Use of a drug-sniffing dog at an apartment door is a 'search,' 7th Circuit holds

|The Volokh Conspiracy |

Courts are divided on whether a tenant who lives in an apartment building has Fourth Amendment rights in the common areas of the building. On Tuesday, the 7th Circuit handed down a new twist on the problem. The court held that although a tenant does not have Fourth Amendment rights in common areas generally, use of a drug-sniffing dog in the hallway at the tenant's door is a "search." The case is United States v. Whitaker.

First, some context. The 11th Circuit explained the split in the circuit court decisions back in 2002:

Five of the six circuits that have decided the issue have concluded that tenants do not have a reasonable expectation of privacy in the common areas of their apartment building. Of those five decisions, four necessarily suggest that it does not matter whether the door to the apartment building is locked or unlocked at the time law enforcement officers arrive, because in each of those cases the door was locked. See United States v. Nohara, 3 F.3d 1239, 1241-42 (9th Cir. 1993) (apartment hallway); United States v. Concepcion, 942 F.2d 1170, 1171-72 (7th Cir.1991) (apartment common areas); United States v. Barrios-Moriera, 872 F.2d 12, 14-15 (2d Cir.1989) (apartment hallway), overruled on other grounds by Horton v. Cal., 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.1977) (apartment hallway). It is not clear which position the other of those five circuits, the First Circuit, would take on locked door facts, but it has held there is no reasonable expectation of privacy in an apartment building's apparently unlocked parking garage. See United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976). The only circuit that has recognized a reasonable expectation of privacy in the common areas of an apartment building, at least when the door is locked, is the Sixth Circuit. See United States v. Carriger, 541 F.2d 545, 550 (6th Cir.1976) (apartment common areas).

The five circuits holding that there is no reasonable expectation of privacy in the common areas of an apartment building reason that tenants have little control over those areas, which are available for the use of other tenants, friends and visitors of other tenants, the landlord, delivery people, repair workers, sales people, postal carriers and the like. See Nohara, 3 F.3d at 1242; Concepcion, 942 F.2d at 1172; Eisler, 567 at 816; Cruz Pagan, 537 F.2d at 558. The reasonableness of a tenant's privacy expectation in the common areas of a multi-unit apartment building stands in contrast to that of a homeowner regarding the home and its surrounding area, over which the homeowner exercises greater control. See Barrios-Moriera, 872 F.2d at 14; Cruz Pagan, 537 F.2d at 558. The more units in the apartment building, the larger the number of tenants and visitors, workers, delivery people, and others who will have regular access to the common areas, and the less reasonable any expectation of privacy. Whether the door to the building is locked is another relevant consideration.

The Sixth Circuit stands alone in taking the position that it is reasonable for tenants to expect privacy in the common areas of their apartment building, at least when the building is locked. Its reasoning is that while tenants living in a locked building may expect that other tenants or their guests will be in the common areas, it is also reasonable for them to expect that the general public or trespassers (including law enforcement officers) will be excluded. See Carriger, 541 F.2d at 551-52.

The 7th Circuit is one of the five circuits that has held that there are no privacy rights in common areas of an apartment building. Here's Judge Easterbrook writing for the 7th Circuit in United States v. Concepcion:

The area outside one's door lacks anything like the privacy of the area inside. We think the district court on solid ground in holding that a tenant has no reasonable expectation of privacy in the common areas of an apartment building. See United States v. Acevedo, 627 F.2d 68, 69 n. 1 (7th Cir.1980); United States v. Boden, 854 F.2d 983 (7th Cir.1988). See also, e.g., United States v. Holland, 755 F.2d 253 (2d Cir.1985); United States v. Penco, 612 F.2d 19 (2d Cir.1979); United States v. Eisler, 567 F.2d 814 (8th Cir.1977); United States v. Shima, 560 F.2d 1287 (5th Cir.1977) (in banc). To the extent United States v. Rosenberg, 416 F.2d 680 (7th Cir.1969), and United States v. Case, 435 F.2d 766 (7th Cir.1970), imply otherwise, they have not survived changes in the Supreme Court's definition of protected privacy interests.

In the new decision, Whitaker, the 7th Circuit holds that use of drug-sniffing dogs that are walked up to a suspect's door in the common hallway of an apartment building is a search. In an opinion by District Judge Darrah that took a year to come down, the 7th Circuit adopted the reasoning of Justice Kagan's concurring opinion (joined by Justices Ginsburg and Sotomayor) in Florida v. Jardines. In her concurring opinion in Jardines, Kagan had argued that walking a drug-sniffing dog up to the front porch of a private home was a search under the thermal imaging case, Kyllo v. United States. Kagan wrote:

That "firm" and "bright" rule [of Kyllo] governs this case: The police officers here conducted a search because they used a "device … not in general public use" (a trained drug detection dog) to "explore details of the home" (the presence of certain substances) that they would not otherwise have discovered without entering the premises.

