Dog-sniff searches in apartment hallways require a warrant

In April 2016, the Connecticut Supreme Court was asked whether police should 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. Last week they emphatically answered no.

With the opinion in State v. Dennis Kono, Connecticut now joins a small but growing group of jurisdictions that have extended the robust protections of privacy in the home to apartments. In so holding, the Court answered two important questions: 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?

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. This is the same whether the analysis is conducted under the Federal Constitution’s Fourth Amendment or Article 1, Section 7 of the Connecticut Constitution.

It is well established that this court, in determining whether the police conducted a search under article first, § 7, “employ[s] the same analytical framework that would be used under the federal constitution …. Specifically, we ask whether the defendant has established that he had a reasonable expectation of privacy in the area or thing searched.” (Citations omitted; internal quotation marks omitted.)

State v. Davis, 283 Conn. 280 (2007). A state constitution can afford greater protections than the Federal Constitution, but not fewer. So in deciding the issues raised by this case, our supreme court relied on our state constitution rather than the Federal constitution.

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?

Reasonable Expectation of Privacy in Hallway

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 required 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? Do we have an expectation of privacy in the area just outside our doors, even if we reside in multi-unit buildings?

In deciding this question under the State Constitution, our supreme court didn’t decide whether it was a violation of the “trespass” theory or the “reasonable expectation of privacy” theory:

Because we address the state’s claim under the state constitution, we need not decide whether a canine sniff of an apartment door inside a multiunit building violates the fourth amendment. In the absence of significant precedent to the contrary of which we are unaware, however, and despite conflicting court decisions, we agree with the defendant that the better reasoned federal case law concerning the propriety of residential canine sniffs under the fourth amendment supports the defendant’s position in this case. This is true whether the defendant’s claim is reviewed under the Katz line of privacy based decisions or under the principles of curtilage on which the court in Jardines relied and that the Eighth Circuit applied in Hopkins.

Rather, it held that under our state constitution, the use of canine sniffing dogs required a warrant because the questionable act wasn’t the presence of the canines in the hallway, but using the canines to try and search the interiors of residences. Certainly, while people living in multi-unit residences give up a measure of privacy in the area outside their doors, they don’t relinquish all privacy:

the defendant’s “lack of a right to exclude did not mean [that] he had no right to expect certain norms of behavior in his apartment hallway. [To be sure], 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 [that] he could put a stethoscope to the door to listen to all that is happening inside.

The discrimination problem

In finding that use of drug-sniffing dogs required a warrant, the court acknowledged and adopted the concerns raised by the defense about the appearance of discrimination against lower-income individuals if the state’s position were to be adopted. If individuals were to be stripped of their rights to privacy outside their doors based on the type of residence they occupied, the law would be applied disproportionately against those who were unable to afford single-family residences.

Finally, we perceive no principled reason of public policy, and the state has identified none, why, in the context of canine sniffs, the firm and bright line that we draw at the entrance of the house should apply to single-family dwellings but not to dwellings in a multiunit building. Indeed, as the Seventh Circuit observed in Whitaker, allowing police dogs to sniff the doors of apartments but not freestanding homes would be deeply “troubling because it would apportion [constitutional] protections on grounds that correlate with income, race, and ethnicity.

Should anyone have a right to privacy in contraband?

The other argument put forth by the prosecution 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.

This, too, failed – and rightly so. As I wrote in my original post, the State’s argument incorrectly balanced the two values at play: the lack of a right to privacy in contraband and the strong right to privacy in an individual’s residence. Both Caballes and Place were about contraband searches of private items in public, whereas Jardines was about the search for contraband in a single-family residence. When weighing the right to privacy in a home vs. the search for contraband, the home (correctly) wins.

After distinguishing Caballes and Place in the manner above, our supreme court pointed out the concerns and problems with ruling the other way:

Indeed, even if a canine sniff were to reveal nothing about the interior of the home, we believe that the underlying prohibition against unreasonable intrusions into the sanctity of the home cannot abide the public spectacle of a warrantless canine investigation of the perimeters of any home. It may well be that a canine sniff itself is “discriminating and unoffensive” when compared to other physical intrusions of the premises of a home. United States v. Thomas, supra, 757 F.2d 1367.

Even so, such searches are highly visible and readily identifiable. They also hold a resident up to public scrutiny in his own home. As the Florida Supreme Court observed, “[s]uch a public spectacle unfolding in a residential neighborhood will invariably entail a degree of public opprobrium, humiliation and embarrassment for the resident, for such dramatic government activity in the eyes of many—neighbors, passers-by, and the public at large—will be viewed as an official accusation of crime.” Jardines v. State, 73 So. 3d 34, 36 (Fla. 2011), aff’d, U.S., 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013).

