CA7: Jardines has to apply to dog sniffs in apartment complexes

Use of a drug dog in an apartment building violated Jardines. The court can’t find any other conclusion because people of color and lower economic means are more likely to live in apartments. Kyllo was sufficiently clear on this that good faith doesn’t apply. United States v. Whitaker, 2016 U.S. App. LEXIS 6655 (7th Cir. April 12, 2016):

The practical effects of Jardines also weigh in favor of applying its holding to dog sniffs at doors in closed apartment hallways. Distinguishing Jardines based on the differences between the front porch of a stand-alone house and the closed hallways of an apartment building draws arbitrary lines.

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?

Second, a strict apartment versus single-family house distinction is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity. For example, according to the Census’s American Housing Survey for 2013, 67.8% of house-holds composed solely of whites live in one-unit detached houses. For households solely composed of blacks, that number dropped to 47.2%. And for Hispanic households, that number was 52.1%. The percentage of households that live in single-unit, detached houses consistently rises with income. At the low end, 40.9% of households that earned less than $10,000 lived in single-unit, detached houses, and, at the high end, 84% of households that earned more than $120,000 did so. See United States Census Bureau, American Housing Survey, Table Creator, http://sasweb.ssd.census.gov/ahs/ahstablecreator.html (allowing the breakdown of housing type by race and income).

The police engaged in a warrantless search within the meaning of the Fourth Amendment when they had a drug-sniffing dog come to the door of the apartment and search for the scent of illegal drugs.

There’s a conflict in the circuits. See WaPo: Use of a drug-sniffing dog at an apartment door is a ‘search,’ 7th Circuit holds by Orin Kerr.