Extending Jardines to apartments

Should police be permitted to use a drug-sniffing dog to roam the hallways of an apartment or condominium complex to search for contraband without getting a warrant from a judge? That is the question confronted by the state supreme court yesterday in a case called State v. Dennis Kono. Hiding underneath that are several other considerations of importance: should the police's power to search a person's residence be any different depending on whether the residence is an apartment, condominium or free-standing house; and should the search for contraband outweigh any Fourth Amendment rights we have as citizens?

It's important to note that case is about the question of whether police required a warrant before using the drug-sniffing dog to search the hallway and the defendant's apartment.

The Home is First Among Equals

The Fourth Amendment protects "persons, houses, papers, and effects". The United States Supreme Court has repeatedly asserted that a person's home is "first among equals":

At the Amendment's 'very core' stands '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).

Thus, the home and the "curtilage" - the area immediately surrounding and associated with the home, are revered in Fourth Amendment law. If the search by the drug-sniffing dog in Dennis Kono's case had been conducted at the door to his free-standing home, or on the porch of that home, the case would be an easy one: It would be controlled by the United States Supreme Court's decision in Florida v. Jardines, 6 No. 11-564 (U.S. Mar 26, 2013).

In that case, after receiving an unverified tip that marijuana was being grown at that residence, police walked up to the front porch of a home, with a drug-sniffing dog, and after the dog alerted to the presence of narcotics by sniffing at the door, they obtained a warrant to search the home and ultimately found marijuana.

In Dennis Kono's case, the facts are identical: there was a tip, police obtained entry into the apartment building legally and the drug-sniffing dog alerted to his apartment after sniffing at the front door.

The only difference in the two cases is that Jardines lived in a stand-alone home and Kono lived in an apartment building. So the question becomes: is that distinction significant and should it be?

Trespass v. Reasonable Expectation of Privacy

There are two theories of a search of a home in Fourth Amendment law: a search can be illegal because the police conduct is a "physical trespass" - an unlicensed physical intrusion, or it is a search that violates a reasonable expectation of privacy that we, as a society, have recognized in a place or an object.

Certainly, police have the right to walk up to anyone's door: whether it be in a condominium, or a free-standing house. They have the right to knock on that door, and if you answer, to ask you questions within limits. But, the United States Supreme Court has held, when on that "curtilage", the police may not use a drug-sniffing dog to conduct a search absent a warrant. The Court has also said that we have a reasonable expectation of privacy in what we do in the privacy of our homes and police cannot use technology, like thermal imaging, Kyllo v. United States, 533 U.S. 27 (2001), to peer inside without a warrant.

So that requires our supreme court to answer: where does the "curtilage" of an apartment begin? Is there such a thing? A common hallway is, by definition, common and lots of people have access to the hallway: other tenants, guests, maintenance workers, sometimes even mailmen and delivery workers. So why should the police not be permitted to stand in that common hallway and do what they please? Are they "trespassing" on any property of the apartment owner? If there is no "curtilage" of the apartment in that hallway, there is no "trespass" and under the first theory, the warrantless search would be legal. If we don't have an expectation of privacy in the area just outside the door to an apartment, there is no illegal search under the second theory.

Both of the state's arguments, in my opinion, must fail: we not only associate some portion of a common hallway with the apartment immediately adjacent - newspapers and packages are often left right outside the door - but we also have some expectation of privacy that people don't stand outside the door and listen in, or we certainly wouldn't expect a police officer to lie flat on the hallway and peer under the door.

But here's where the policy question comes in: should we hold that an apartment is per se a different type of home than a free-standing house? Should we alter the protections our Constitution gives us based on income? One does not need to be a policy expert and social justice crusader to envision that a less than scrupulous police department might use such a decision to routinely deploy drug-sniffing dogs in the hallways of housing projects and apartment buildings in low-income areas - those that are already designated "high crime". Such a ruling might further permit our police forces to unfairly target those in urban cities and poorer communities. From a policy perspective, it would seem that there is no benefit societally to permitting the Fourth Amendment to be applied differently based on the type of home one resides in.

Should anyone have a right to privacy in contraband?

The other argument put forth by the prosecution - and one that some of the Justices seemed to agree was more interesting - was that people don't have the right to an expectation of privacy in contraband. This argument stems from two separate U.S. Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and United States v. Place, 462 U.S. 696 (1983). In both those cases, the Court said that people don't have a reasonable expectation of privacy in contraband. In Caballes, the search was of a vehicle and in Place, a bag at an airport.

The argument is appealing, but ultimately must fail. The appeal is simple: contraband and illegal items should not be protected from detection by law enforcement. No one should expect that they have a right to keep contraband secret from the world and the drug-sniffing dogs only detect contraband, so their use should not be proscribed by the Fourth Amendment.

The problem with this argument, of course, is that such determinations can only be made after the search has been conducted and the contraband seized. The Fourth Amendment should always be construed to protect people and places: so the privacy expectation isn't in the contraband, but in the house in which the contraband is stored. It is this critical distinction which should lead to the failure of the prosecution's position. The use of the drug-sniffing dog invades the privacy protection in one's home, because it allows law enforcement to pierce through the walls of the home without a warrant. This is why the cases of Caballes and Place are not applicable: they involved searches in public, where we have diminished expectations of privacy. The privacy expectations in the home should be sacrosanct.

Otherwise, we would permit law enforcement officers to walk up to doors and peer through the cracks without problem. That's certainly a policy we wouldn't want to endorse. The Illinois Supreme Court, recently confronted with this very issue, ruled in favor of privacy and against the warrantless use of drug-sniffing dogs. People v. Burns, 2016 IL 118973 (Ill. 2016). What our supreme court will do remains to be seen, but it is sure to be a decision that will impact the limits of lawful policing for years to come, especially since technology will only make it easier for police to pierce the physical boundaries of a home without any actual physical intrusions.