In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1159

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

OSCAR GUTIERREZ,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:12-cr-00209-TWP-TAB-2 — Tanya Walton Pratt, Judge.

____________________

ARGUED JUNE 2, 2014 — DECIDED JULY 29, 2014

____________________

Before FLAUM and WILLIAMS, Circuit Judges, and DOW,

District Judge.∗

FLAUM, Circuit Judge. Based on a tip that Oscar Gutierrez 

was involved in drug trafficking, law enforcement went to 

his home with a certified narcotics canine and knocked at the 

front door. Officers saw movement inside, but no one an-

 ∗ Of the Northern District of Illinois, sitting by designation.
2 No. 14-1159

swered the door. The officers had the dog examine the front 

door for the scent of narcotics, and he alerted. After knocking for fifteen minutes, the officers forcibly entered and secured the home, but they did not conduct a search until an 

officer swore out an affidavit and returned with a search 

warrant. That warrant relied on the dog’s positive alert. The 

ensuing search revealed eleven pounds of methamphetamine in Gutierrez’s home.

All of this occurred in November 2012. In 2013, however,

the Supreme Court held that the use of a drug-sniffing dog

on an individual’s porch is a Fourth Amendment search. 

Florida v. Jardines, 133 S. Ct. 1409, 1414–16 (2013). There is

thus no question that the sniff in Gutierrez’s case is no longer permissible, for the officers lacked a warrant (at the time

of the sniff) and no exception to the warrant requirement

applied; moreover, a warrant based primarily on an impermissible sniff would be invalid. However, under Davis v. 

United States, 131 S. Ct. 2419 (2011), the evidence in this case 

should not be suppressed if “binding appellate precedent 

specifically authorize[d]” the officers’ conduct at the time 

they acted. Id. at 2429 (emphasis omitted). The district court 

found that our precedent did authorize the officers’ conduct.

We agree, and therefore affirm.

I. Background

In November 2012, officers received a tip from a confidential informant that Gutierrez was involved in drug trafficking and resided at a particular address in Indianapolis. A 

few days later, numerous law enforcement officers—

including an agent with the Drug Enforcement Agency 

(“DEA”) and detectives with the Indianapolis Metro Drug 

Task Force (“Task Force”)—converged on the home where
No. 14-1159 3

Gutierrez lived. They brought a certified drug dog named 

Fletch with them. When officers knocked on the front door, 

they saw movement within the house but nobody answered. 

Detective Sergeant Cline, a Task Force member, had Fletch 

examine the front door for the scent of narcotics. Fletch gave 

a positive indication when he smelled the door. The officers

continued to knock, and after about fifteen minutes of receiving no response, they were instructed by the Marion 

County Prosecutor to enter and secure the home. They then 

forcibly entered and conducted a sweep for occupants. 

Sometime after the officers entered the home, Detective Sergeant Cline left to obtain a search warrant. In his search warrant affidavit, Cline identified the informant’s tip, the knockand-talk attempt, and Fletch’s positive indication at the door 

as bases for the warrant. A state court magistrate found 

probable cause and issued the search warrant.

After entering the home, officers found Gutierrez and

Cota, both of whom were tenants, in bed in separate rooms. 

Gutierrez and Cota were immediately handcuffed and 

brought to the kitchen. However, the actual search did not 

begin until the warrant arrived at the residence. During the 

search, DEA Agent Schmidt found a black duffel bag containing 11.3 pounds of methamphetamine in the attic. Both 

defendants were charged in December 2012 with a single 

count of possession with intent to distribute over 50 grams 

of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

In March 2013, the Supreme Court decided Florida v. 

Jardines, 133 S. Ct. 1409 (2013), which held that a drug-dog’s 

sniff on the curtilage of a home is a Fourth Amendment 

“search.” Id. at 1414. Two months later, Gutierrez filed a motion to suppress, arguing that law enforcement’s investiga-
4 No. 14-1159

tion and conduct outside his home constituted a search for 

which a warrant was required, and that any evidence recovered during the subsequent search should be suppressed. 