We also share that court’s concern that, if police officers are permitted to conduct warrantless canine searches of people’s homes, “there is nothing to prevent [them] from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen,” and that “[s]uch an open-ended policy invites overbearing and harassing conduct.” Id.

Thus, because people living in apartments don’t give up their right to privacy outside their doors and because their right to privacy outweighs law enforcement’s desire to walk hallways with sensory enhancing instruments to root out potential illegal activity, the use of drug-sniffing dogs must be accompanied by a warrant signed by a judge.

That the Connecticut Supreme Court relied on our state constitution to decide this in favor of the defendant shouldn’t deter others from relying on this case to support their arguments: the justices in the majority recognize that the arc of jurisprudence seems to favor requiring a warrant and other Federal courts have certainly held so. One concurring justice would have affirmed this search under the Federal Constitution.

The rationale for requiring a warrant: that we have a reasonable expectation of privacy in the hallways outside our apartment doors; that society would not countenance the use of drug-sniffing dogs to peer into people’s private residences; and, that the prohibitions against warrantless searches and seizures are concerned with the protections afforded by places and things, rather than purported criminal or innocent activity, apply with equal force regardless of whether the language comes from the Fourth Amendment or the equivalent of a State Constitution.

Utah v. Strieff: legalizing illegal stops

It used to be a basic tenet of American Constitutional jurisprudence that if police illegally stop an individual and find some incriminating evidence on him, the evidence must be suppressed, that is, it cannot be used as evidence to prove the guilt of that individual.

The rationale behind this rule – the “exclusionary rule” – is fairly straightforward: it is a judicial remedy that gives life to the Fourth Amendment’s protections against illegal searches and seizures. If there were no punishment for violating the Constitution, then violations of the Constitution would be meaningless. Now, this is not to say that there aren’t exceptions to this rule – certainly there are: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception.

The United States Supreme Court just drove a police cruiser sized hole through that third exception. In Utah v. Strieff, the Supreme Court held that barring “flagrant misconduct” – whatever that may be- the evidence seized as a result of an illegal stop does not need to be suppressed as long as there is an intervening act, such as, in the case of Strieff, an outstanding warrant. The outstanding warrant gave the officer permission to arrest Strieff, which gave him authority to search him. Therefore, the originial illegality, the reason giving rise to the stop in the first place, is irrelevant.

Attenuation

Typically, the attenuation exception has required much greater distance between the illegality and the evidence sought to be suppressed. The same Supreme Court once said that “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

In Strieff, there was no question that but for the initial illegality, the police would not have found the contraband. Instead of focusing on the degree of attenuation, however, Justice Thomas’ majority opinion simply decides whether the existence of a warrant, by itself, is attenuation. In finding that it is, the opinion opens a veritable Pandora’s box of policing overreaches.

No one is more attuned to this than Justice Sotomayor, who pens an instant classic dissent in which she chides the majority for its simplistic thinking and its disguising the evisceration of Fourth Amendment protections with the cloth of the moral righteousness of the good-faith inquiry of the police officer.

While Justice Sotomayor’s dissent is breathtaking in its honesty, we must be careful not to fetishize it while neglecting the real impact that this opinion will have on the lives of everyday Americans. Americans who are stopped differently based on the color of their skin. Americans who, because of their race, are subjected to more frequent police searches despite being less likely to carry contraband.

Impact on Racial Profiling

This is how policing will work post-Strieff: police will stop individuals they deem suspicious, with or without cause. They will search them and inquire into the existence of warrants. If they search and nothing turns up, everyone goes on their way, no one any wiser. If something does turn up, then their illegal stop has reaped its benefit and the arrest and search will be upheld under Strieff.

If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Those stops where “nothing happens” happen routinely and they happen most frequently to minorities. For instance, of the roughly 260,000 New Yorkers stopped by police between 2013-2015, roughly 86% of them were innocent of any wrongdoing. Of those stopped and frisked, more than half were African American, a third were Latino and the rest white. Between 2001 and 2013, 51% of New York City’s population over age 16 was black or Hispanic. Yet during that period, 82% of those arrested for misdemeanors were black or Hispanic.

In Boston, African-Americans comprised 63% of those betwwen 2007 and 2010 observed, stopped, interrogated, frisked, or searched without making an arrest although they made up 24% of the city’s population.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the existence of a warrant as an intervening circumstance would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

The Supreme Court has made a concerted effort to gut the exclusionary rule. There’s no suppression if the search is based on a reasonable mistake of law, or based on the officer’s negligence, or based on a “pretextual stop“, or merely if substantial social costs exist to skip exclusion.

