TX: Jardines applies to apartments

“In this case, we are asked to decide whether it constitutes a search within the meaning of the Fourth Amendment for law-enforcement officers to bring a trained drug-detection dog directly up to the front door of an apartment-home for the purpose of conducting a canine-narcotics sniff. We hold that it does. Consistent with the reasoning of the Supreme Court’s opinion in Florida v. Jardines, we conclude that the officers’ use of a dog sniff at the front door of the apartment-home of Michael Eric Rendon, appellee, resulted in a physical intrusion into the curtilage that exceeded the scope of any express or implied license, thereby constituting a warrantless search in violation of the Fourth Amendment. We, therefore, affirm the judgment of the court of appeals, which had affirmed the trial court’s rulings granting appellee’s motions to suppress. See State v. Rendon, Nos. 13-13-00665-CR, 13-13-00666-CR, 2014 Tex. App. LEXIS 12936, 2014 WL 6881630 (Tex. App.-Corpus Christi Dec. 4, 2014).” State v. Rendon, 2015 Tex. Crim. App. LEXIS 1413 (Dec. 16, 2015) (concur; dissent):

As was the case in Jardines, given our conclusion that the officers physically intruded into the curtilage of appellee’s home for the purpose of gathering evidence, we need not decide whether the officers’ conduct in this case also violated his expectation of privacy, which might be an alternative basis for upholding the judgment of the court of appeals. See Jardines, 133 S. Ct. at 1414, 1417 (citing Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), and explaining that, given the officers’ physical intrusion on a constitutionally protected area, the Court “need not decide whether the officers’ investigation of Jardines’ home violated his expectation of privacy under Katz”; “though Katz may add to the baseline, it does not subtract anything from the Amendment’s protections when the Government does engage in [a] physical intrusion of a constitutionally protected area”) (citations and quotation marks omitted). Furthermore, we do not reach the question whether the immediate area beyond the threshold of the door of an apartment-home, such as a private or semi-private landing or porch to an apartment may be considered part of the curtilage of the home, although we note that courts have determined that the “common areas” of an apartment complex are outside the curtilage. See, e.g., Evans v. State, 995 S.W.2d 284, 286 (Tex. App.—Houston [14th Dist.] 1999) (distinguishing between defendant’s apartment and the “common areas of the apartment complex,” and observing that “[c]learly, the common areas [the defendant] complains of were not the curtilage of her apartment”); United States v. Diehl, 276 F.3d 32, 39 (1st Cir. 2002) (observing that, “[i]n a modern urban multifamily apartment house, the area within the ‘curtilage’ is necessarily much more limited than in the case of a rural dwelling subject to one owner’s control”) (citing United States v. Arboleda, 633 F.2d 985, 992 (2d Cir. 1980)). We leave these more difficult questions for another day.