The district court denied the motion. Citing Jardines, the 

court agreed that the dog sniff was a search that violated the 

Fourth Amendment. However, the court determined that the 

“good-faith” exception to the exclusionary rule applied.

The good-faith exception provides that the exclusionary 

rule does not apply where police officers reasonably and in 

good faith believe that their conduct is lawful, such as reliance on a warrant later found to be invalid. United States v. 

Leon, 468 U.S. 897, 922 (1984). This exception applies, among 

other circumstances, when an officer conducts a search in 

reliance on then-binding appellate precedent. See Davis, 131 

S. Ct. at 2429. The district court determined that, under appellate precedent that was binding at the time of the dog

sniff, “officers were not only lawfully at the front door of Defendants’ home but at that time the dog sniff did not constitute a search under the Fourth Amendment. The officers, 

and the magistrate that issued the warrant, relied upon this 

precedent in good faith, and the purpose of the exclusionary 

rule would not be effectively advanced in this particular 

case.” Therefore, the district court declined to suppress the 

evidence seized in the search. The court separately found 

that the officers’ entry prior to obtaining the search warrant 

was not a Fourth Amendment violation, because under Seventh Circuit precedent, “officers who enter and seize a home 

to preserve the status quo while waiting for a search warrant 

do not commit an independently sanctionable violation of 

the Fourth Amendment so long as they had probable cause 

at the moment of entry and the seizure is not unreasonably 

long.” United States v. Etchin, 614 F.3d 726, 734 (7th Cir. 2010) 
No. 14-1159 5

(citing Segura v. United States, 468 U.S. 796, 798 (1984)).

Gutierrez then pleaded guilty, but his plea agreement 

permits him to appeal the district court’s denial of his suppression motion. The court sentenced him to the mandatory 

minimum, 120 months’ imprisonment. After Gutierrez 

pleaded, the district court dismissed the indictment against 

Gutierrez’s co-defendant, Jose Cota, on the government’s 

motion.

II. Discussion

In reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error and 

its legal conclusions de novo. United States v. Bernitt, 392 F.3d 

873, 876 (7th Cir. 2004).

A. Fourth Amendment principles

The Fourth Amendment guarantees the “right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and subject to “few exceptions,” it requires officers to obtain a warrant before searching a home. Kyllo v. United States, 533 U.S. 

27, 31 (2001). This protection extends to the home’s curtilage—the area immediately surrounding and associated 

with the home. California v. Ciraolo, 476 U.S. 207, 212–13 

(1986). “A ‘search’ occurs when an expectation of privacy 

that society is prepared to consider reasonable is infringed,” 

United States v. Jacobsen, 466 U.S. 109, 113 (1984), or when the 

government engages in an unlicensed physical intrusion of a 

constitutionally protected area in order to obtain information, Jardines, 133 S. Ct. at 1414–15.

The next relevant principle is the exclusionary rule, 

which forbids the use of unlawfully obtained evidence at tri-
6 No. 14-1159

al. As late as 1971, the Supreme Court concluded that a 

Fourth Amendment violation automatically led to exclusion

of the improperly obtained evidence. See Whiteley v. Warden,

Wyo. State Penitentiary, 401 U.S. 560, 568–69 (1971). However, 

the Court shifted its approach thereafter, explaining that the 

exclusionary rule is a “judicially created remedy,” not a personal constitutional right. United States v. Calandra, 414 U.S. 

338, 348 (1974). Application of the exclusionary rule depends 

on weighing the costs and benefits in each case. Its benefit is 

deterring police misconduct, Leon, 468 U.S. at 916; but on the 

cost side of the ledger, “[e]xclusion exacts a heavy toll on 

both the judicial system and society at large,” as it often 

“suppress[es] the truth” and risks “set[ting] the criminal 

loose in the community without punishment,” Davis, 131 

S. Ct. at 2427. Thus, exclusion is the option of “last resort,” 

but it tends to be merited when police exhibit “deliberate, 

reckless, or grossly negligent disregard for Fourth Amendment rights.” Id. (citations omitted). Exclusion does not apply in several circumstances, including when police conduct 

a search in objectively reasonable, good-faith reliance 

on “binding appellate precedent.” Id. at 2429.