Now, evidence need not be suppressed even if it came about as a result of a stop completely devoid of any suspicion of wrongdoing. By continually restricting the application of the Fourth Amendment, the Supreme Court is making it difficult for all of us to breathe.

[See also: Orin Kerr at SCOTUSBlog has a detailed criticism of the opinion.]

Utah v. Strieff and the importance of the exclusionary rule

The United States Supreme Court is currently pondering a case that may change the way modern America polices its communities. I realize that this is a pretty bold statement to make, especially in light of the ongoing conversation in America over the last year or two over policing standards especially in minority communities, but the impact of the decision in this case could be such that it will only further deepen the divide between police and the communities they serve.

The Exclusionary Rule

The case is Utah v. Strieff, in which the question the Justices are grappling with revolves around the application of the so-called ‘Exclusionary Rule.’ The Fourth Amendment protects us against unreasonable searches and seizures, but there’s no mechanism for enforcing that protection. The exclusionary rule is a

judicial remedy that gives life to that protection.

State v. Strieff, 357 P.3d 532, 538 (Utah 2015). It is the punishment imposed upon the Government for failing to abide by the restrictions of the Fourth Amendment. In simpler terms, evidence that is obtained in violation of the Fourth Amendment is not admissible at trial against an accused – thus the evidence is “excluded.” In deciding whether to exclude evidence illegally collected, courts apply the “fruit of the poisonous tree” doctrine: whether there is a causal link between the illegal police conduct and the evidence in question.

As the CT Supreme Court explained:

Thus, evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is so attenuated as to dissipate the taint…. Segura v. United States, 468 U.S. 796, 805, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).” (Internal quotation marks omitted.) State v. Luurtsema, 262 Conn. 179, 189, 811 A.2d 223 (2002). In other words, “the question to be resolved concerning the admissibility of derivative evidence is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

State v. Brunetti.

Applying the standard exclusionary rule in this case produces a simple result: Strieff was illegally stopped in his car and as a result of that illegal stop, the police discovered he had a warrant and arrested him. As a result of that arrest, they conducted a search of his person and found contraband.

There is the classic “but-for” connection: but for the illegal stop, they wouldn’t have found his warrant and wouldn’t have arrested him and wouldn’t have found the contraband.

Exceptions to the Rule

Now, there are three circumstances in which such evidence is nonetheless admissible: (1) the independent source exception, (2) the inevitable discovery exception, and (3) the attenuation exception. It is this third exception that Utah relies on: the existence of a warrant is an intervening circumstance that renders the illegal stop irrelevant.

Courts across the country are divided on the issue and this is what the Supreme Court is asked to decide. But the issue runs deeper: as at least two commentators have noted, the future of the exclusionary rule may hang in the balance here.

Whether the court merely decides that the exclusionary rule does not apply when there is a legal warrant after an illegal Fourth Amendment event, or whether it goes further and erodes the protection of the exclusionary rule in all cases, the impact will be tremendous.

Impact on Policing

Just last week, Central Connecticut State University released its annual report on racial profiling in Connecticut. The news wasn’t much better than previous years:

But when researchers reviewed stops made during daylight hours, when they said officers could see the race and ethnicity of drivers, Hispanics were nearly 14 percent more likely to be pulled over and blacks were about 7 percent more likely to be stopped than they were at night.

The report also says minorities were more likely to get misdemeanor summons for speeding and other infractions, while whites were more likely to get written warnings.

And as last year’s report revealed:

The six-month data also showed that black and Hispanic motorists were at least twice as likely as a white motorist to be subjected to a consensual search, though the stops of white drivers were more likely to yield contraband.

And now the problems with any opinion in Strieff limiting the exclusionary rule or doing away with it become clear. If police are permitted to illegally stop motorists without fear of suppression of evidence found as a result of that illegal stop, then there is no incentive to make traffic stops that comply with existing law and preferred societal norms. Racial profiling, currently the subject of consternation and disapproval, will become de rigueur.

Police are already permitted to take into account “high-crime neighborhoods” – euphemism for minorities – in their calculus for determining reasonable suspicion. In Connecticut, officers are permitted to “briefly detain” an individual for whom they have no suspicion if that individual is accompanying someone they wish to legally detain. Once again, the lack of an exclusionary rule – or the existence of a warrant as an intervening circumstance – would permit officers to make routine, unsupported stops of minorities, merely based on their presence in what are perceived to be “high crime neighborhoods” despite a Constitutional prohibition on such stops and searches.

