Growing Jardines: expanding protections against warrantless dog sniffs to multiunit dwellings.

AuthorConnon, Eric

CONTENTS

INTRODUCTION I. UNITED STATES V. HOPKINS: EXPANDING JARDINES PROTECTIONS THROUGH "CONSTITUTIONALLY PROTECTED AREA" ANALYSIS A. Was the Information Obtained Within a Constitutionally Protected Area? B. If Information Was Obtained by the Drug Dog Sniff Within a Constitutionally Protected Area, Was the Officer Given Leave, Explicitly or Implicilty, to Do So? II. UNITED STATES V. WHITAKER: EXPANDING JARDINES PROTECTIONS THROUGH JUSTICE KAGAN'S REASONABLE EXPECTATION OF PRIVACY ANALYSIS III. POST--WHITAKER AND HOPKINS: IMPLICATIONS AND ONGOING QUESTIONS A. Addressing the Economic and Racial Inequities Stemming from Jardines B. How Far Do Whitaker and Hopkins Reach (and Where Do They Go)? C. Do Whitaker and Hopkins Conflict with Caballes and Place? CONCLUSION INTRODUCTION

Since the Supreme Court's decision in Florida v. Jardines, (1) courts have been left grappling with the full extent of the additional protection afforded to residents from warrantless canine drug sniffing. Jardines involved the taking of a police drug dog up to the porch and front door of a single-family, detached house "via the driveway and a paved path." (2) After "energetically exploring the area for the strongest point source of [an] odor" the dog alerted by sitting at "the base of the front door." (3) The Court, in holding that this warrantless activity was beyond the bounds of permitted conduct, noted that "[t]he government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment." (4)

The majority opinion, authored by Justice Scalia, arrived at the conclusion not through a Katz "reasonable expection of privacy" analysis, (5) but through a determination that the drug sniffing occurred in "an area belonging to Jardines and immediately surrounding his house--in the curtilage of the house, which we have held enjoys protection as part of the home itself." (6) In doing so, the Court returned to an earlier conception of "constitutionally protected areas" that had been largely overshadowed since the advent of the Katz privacy test. (7)

Both tests remain viable approaches to determining Fourth Amendment searches, (8) but the Jardines majority declined to address whether the drug sniffing was also a search under the Katz test. (9) Justice Kagan authored a concurring opinion finding that the drug sniff was both a trespass and an invasion of privacy sufficient to find it a search under both Katz and Kyllo v. United States. (10) Kagan maintained that she "could just as happily have decided [the case] by looking to Jardines's privacy interests" (11) because a drug dog is a device "not 'in general public use,' [and] training it on a home violates our 'minimal expectation of privacy'--an expectation 'that exists, and that is acknolwedged to be reasonable.'" (12) However, it "is unclear ... whether Justices Scalia and Thomas, who did not join in the concurring opinion which does apply the Katz analysis, would disagree with the result reached by the concurring opinion that the conduct violates the respondent's reasonable expectation of privacy...." (13) The lingering questions surrounding Jardines have left lower courts to address the full implication of the decision.

In particular, the Supreme Court left open two critical questions: "Does the Fourth Amendment protection-afforded concept of curtilage exist outside the context of a single-family dwelling" (14) and, if not, does an apartment dweller have a reasonable expectation of privacy in the area just outside his door? In this most recent term, the Seventh and Eighth Circuits expanded the protections against warrantless drug dog sniffs to multiunit dwellings, but only one has answered that question in the affirmative. While both Circuits found drug sniffs of the front doors of apartments to be searches, the Eighth Circuit (15) arrived at the conclusion through the Jardines majority's "constitutionally protected area" analysis, (16) while the Seventh Circuit (17) found that such a police action violated a tenant's reasonable expectation of privacy. (18)

  1. UNITED STATES V. HOPKINS: EXPANDING JARDINES PROTECTIONS THROUGH "CONSTITUTIONALLY PROTECTED AREA" ANALYSIS

    The Jardines majority opinion employed a two-part series of questions to identify the dog sniff as a Fourth Amendment search: (1) was the information obtained within a constitutionally protected area (19) and (2) if so, was the officer given leave, explicitly or implicilty, to do so? (20) The majority found that the officers "were gathering information in an area belonging to Jardines and immediately surrounding his house--in the curtilage of the house ... [a]nd they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner." (21) Several lower courts have analyzed dog sniffs on the threshold of apartment doors by utilizing the same two-question approach high-lighed in Jardines.