In Davis, the officers did just that. They conducted a routine traffic stop, lawfully arrested the driver and passenger, 

and then searched the car, where they found evidence of an 

additional, unrelated crime. Id. at 2425. Governing Eleventh 

Circuit precedent permitted this car search at the time, but 

while Davis’s case was on direct appeal, the Supreme Court 

found this sort of car search unconstitutional. See Arizona v. 

Gant, 556 U.S. 332, 335 (2009). Nonetheless, when Davis’s 

appeal reached the Court, it held that exclusion was inappropriate: “when binding appellate precedent specifically 

authorizes a particular police practice, well-trained officers 
No. 14-1159 7

will and should use that tool to fulfill their crime-detection 

and public-safety responsibilities. An officer who conducts a 

search in reliance on binding appellate precedent does no 

more than act as a reasonable officer would and should act 

under the circumstances.” Davis, 131 S. Ct. at 2429 (citations, 

brackets, and internal quotation marks omitted).

In light of Davis, the evidence in Gutierrez’s case should 

not be suppressed if binding appellate precedent authorized 

the officers’ conduct. We therefore proceed to consider our 

relevant precedent, United States v. Brock, 417 F.3d 692 (7th 

Cir. 2005).

B. Seventh Circuit precedent

In Brock, law enforcement executed a search warrant at 

David Brock’s home at 3375 Payton Avenue in Indianapolis, 

where they found drugs. Brock was not home, but three other individuals were. When the police questioned them, one 

of them said that he lived next door at 3381 Payton Avenue, 

and that he watched over both houses. This man said that

Brock rented a room at the 3381 residence, which Brock used 

as his “stash house.” He also told the police that Brock 

transported methamphetamine between the two residences, 

and was storing 16 to 17 pounds of methamphetamine in his 

room at 3381. Finally, this man gave the police a key to 3381, 

and consented to a search of the common areas of that residence. The 3381 residence consisted of a kitchen, a living 

room, and three locked bedrooms. One bedroom was locked 

and had a sign on the door that read, “Stay Out. David.” An

officer with a drug-sniffing dog, Yoba, was called to 3381 to 

corroborate the presence of narcotics. Yoba alerted while 

sniffing just outside Brock’s bedroom. Based on all of these 

facts (including Yoba’s alert), an officer sought a warrant, 
8 No. 14-1159

which a magistrate issued. Officers then forcibly entered 

Brock’s room, where they found 17 pounds of methamphetamine and one pound of cocaine. Brock moved to suppress 

the evidence, arguing that the dog sniff outside his locked 

bedroom door constituted an unlawful warrantless search, 

and that the warrant that was issued in reliance on the sniff 

violated his Fourth Amendment rights. Id. at 693–95. We affirmed the denial of his motion to suppress.

Brock relied on the numerous Supreme Court decisions

holding that a drug-dog sniff does not constitute a search for 

Fourth Amendment purposes because it reveals only the 

presence or absence of narcotics and therefore implicates no 

legitimate privacy interest. Id. at 695 (citing Illinois v. Caballes, 

543 U.S. 405, 408–09 (2005) (dog sniff of a car during a traffic 

stop); Indianapolis v. Edmond, 531 U.S. 32, 40 (2000) (dog sniff

at drug interdiction checkpoint); United States v. Jacobsen, 466 

U.S. 109, 123 (1984) (chemical field test of a substance found 

inside a package); United States v. Place, 462 U.S. 696, 707

(1983) (dog sniff of a traveler’s luggage in the airport)). We 

acknowledged that, unlike those cases, the dog sniff in 

Brock’s case occurred in his home. But we rejected Brock’s 

reliance on Kyllo v. United States, 533 U.S. 27 (2001), which 

involved a thermal imaging search of the defendant’s home. 

