Momentum against warrantless drug-sniffing dogs?

Two weeks ago, the Connecticut Supreme Court heard oral argument in a case involving the police’s use of a drug-sniffing dog in an apartment hallway without getting a warrant first. I wrote a detailed review of the case over at CT News Junkie, in which I speculated that the court would likely rule against such uses of drug-sniffing dogs and why that would be the correct outcome.

It seems that I’m not alone in thinking so. Just today, the 7th Circuit Court of Appeals issued an opinion in an almost identical case, United States v. Whitaker. In that case the issue was the same: should warrantless use of a drug sniffing dog in an apartment hallway be permitted under the Fourth Amendment. The court emphatically said no, for two primary reasons.

Reasonable Expectation of Privacy. First, while not wading into the tresspass vs. reasonable expectation of privacy debate, the simply cites the concurrence in Jardines (which held such searches illegal in relation to a standalone home) and concludes that we all have a reasonable expectation of privacy in apartments and in a limited sense in the hallway outside an apartment door:

Whitaker’s lack of a reasonable expectation of complete privacy in the hallway does not also mean that he had no reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public.

Whitaker’s lack of a right to exclude did not mean he had no right to expect certain norms of behavior in his apartment hallway. Yes, other residents and their guests (and even their dogs) can pass through the hallway. They are not entitled, though, to set up chairs and have a party in the hallway right outside the door.

Similarly, the fact that a police officer might lawfully walk by and hear loud voices from inside an apartment does not mean he could put a stethoscope to the door to listen to all that is happening inside.

Applied to this case, this means that because other residents might bring their dogs through the hallway does not mean the police can park a sophisticated drug-sniffing dog outside an apartment door, at least without a warrant. See Jardines, 133 S. Ct. at 1416.

Second, the Court recognized the arbitrariness in limiting Jardines to single family standalone homes:

First, there is the middle ground between traditional apartment buildings and single-family houses. How would courts treat a split-level duplex? Perhaps even one that had been converted from a house into apartments? Does the number of units in the building matter, or do all multi-unit buildings lack the protection Jardines gives to single-family buildings? And what about garden apartments whose doors, like houses, open directly to the outdoors?

In doing so, the Court also acknowledged the unfairness in drawing such a distinction because it would discriminate based on income, race and ethnicity. Poorer people are more likely to live in apartments and those who live in houses are more likely to be white. The Court correctly recognizes that the Fourth Amendment cannot be read to apply differently based on these factors.

Not the same as a car search. The other important point the Court noted is that this case is easily distinguishable from Illinois v. Caballes and United States v. Place. Both those cases are relied upon by the State to argue that there is no reasonable expectation of privacy in contraband. That’s a superficially appealing argument as I’ve said before, but the REP is is not in contraband, but in the place or item being searched – like a home. Both Caballes and Place deal with searches in public places, where there is a lesser expectation of privacy and thus those warrantless searches were legal, whereas the same search of a home would not be.

This is now the second court to rule in this fashion, after the Illinois Supreme Court in People v. Burns. Hopefully the Connecticut Supreme Court follows suit.