It Whitaker, the 7th Circuit adopts the Kagan concurrence and finds it equally applicable to use of a drug-sniffing dog in an apartment building:

The use of a drug-sniffing dog here clearly invaded reasonable privacy expectations, as explained in Justice Kagan's concurring opinion in Jardines. The police in Jardines could reasonably and lawfully walk up to the front door of the house in that case to knock on the door and ask to speak to the residents. The police were not entitled, however, to bring a "super-sensitive instrument" to detect objects and activities that they could not perceive without its help. 133 S. Ct. at 1418. The police could not stand on the front porch and look inside with binoculars or put a stethoscope to the door to listen. Similarly, they could not bring the super-sensitive dog to detect objects or activities inside the home. As Justice Kagan explained, viewed through a privacy lens, Jardines was controlled by Kyllo, which held that police officers conducted a search by using a thermal-imaging device to detect heat emanating from within the home, even without trespassing on the property. 133 S. Ct. at 1419.

Kyllo held that where "the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a 'search' and is presumptively unreasonable without a warrant." 533 U.S. at 40. That rule reflects a concern with leaving "the homeowner at the mercy of … technology that could discern all human activity in the home." Id. at 35-36. A dog search conducted from an apartment hallway comes within this rule's ambit. A trained drug-sniffing dog is a sophisticated sensing device not available to the general public. The dog here detected something (the presence of drugs) that otherwise would have been unknowable without entering the apartment.

The 7th Circuit distinguished its prior holding that there are no privacy rights in hallways as follows:

It is true that Whitaker did not have a reasonable expectation of complete privacy in his apartment hallway. See United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991). 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.

The government then argued that the Davis good-faith exception applied because the officers had relied on 7th Circuit precedent holding there were no Fourth Amendment rights in apartment hallways. According to the 7th Circuit, the good-faith exception did not apply and the evidence of the dog's alert at the door had to be suppressed:

At the time of this search, there was no recognized expectation of privacy in the common areas of a multi-unit apartment building. See United States v. Espinoza, 256 F.3d 718, 723 (holding "tenants lack a legitimate expectation of privacy in the common areas of multi-family buildings"); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (holding "tenant has no reasonable expectation of privacy in the common areas of an apartment building"); Henry v. City of Chicago, 702 F.3d 916 (7th Cir. 2012) ("Absent certain particular facts not alleged here, there is no reasonable expectation of privacy in common areas of multiple dwelling buildings."). However, no appellate decision specifically authorizes the use of a super-sensitive instrument, a drug-detecting dog, by the police outside an apartment door to investigate the inside of the apartment without a warrant. Therefore, the officer could not reasonably rely on binding appellate precedent, and the good-faith exception does not apply.

Moreover, Kyllo was decided before the search of Whitaker's apartment. The logic of Kyllo should have reasonably indicated by the time of this search that a warrantless dog sniff at an apartment door would ordinarily amount to an unreasonable search in violation of the Fourth Amendment.

I find the result in this case plausible, although I have quibbles with the opinion for the Fourth Amendment nerd readers. Notably, the 7th Circuit's analysis rests on the Katz expectation of privacy test rather than the trespass test applied by the majority in Jardines. The court isn't totally clear on why that is. I assume it's because the tenant was thought to have insufficient rights in the building as a whole to claim trespass/physical intrusion rights in the whole building. In any event, the usual way the Katz test works is that a person either does or doesn't have a reasonable expectation of privacy in a particular place. The phrase "reasonable expectation of privacy" is a term of art, so either it exists or doesn't.

In light of that, it seems odd to say that a person lacks a "reasonable expectation of complete privacy" but has a "reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public." The clearer way to reach the court's result would be to simply hold that a person doesn't have a reasonable expectation of privacy in the hallway (as the old cases held) but that a person's reasonable expectation of privacy in his apartment is violated by the use of the drug-sniffing dog to sniff what is inside it. That is, to the extent Kyllo extends to drug-sniffing dogs, the fact that the dog was in the hallway is irrelevant. What matters is that the dog was used to learn facts from inside the apartment that were previously unknowable without physical entry.

I think the court also should have said more about why the good-faith exception doesn't apply in light of 7th Circuit caselaw. Regular readers know that I'm no fan of the Davis exception. But the 7th Circuit appears to be suggesting a narrower view of the good-faith exception than other courts have suggested. The court seems to suggest that Davis applies only if the specific facts of the case had come up before and been allowed then, which is a narrow reading contrary to what other courts have held. Given the uncertainty on Davis and the importance of the question, the sparse analysis wasn't ideal—although I'm confident it will be enough for defense attorneys to use it to argue for a split about Davis in future cert petitions. Time will tell.

NEXT: Beverly Cleary at 100

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