amendment analysis is whether a person has a

‘constitutionally protected reasonable expectation of privacy.’ ” Id. at 211 (quoting Katz,

389 U.S. at 360). Accordingly, it is unreasonable to expect law enforcement officers “to

shield their eyes when passing by a home on public thoroughfares.” Id. at 213. Further,

an apartment dweller maintains no expectation of privacy in the publicly accessible

common areas of an apartment complex. United States v. Jackson, 728 F.3d 367, 373–74

(4th Cir. 2013). Law enforcement officers’ use of their unenhanced senses in publicly

accessible spaces, therefore, does not amount to a “search” under the Fourth Amendment.

                                            7
       It is beyond dispute that here, Officer Lyons and Marshall used their unenhanced

sense of smell to investigate the source of the marijuana odor wafting through a public

space. The officers, while biking on a walkway open to the public, smelled marijuana.

They continued to investigate by sniffing in the general vicinity of A6 to confirm that the

marijuana odor was indeed coming from that apartment. Once reasonably certain of the

odor’s source, the officers sniffed the window and door frames to confirm their

suspicions, only to be met with a fresh whiff of marijuana when Mitchell opened the

door. Critically, at no point did the officers use anything but their own noses to sniff in

spaces open and accessible to the public. The officers’ sniffs were decidedly not a search

under the Fourth Amendment.

       In holding to the contrary, the district court ignored decades of Supreme Court

precedent rooted in the fundamental principle that law enforcement officers do no

violence to the Fourth Amendment by gathering evidence in public places using their

unenhanced senses. In Taylor v. United States, 286 U.S. 1 (1932), for example, several

prohibition officers smelled the odor of whisky emanating from a garage. Based on that

smell, the officers entered into the garage and seized 122 cases of whisky. Id. at 5–6.

The Court emphasized that “officers may rely on a distinctive odor as a physical fact

indicative of a possible crime,” but nonetheless suppressed the evidence because the

officers did not obtain a search warrant before entering the garage. Id. at 6.

       Similarly, in Johnson v. United States, 333 U.S. 10 (1948), the Court noted that “a

strong odor of burning opium” outside a hotel room door “might very well be found to be

evidence of most persuasive character.” Id. at 13–14. As in Taylor, the Court found

                                             8
error not because officers gathered incriminating evidence by sniffing outside the

defendant’s hotel door, but because the officers entered and searched the hotel room prior

to obtaining a warrant. Id. at 14–15.

       More recently, in California v. Ciraolo, 476 U.S. 207 (1986), the Court reaffirmed

that law enforcement officers’ unenhanced observations from a vantage point available to

“[a]ny member of the public,” is not a search cognizable under the Fourth Amendment.

Id. at 213. Although law enforcement officers purposely flew an airplane over the

defendant’s property to gain a better view of marijuana growing within a fenced area, the

Court found that the officers had not conducted a “search” because all observations were

made from “publicly accessible airspace.” Id. at 213–15. In so holding, the Court

soundly rejected respondent’s contention that he maintained a “reasonable expectation of

privacy” in a publicly observable area, or that the specific “law enforcement purpose”

with which the officers made their observations rendered the fly-over a search. Id.; see

also Florida v. Riley, 488 U.S. 445, 448–52 (1989) (officer’s naked-eye observation of

the respondent’s greenhouse from a helicopter was not a search); United States v. Dunn,

480 U.S. 294, 303–04 (1987) (officers’ act of shining a flashlight and looking into the

defendant’s barn from a nearby field was not a search); United States v. Lee, 274 U.S.

559, 563 (1927) (no search occurred when the agent used a searchlight to observe cases

of liquor on deck before the defendant’s boat was boarded).

       The reasoning in Ciraolo is equally sound here. No principled distinction exists

between an officer using his eyes as opposed to his nose to detect incriminating evidence.

Accord United States v. Humphries, 372 F.3d 653, 658 (4th Cir. 2004); United States v.

                                            9
Cephas, 254 F.3d 488, 494–95 (4th Cir. 2001). Stated simply, “a human sniff is not a

search, we can all agree.” Florida v. Jardines, 569 U.S. 1, 14 n. 2 (2013) (Kagan, J.,

concurring) (“If officers can smell drugs coming from a house, they can use that

information; a human sniff is not a search, we can all agree.”).

       Although the district court acknowledged that the officers smelled marijuana in a

manner no different than any member of the public, the district court nonetheless found

the officers had conducted a search because they sniffed “with an investigatory purpose”

and “with the power and authority to act on that purpose.” The district court rested its

decision on the Supreme Court’s recent opinion, Florida v. Jardines, 569 U.S. 1 (2013).

The district court misread Jardines.

       In Jardines, the Court was asked to determine whether “the government’s use of

trained police dogs to investigate [the exterior of] a home and its immediate surroundings

is a search within the meaning of the Fourth Amendment.” Id. at 11–12 (emphasis

added). The Court answered in the affirmative because “the officers’ investigation took

place in a constitutionally protected area,” and was accomplished by an “unlicensed

physical intrusion” through the use of a narcotics canine. Id. at 7–9 (emphasis added).

Indeed, the Court expressly noted that an officer may do what “any private citizen might

do” outside a home and be within constitutional limits. Id. at 8 (quoting Kentucky v.

King, 563 U.S. 452, 470 (2011)). But using a “trained police dog to explore the area

around the home in the hopes of discovering incriminating evidence” without a warrant is

the very type of “unlicensed physical intrusion” prohibited under the Fourth Amendment.