    1. Was the Information Obtained Within a Constitutionally Protected Area?

      Following Jardines, lower courts have looked anew at the concept of curtilage within multiunit dwellings. Prior to Jardines, the "overwhelming weight of authority rejected] the proposition that a resident of a multi-dwelling residential building can claim curtilage protection in common areas--or even anywhere outside an individual unit." (22) Like all Fourth Amendment questions regarding searches, determining whether a search was conducted within a constitutionally protected area is a fact-specific endeavor, "requiring] [a] consideration of factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself." (23) Although narrowly defined, Hopkins is the most recent example of a lower court finding curtilage within a multiunit dwelling and the highest court to do so to this point. (24)

      Donnell Hopkins rented a townhome in Cedar Rapids, Iowa, that was part of a complex of several "rectangular buildings separated by a grid of streets and sidewalks." (25) Each building has several two-story townhouses on each side with "doors ... arranged in pairs, and walkways lead[ing] from a sidewalk in the central courtyard to a concrete slab in front of each pair of doors." (26) The door to each townhouse was an exterior exit--opening directly to the outside rather than an indoor hallway common to most apartment buildings. (27) A Cedar Rapids officer and his K-9 partner, Marco, approached the townhouse complex at 10:00 pm on a Monday night, upon which Marco was unleashed and allowed to sniff the apartment walls, including the bottoms of the doors. (28) Marco sat in front of Hopkins's apartment door, indicating "that an odor of narcotics was coming from inside." (29) Marco's indication was the basis for a search warrant that was obtained the following day--leading to Hopkins's eventual arrest for possession with intent to distribute controlled substances. (30)

      The Eighth Circuit reviewed Hopkins's appeal from a magistrate's conclusion that the evidence was admissible and the district court's denial of a motion to suppress. (31) The court employed the Jardines two-step "constitutionally protected area" analysis to determine whether the dog sniff was unconstitutional. (32) First, the court determined whether Hopkins's front door and porch constituted a constitutionally protected area, or curtilage.

      In determining whether the contested area was protected curtilage, the court utilized the four-factor test developed in United States v. Dunn. (33) In defining the extent of a home's curtilage, the Dunn Court advocated looking to four factors:

      [1.] the proximity of the area claimed to be curtilage to the home[;]

      [2.] whether the area is included within an enclosure surrounding the home[;]

      [3.] the nature of the uses to which the area is put[;] and

      [4.] the steps taken by the resident to protect the area from observation by people passing by. (34)

      The decision of the Hopkins court to use the Dunn factors in its analysis is noteworthy because the Jardines majority "did not apply those factors or even cite Dunn." (33) The Jardines majority opinion may have omitted any reference to Dunn because the front porch of a single-family house was an obvious example of curtilage and "the classic exemplar of an area adjacent to the home and 'to which the activity of home life extends.'" (36) Despite the Jardines majority's relunctance to employ the Dunn factors, lower courts have frequently cited and relied heavily upon those factors in determining whether curtilage exists within multiunit dwellings.

      Because the Dunn factors were originally developed when considering the curtilage designation of a barn, (37) there are real questions regarding the factors' applicability to urban settings. While the curtilage boundaries of single-family detached homes may be as easily defined as the Jardines majority envisions, (38) the task is not as clear for the "majority of modern Americans ... [who] live in urban and quasiurban (suburban) areas." (39) Lower courts look to the Dunn factors when grappling with whether multiunit dwellings have curtilage because "[t]he leading Supreme Court cases delineating the modern scope of the curtilage doctrine ... largely leave unanswered the questions of whether curtilage exists in these urban contexts, and if so, what the scope of urban curtilage is." (40) While many of these evaluations have yielded familiar answers--that common areas, such as apartment hallways, are not curtilage--some court applications of the Dunn factors have led to findings of curtilage in multiunit dwellings.

      In Lindsey v. State, (41) the Maryland Court of Special Appeals found that applying the Dunn factors did not reveal the area outside of an apartment door to be curtilage. Other than proximity, the Lindsey court concluded the other Dunn factors did not indicate the area was...

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