Finally, the CT Supreme Court recently approved of a stop and a search in a case where there was no suspicion of criminal activity at the time of the stop, but merely based on past observations. They also ruled:

Officer Lopa was approaching a person he knew to traffic in large quantities of marijuana and cash. Accordingly, it was reasonable to suspect that the defendant might be armed to safeguard the drugs and the cash.

Bolstered by the lack of an exclusionary rule, officers would have unfettered power to detain, search and investigate individuals in the absence of reasonable suspicion or probable cause. This, as the data bears out, would unfairly target minority communities, but would also render the protections of the Fourth Amendment nearly meaningless.

 

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.

 

Should Administrative Warrants Be Legal?

The Supreme Court heard oral argument today in State v. Saturno, a case which involved the town zoning official obtaining an ex-parte warrant from a judge in order to enter a home suspected of violating zoning laws.

On appeal, the defendant argues that the search of his home was illegal because there is no statutory authority for an administrative search warrant, because there was no probable cause to support the warrant here, and because an administrative search warrant should not issue ex parte.  He claims that the legislature has yet to authorize an administrative warrant by statute, and he points out that the warrant here was obtained using a form that refers only to the criminal warrant statute, General Statutes § 54-33a.

As the Chief Justice aptly pointed out during argument, there are two issues:

1. Is there any authority to issue administrative warrants, and
2. If there is, what should be the procedure for issuing them

The state has indeed been pursuing administrative warrants at the legislature for years and for years (decades even?) they’ve been rebuffed, including this year.

In Saturno the police obtained an administrative warrant because they believed he had an illegal third apartment in his two-family home. When they entered – after breaking down a locked gate – they saw items they believed were part of an illegal pipe bomb making process. Based on that they obtained a criminal warrant and then found further illegal items and he was charged with several crimes.

The defendant argues in his brief that permitting such warrants violates the Fourth Amendment and the proper procedure is the one approved by our supreme court in Town of Bozrah v. Chmurynski. In that case, the court approved of an injunction which gives notice to the homeowner and an opportunity to contest the town’s desire to enter into the home. This would not be possible if administrative warrants were permitted, which would, in essence, allow criminal fact-finding investigations without a showing of probable cause that a crime has been committed.

In essence, the defendant argues that because the administrative process is far removed from a criminal investigation, it should not be treated as such. The policy reasons underlying the criminal warrant process – an ex-parte request, no opportunity by the subject to be heard, no notice – are not applicable when seeking to investigate a zoning violation and thus, the State’s interests aren’t so great that they outweigh an individual’s right to privacy in his home.

To be sure, general administrative searches are permitted under the Federal Constitution:

In the administrative context, on the other hand, the Supreme Court held in Camara v. Municipal Court, supra, 387 U.S. at 538-39, 87 S.Ct. 1727, that inspections that are part of a general administrative plan for the enforcement of a statutory scheme are reasonable within the meaning of the fourth amendment if “reasonable legislative or administrative standards for conducting an area inspection” demonstrate “a valid public interest.” (Emphasis added.) Particularized suspicion for choosing an individual residence within the area searched is unnecessary. Id., at 536, 538, 87 S.Ct. 1727.

In other words, probable cause to inspect a particular location may be based on a showing that the premises was chosen pursuant to a general administrative plan for the enforcement of a statute derived from neutral sources. Marshall v. Barlow’s, Inc., supra, 436 U.S. at 320-21, 98 S.Ct. 1816.

Bozrah. However, in Bozrah the court concluded that in order to conduct a particularized search for a specific home or individual, an injunction based on probable cause, issued by a neutral magistrate, after giving notice to the homeowner, is required.

Certainly situations like Saturno highlight the problem of permitting administrative warrants because they could end up being end runs around the probable cause requirement of warrantless searches. Town officials may, suspecting illegal activity, obtain administrative warrants to inspect the home for fire safety checks or other minor zoning violations and use that opportunity to enter the home in order to scope out other illegal activity whose fruits or instruments might be in plain sight.

If the concept that the home is a person’s castle is to be given any teeth – as with the drug-sniffing dog case from last week – police should not be permitted to enter a person’s home without probable cause and a warrant or some emergency situation to fulfill their caretaking function. An administrative warrant would provide another exception to that well-regarded requirement.

Drug-sniffing dogs in apartments

My column reviewing the issues in State v. Dennis Kono is available at CT News Junkie. The issue in the case is whether police can conduct a warrantless search of an apartment’s common hallway using a drug-sniffing dog. I argue that no, such a search should not be permitted as it would violate the Fourth Amendment’s prohibition against warrantless searches.