                                            10
Id. at 9. It is in this context that the Court noted the constitutionality of an officer’s

conduct was “limited not only to a particular area but also to a specific purpose.” Id.

       At base, the district court impermissibly expanded Jardines to prohibit officers in

public areas from using their unenhanced senses to investigate criminal wrongdoing. 3

The officers repeatedly testified that their sniffs were no different than what any passerby

could have done, whether that sniff was to catch a whiff of an illegal substance or

something savory cooking on the stove. Nor was it disputed that the officers caught anew

the smell of marijuana after they lawfully knocked on the door and Mitchell voluntarily

opened it. Just as law enforcement officers are not compelled to “shield their eyes” from

plainly visible criminal activity, Ciaraolo, 476 U.S. at 213, Officers Lyons and Marshall

were not required to plug their noses as they passed Mitchell’s apartment. Because the

officers’ sniff outside Mitchell’s apartment was not a search, we must reverse. 4




3
   Every case on which the district court relies involved a canine sniff. See Jardines, 569
U.S at 4; United States v. Hopkins, 824 F.3d 726, 732–33 (8th Cir. 2016); United States
v. Burston, 806 F.3d 1123, 1125 (8th Cir. 2015); People v. Burns, 50 N.E.3d 610, 614
(Ill. 2016); State v. Rendon, 477 S.W.3d 805, 807 (Tex. Crim. App. 2015).
4
   The odor of marijuana alone provides probable cause to believe that evidence of
marijuana possession would be found in Mitchell’s residence. See, e.g. United States v.
Humphries, 372 F.3d 653, 658 (4th Cir. 2004). Mitchell argues, however, that the
Commonwealth’s limited exception allowing citizens to possess marijuana for medical
reasons, see Va. Code § 18.2-250.1, undermined the magistrate’s probable cause finding.
We reject this contention. “[O]nly the probability, and not a prima facie showing, of
criminal activity is the standard of probable cause.” Illinois v. Gates, 462 U.S. 213, 235
(1983); see also U.S. v. Carpenter, 461 F. App’x 539, 540 (9th Cir. 2011) (“The
existence of the Compassionate Use Act (‘CUA’) and the Medical Marijuana Program
Act (‘MMPA’) do not change the probable cause analysis. . . . [T]he police are not
required to investigate the existence of affirmative defenses under the CUA or MMPA
once probable cause has been established.”). This is especially the case so long as
                                            11
                                             III

       As to the district court’s sua sponte finding that Officer Lyons, in his affidavit,

knowingly or recklessly misled the magistrate, here too the district court erred. Although

not necessary to this Court’s determination because we hold no constitutional violation

occurred, the significance of the district court’s error merits separate treatment.

       It is well-settled that a “presumption of validity” attaches to a search warrant

because a neutral, detached judicial officer must first find probable cause based on facts

sworn in an affidavit. See Franks v. Delaware, 438 U.S. 154, 171 (1978). Generally,

evidence seized upon the execution of a search warrant is shielded from suppression,

even if later revealed that the warrant was constitutionally infirm. Id. at 164–65; see also

United States v. Leon, 468 U.S. 897, 920–22 (1984). To overcome this presumption of

the warrant’s validity, a defendant must make a “substantial” preliminary showing that

the affiant acted in bad faith by knowingly or recklessly misrepresenting or omitting facts

essential to the warrant’s issuance.     Id. at 155–56.    If the defendant makes such a

showing, then he is entitled to a Franks hearing, during which the defendant bears the

burden of demonstrating that the affidavit included false statements or omissions material

to the probable cause determination. Franks, 438 U.S. at 171–72; see also United States

v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011). The defendant’s burden is especially

demanding at a Franks hearing “[w]here a defendant challenges the validity of a warrant

based ‘on an omission, rather than on a false affirmative statement.’ ” United States v.


marijuana possession is prohibited by federal law, without exception.           21 U.S.C. §
841(a)(1).
                                             12
Simpson, 659 F. App’x 158, 160 (4th Cir. 2016) (per curiam) (quoting United States v.

Tate, 524 F.3d 449, 454 (4th Cir. 2008)). “[M]erely showing an intentional omission of a

fact from a warrant affidavit does not fulfill Franks’ requirements.” Tate, 524 F.3d at

455. The defendant must also demonstrate the omission was with “ ‘the intent to make,

or in reckless disregard of whether they thereby made, the affidavit misleading.’ ” Id.

(quoting United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)). If, upon weighing

the evidence and testimony presented at the Franks hearing, the court finds that the

defendant has met his burden, only then is suppression of the evidence warranted.

Clenney, 631 F.3d at 663.

      The district court turned this process on its head. At no time did Mitchell seek a

Franks hearing or make the requisite substantial showing. Nor did the Court hold a

Franks hearing or ask the parties to brief the propriety of suppressing the evidence in

light of a validly executed warrant. Furthermore, no record evidence supports the district

court’s finding that Officer Lyons’ application knowingly or recklessly misled the

magistrate. The district court’s abrogation of the procedures announced in Franks —

which has been followed by district courts for forty years — was improper.

                                           IV

      Because the officers’ sniffs outside the Appellee’s apartment were not a search

under the Fourth Amendment, the order of the district court granting Appellee’s

suppression motion is

                                                         REVERSED AND REMANDED.



                                           13