The Kyllo Court had emphasized that the use of a thermal 

imaging device revealed both lawful and unlawful conduct, 

so we reasoned that a dog sniff was different because the 

Court had repeatedly explained that a dog sniff detected only contraband and was not even a Fourth Amendment 

“search.” See, e.g., Place, 462 U.S. at 707 (“[T]he canine sniff is 

sui generis. We are aware of no other investigative procedure 

that is so limited both in the manner in which the information is obtained and in the content of the information re-
No. 14-1159 9

vealed by the procedure. Therefore, we conclude that ... exposure of respondent’s luggage ... to a trained canine ... did 

not constitute a ‘search’ within the meaning of the Fourth 

Amendment.”).

Brock therefore held that “the dog sniff inside Brock’s residence was not a Fourth Amendment search because it detected only the presence of contraband and did not provide 

any information about lawful activity over which Brock had 

a legitimate expectation of privacy.” 417 F.3d at 696.1 We 

further explained: “Critical to our holding that the dog sniff 

in this case was not a Fourth Amendment search is the fact 

that police were lawfully present inside the common areas of 

the residence with the consent of Brock’s roommate.” Id. at 

697.

C. Brock remained good law at the time of the search in 

this case

Brock is no longer good law; Jardines expressly held that a 

drug-dog’s sniff on the curtilage is a Fourth Amendment 

search for which a warrant is typically required. 133 S. Ct. at 

1414. But that does not necessarily help Gutierrez, for the 

question here is whether Brock was good law at the time of 

the search in this case. Gutierrez contends that it was not. He 

argues that Jardines itself did not change the law, but merely 

acknowledged a change that had already occurred in United 

States v. Jones, 132 S. Ct. 945 (2012), which was decided ten 

months before the search of Gutierrez’s home. However, we 

 1 We noted that our holding was consistent with the majority of our sister circuits’ opinions in dog-sniff cases. See Brock, 417 F.3d at 696 (collecting cases).
10 No. 14-1159

conclude that Brock remained good law after Jones and was 

not effectively overruled until Jardines.

In Jones, the Court held that the government violated the 

Fourth Amendment by attaching a GPS tracker onto a suspect’s car without a valid warrant and without the suspect’s

consent. See 132 S. Ct. at 949. Four concurring justices would 

have examined the case solely under the reasonable expectation of privacy rubric from Katz v. United States, 389 U.S. 347

(1967), and they criticized the majority’s approach as “unwise” and as having “little if any support in Fourth 

Amendment case law.” 132 S. Ct. at 958 (Alito, J., concurring 

in the judgment). But the majority concluded that, in addition to the Katz test, the Fourth Amendment incorporated a 

common-law trespass test, so that a common-law trespass 

into a constitutionally protected area could itself violate the 

Fourth Amendment. Id. at 949–51.

Nothing in Jones called into question the underlying 

premise of Caballes and Place—and thus of Brock—that an individual has no legitimate expectation of privacy in contraband, and therefore that a drug-dog’s sniff is not a Fourth 

Amendment search. Moreover, the Court had previously 

emphasized that dog sniffs were “sui generis,” Place, 462 U.S. 

at 707, suggesting that doctrinal changes to other Fourth 

Amendment principles might have no effect on this unique 

area.

Furthermore, less than a year before Jones, the Court noted that it is unproblematic for “law enforcement officers 

who are not armed with a warrant [to] knock on a door” of a 

home, including for investigatory purposes; in doing so,

they “do no more than any private citizen might do.” Kentucky v. King, 131 S. Ct. 1849, 1862 (2011); see also 1 WAYNE R.
No. 14-1159 11

LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH 

AMENDMENT § 2.3(e), at 592–93 (4th ed. 2004) (“The route 

which any visitor to a residence would use is not private in 

the Fourth Amendment sense, and thus if police take that 

route for the purpose of making a general inquiry or for 

some other legitimate reason, they are free to keep their eyes 

open ....”). Jones did not call into question any statements in 

King.

