Chicago, Illinois 60604 Argued October 9, 2014 Decided October 10, 2014 Before… v. Terrion Herman

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 9, 2014
Decided October 10, 2014
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13-­‐‑3210
UNITED STATES OF AMERICA,
Plaintiff-­‐‑Appellee,
v.
TERRION HERMAN,
Defendant-­‐‑Appellant.
Appeal from the United
States District Court for the
Central District of Illinois.
No. 10-­‐‑20003
James E. Shadid, Chief Judge.
Order
Terrion Herman was sentenced to life imprisonment following his conviction for
possessing 50 or more grams of cocaine base with intent to distribute. 21 U.S.C.
§841(a)(1), (b)(1)(A)(iii). He presented a single contention on appeal: that Dorsey v. Unit-­‐‑
ed States, 132 S. Ct. 2321 (2012), entitled him to be resentenced under the Fair Sentencing
Act of 2010. We agreed and remanded for that purpose.
Back in the district court, Herman sought to raise a new argument: that Florida v.
Jardines, 133 S. Ct. 1409 (2013), requires the suppression of evidence that had been seized
after a drug-­‐‑detection dog alerted in the hallway of the apartment building where Her-­‐‑
man lived. Jardines holds that a dog’s entry into a home’s curtilage is a search under the
Fourth Amendment; Herman contended that the holding should be applied to apart-­‐‑

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No. 13-­‐‑3210 Page 2
ment hallways as well, at least when the apartment building’s front door is locked.
Herman had filed a motion to suppress before his trial but had not made an argument
along these lines.
The district court declined to hold a new suppression hearing, invoking the mandate
rule, under which a district court must implement a court of appeals’ instructions. We
had remanded for a specific purpose, not generally. The court then resentenced Herman
to 360 months’ imprisonment. He does not contest that sentence but maintains that he
should not have been convicted at all and that a change of law can justify departure
from the mandate.
That’s true enough, but Herman encounters a different problem. Davis v. United
States, 131 S. Ct. 2419, 2423–24 (2011), holds that the exclusionary rule cannot be used to
suppress evidence that had been properly seized under authoritative precedent, even if
that precedent later is overruled or otherwise disapproved. Herman’s principal conten-­‐‑
tion (which he repeats in this court) is that Jardines worked a dramatic shift in the law,
which justifies raising an issue outside the scope of the mandate. And if that is so, then
Davis means that the exclusionary rule is unavailable.
We held exactly this in United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014), a case
in which the defendant proposed to suppress evidence that had been seized as a result
of a dog’s alert on a home’s front porch. We concluded that under circuit law the use of
the dog was proper before Jardines, bringing the rule of Davis into play. Likewise, circuit
law before Jardines allowed police to collect evidence in apartment hallways without
probable cause or a search warrant. See, e.g., United States v. Villegas, 495 F.3d 761, 767–
69 (7th Cir. 2007); United States v. Concepcion, 942 F.2d 1170, 1172–73 (7th Cir. 1991).
In light of Davis and Gutierrez, we need not decide how Jardines applies to apartment
hallways (which are open to many persons other than a given tenant’s family and in-­‐‑
vitees), whether consent of another tenant or the landlord would permit a dog to enter,
and whether, if the use of the dog is a search, what is required for that search to be rea-­‐‑
sonable (reasonable suspicion? probable cause? probable cause plus a warrant?). Nor
need we address the fact that the eventual search of Herman’s apartment was support-­‐‑
ed by a warrant, attempt to determine whether the warrant would be valid even if evi-­‐‑
dence about the dog’s alert were disregarded, or determine how United States v. Leon,
468 U.S. 897 (1984), applies to warrant-­‐‑authorized searches in which a violation of
Jardines produces some of the evidence discussed in the affidavit. All these questions are
reserved for future cases where a dog is used after Jardines.
AFFIRMED

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