Detector Dog Sniff in Common Hallway Violates Jardines Holding

A confidential informant told detectives about drug dealing at an apartment building. The informant said that the dealer drove a black Cadillac Escalade. A detective met with the property manager and obtained consent for a detector dog sniff in the common areas of the building. The manager allowed the detective and a drug detector dog handler and his dog to enter the locked underground parking area.

The Escalade was parked in the underground garage in the space for apartment 204. The dog showed a change of behavior at the Escalade. The detector dog team then conducted a sniff of the common hallways. The dog initially showed interest at the door of apartment 208. Upon a second sniff, the dog gave a final positive response at the threshold of apartment 204.

Based on this information, detectives obtained a search warrant for apartment 204. During the search, detectives located cocaine, heroin and marijuana in apartment 204. Whitaker was the sole occupant at the time the warrant was executed and he admitted he lived there.

Whitaker challenged the search warrant, relying on Florida v. Jardines (133 S.Ct. 1409 (2013)), in which the Supreme Court held that using a detector dog to investigate a home and its immediate surroundings constituted a search under the Fourth Amendment. The majority opinion in Jardines reached its decision on the express ground that entry onto the home’s curtilage with a detector dog constituted a trespass. Whitaker not only argued that the investigators had trespassed on his curtilage, but he also claimed a basic intrusion on his privacy interests.

In Whitaker’s case, the court held that the Jardines curtilage analysis applied, noting that “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. … [T]he 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. … 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.”

Whitaker cited to Justice Kagan’s concurring opinion in Jardines, in which she was joined by two other justices. Justice Kagan opined that using a “super-sensitive instrument” such as a detector dog was analogous to use of an infrared radar heat detection device held to be a search in Kyllo v. United States (533 U.S. 27 (2001)). The Court of Appeals agreed with Whitaker and applied Justice Kagan’s privacy interest analysis to the use of the detector dog.

The Whitaker decision is significant because it is the first federal appellate court to apply the Jardines ruling to the common area of an apartment building and because the appellate court followed the analysis in the concurring opinion of only three Supreme Court justices. Some state courts have followed a similar path, while others have disagreed that there is either a privacy interest in the smells seeping from an apartment into a common hallway or a curtilage violation. The Whitaker decision suggests that we will see this argument raised more often in the future.

United States v. Whitaker, 2016 WL 1426484 (7th Cir. 2016)

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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