Thus, before Jardines, the Court had explicitly allowed 

police officers both to use dog sniffs and to enter the curtilage to seek information—both without a warrant. (Indeed, 

both actions remain permissible even after Jardines, so long 

as they are done separately.) The Court had never suggested 

that, when combined, these individually lawful actions 

might become unlawful.

The foregoing analysis is sufficient to determine that 

Brock remained good law at the time of the search of 

Gutierrez’s home, but we find that Jardines itself further reinforces our conclusion. Jardines’s holding—that the use of a 

drug dog on the defendant’s porch was a Fourth Amendment search—was based on an implied license theory. The 

Court reasoned that there is an implied license to approach

the door, knock, and wait briefly to be received—but this license has a limited scope, which is based on custom. 133 

S. Ct. at 1415–16. Specifically, this license is limited in space, 

time, and purpose. Id. And the key in Jardines was purpose:

there was no “customary invitation” to use “a trained police 

dog to explore the area around the home in hopes of discovering incriminating evidence.” Id. at 1416. The Jardines Court 

therefore rejected the state’s argument—which echoed

Brock—that cases like Caballes, Jacobsen, and Place permitted 
12 No. 14-1159

the police to use warrantless dog sniffs, even on the curtilage, because the technique did not infringe any legitimate 

expectation of privacy.

The Jardines Court noted that “[j]ust last Term,” in Jones,

“we considered an argument much like” Florida’s reasonable-expectations argument. Id. at 1417. Thus, Gutierrez contends, Jardines itself recognized that Jones abrogated Brock’s

rationale. We disagree. Significantly, there was no reliable 

way to predict, after Jones, that the dispositive question 

would be the scope of the implied license—or that the implied license would exclude dog sniffs. See Orin S. Kerr, The 

Curious History of Fourth Amendment Searches, 2012 Sup. Ct. 

Rev. 67, 69 (2012) (observing—after Jones but before 

Jardines—that “implementing the Jones trespass test will require courts to resolve its scope. ... Courts called on to interpret the trespass test must do so with little in the way of history or precedent to guide them.”). As the four dissenting 

justices in Jardines pointed out, “in the entire body of common-law decisions, the Court has not found a single case 

holding that a visitor to the front door of a home commits a 

trespass if the visitor is accompanied by a dog on a leash. On 

the contrary, the common law allowed even unleashed dogs 

to wander on private property without committing a trespass.” 133 S. Ct. at 1424 (Alito, J., dissenting); see also id. at 

1420 (arguing that the Court’s decision “is based on a putative rule of trespass law that is nowhere to be found in the 

annals of Anglo-American jurisprudence”). For all of these 

reasons, we find that Brock remained good law after Jones.

D. The officers satisfied the good-faith exception here

In light of the foregoing, this case qualifies for the “binding appellate precedent” exception, because this case is ex-
No. 14-1159 13

actly like Brock in all important respects. First, as in Brock, 

police had a trained drug dog conduct a brief sniff at the 

door to a living space. See Brock, 417 F.3d at 693. The fact that 

one dog sniff occurred outside the front door to Gutierrez’s 

home, and the other occurred outside the door to Brock’s 

room, is immaterial. In both cases, police were lawfully present at the time of the search: in Brock, a cohabitant gave 

consent to a search of the common areas of the residence, see 

United States v. Matlock, 415 U.S. 164, 171 (1974); and in 

Gutierrez’s case, the police walked up to the front door and 

knocked, which is lawful, see Jardines, 133 S. Ct. at 1416; King, 

131 S. Ct. at 1862. In both cases, the officers then brought out 

their drug dog—now a constitutional violation under 

Jardines, but lawful at the time given Caballes and Place. In 

other words, at the time of both sniffs, there was no legal 

distinction between a “knock-and-talk” and a “knock-andsniff.” Furthermore, in both Brock and Gutierrez’s cases, the 

police sought and obtained a warrant based in part on the 

positive dog alert. See Brock, 417 F.3d at 694. And in neither 

case did the police conduct a search until they were armed 

with a warrant. See id. This case and Brock are on all fours.

It is true, of course, that unlike in Brock, the police in 

Gutierrez’s case entered the home and conducted a brief 

sweep before they had a warrant. Yet our precedent permits 

as much to preserve the status quo while officers obtain a 

warrant, see Etchin, 614 F.3d at 734, and the district court 

found it “undisputed that the actual search did not begin until the warrant arrived back at the residence.” Thus, this minor factual distinction does not make a legal difference.

Another unimportant factual distinction is the fact that 

the officers in Gutierrez’s case knocked at the front door for
14 No. 14-1159

about fifteen minutes. While it may rise to a constitutional 

violation if officers linger at the door too long, see, e.g.,

Jardines, 133 S. Ct. at 1415, it is undisputed that (1) the officers were allowed to do a “knock-and-talk,” where they attempt to get information voluntarily from a suspect, see id. at 

1416; and (2) the officers here used Fletch shortly after the 

knock-and-talk attempt, and he quickly alerted. Only then 

did the officers allegedly “linger.” The crucial moment was 

the dog sniff, because the positive alert formed the primary 

basis of the search warrant; and under Brock, the officers 

(and Fletch) were lawfully where they were at the time of 

the sniff. Thus, even if there were a “lingering” violation in 

this case, it would be harmless.

In sum, because binding appellate precedent permitted 

law enforcement’s conduct at the time it took place, this case 

falls within Davis’s exception to the exclusionary rule.

In so holding, we reject Gutierrez’s contention that alleged official misconduct in this case merits exclusion of the 

evidence. He raises two arguments. The first is that the officers in this case acted in obvious disregard of established 

trespass principles. As noted above, however, Supreme 

Court precedent clearly (if separately) permitted knock-andtalks and drug-dog sniffs, and our precedent clearly permitted lawfully present officers to conduct a dog sniff at the 

threshold of a living space. It is too simplistic to suggest, as 

Gutierrez does, that Jones and Jardines simply reaffirmed the 

principles of Olmstead v. United States, 277 U.S. 438 (1928).

Olmstead (and its progeny) turned on a straightforward

point: “[t]here was no entry” into defendants’ homes or offices, so the Fourth Amendment was not implicated. 277 U.S. 

at 464. Jardines was more nuanced: it forbade entering the 
No. 14-1159 15

curtilage for the purpose of doing a dog sniff, but it did not 

forbid entering the curtilage for the purpose of knocking on 

the door. Unlike Jardines, Olmstead never considers purpose. 

Because the reasoning in these two cases is quite different, 

Gutierrez’s first argument is unpersuasive.

The gravamen of his second argument is that six months 

after the search of Gutierrez’s home, DEA Agent Schmidt 

submitted an affidavit that was inconsistent in certain respects with his own (and with Detective Sergeant Cline’s) 

contemporaneous reports of the search in this case. For instance, in his affidavit, Schmidt claimed that Gutierrez and 

Cota had given verbal consent to search the home, but the 

district court found that Gutierrez was never asked for consent and Cota expressly denied consent. Gutierrez argues 

that Schmidt’s alleged misrepresentation supports exclusion

here, as Schmidt exhibited “deliberate, reckless, or grossly 

negligent disregard for Fourth Amendment rights.” Davis, 

131 S. Ct. at 2427 (citation and internal quotation marks 

omitted). The inconsistencies after the fact give us some 

pause, but as noted, the officers acted in strict compliance 

with binding precedent. Furthermore, they secured the 

premises immediately but did not conduct a search until 

they had obtained a then-valid search warrant. Finally, the 

district court wisely held an evidentiary hearing and resolved factual disputes in Gutierrez’s favor. This somewhat 

odd situation, which arose after the fact, does not constitute

a deliberate or reckless Fourth Amendment violation.

III. Conclusion

Because binding appellate precedent permitted law enforcement’s conduct at the time it occurred, we AFFIRM the 

district court’s denial of Gutierrez’s motion to suppress.