IL: A dog sniff on the third floor apartment doors of an unlocked building violated Jardines

A dog sniff on the third floor apartment doors of an unlocked building violated Jardines. The sniff occurred two years after Jardines. People v. Bonilla, 2017 IL App (3d) 160457, 2017 Ill. App. LEXIS 380 (June 14, 2017):

[*P17] III. The Effect of Jardines and Burns on the Alleged Search in the Present Case

[*P18] In the present case, although we are mindful of the supreme court’s comment in Burns, we nevertheless conclude that the police officer’s actions constituted a search under the fourth amendment, even though the apartment building involved was unlocked and unsecured. Other than the unlocked status of the building itself (and the time of the search, of which we have no knowledge), the officer’s conduct in the present case was virtually identical to that of the officer in Burns. See id. ¶¶ 7-8. Considering the level of protection that has been afforded to the home in fourth amendment jurisprudence, especially in light of the decisions in Jardines and Burns, we cannot conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building. See Jardines, 569 U.S. at ___, 122 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 24. The fourth amendment draws a firm line at the entrance to the home (Kyllo, 533 U.S. at 40) as the home is first among equals in the protected areas specified in the fourth amendment (Jardines, 569 U.S. at ___, 122 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 24). At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. Jardines, 569 U.S. at ___, 122 S. Ct. at 1414; Burns, 2016 IL 118973, ¶ 24. In providing that protection, the fourth amendment does not differentiate as to the type of home involved. See Chase, supra at 1312. As the trial court noted, to reach the opposite conclusion would be to draw a distinction with an unfair difference. See United States v. Whitaker, 820 F.3d 849, 854 (7th Cir. 2016) (recognizing that to distinguish Jardines based upon the differences between the front porch of a single family home and the closed hallway of an apartment building would be to draw an arbitrary line that would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity); Chase, supra ¶ 15, at 1312 (making a similar statement).

[*P19] Although courts will generally consider the four factors specified in United States v. Dunn, 480 U.S. 294, 301 (1987), in determining whether a particular area constitutes the curtilage of a home (in this case, the front door area of defendant’s apartment), we need not perform an extensive analysis of the Dunn factors in the present case because our analysis here would be only slightly different from the supreme court’s analysis of the Dunn factors in Burns. See Burns, 2016 IL 118973, ¶¶ 34-37. The only difference in this case would be that we would note in our analysis, as we have above, that the apartment building in the present case was unlocked, but we would still reach the same conclusion—that the common-area hallway just outside of defendant’s apartment door constituted curtilage for the purposes of the fourth amendment. That defendant lacked a reasonable expectation of complete privacy in the hallway or that he lacked an absolute right to exclude all others from the hallway does not mean that defendant had no reasonable expectation of privacy against persons in the hallway snooping into his apartment using sensitive devices not available to the general public or that the police could park a trained drug-detection dog directly in front of his apartment door. See Whitaker, 820 F.3d at 853-84. We caution, however, that our ruling here is limited to the facts of this particular case and should not in any way be construed to mean that all apartment common areas constitute curtilage for the purposes of the fourth amendment.

[*P20] In finding that the officer’s actions in this case constituted a fourth amendment search, we reject the State’s assertion that Burns requires a different outcome. While it is true that the court in Burns emphasized the fact that the apartment building in that case was locked, we do not agree that without that fact, the Burns court would have reached the opposite conclusion. The most that we can state is that the Burns court left that exact issue undecided, other than to comment that a situation involving an unlocked and unsecured common area was distinguishable from the facts that were before the court in Burns. See Burns, 2016 IL 118973, ¶ 41.

[*P21] We acknowledge that there is precedent to support the State’s assertion that a person does not have a reasonable expectation of privacy in the common area of an apartment building, that a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as the thermal imaging scan that was condemned in Kyllo. Those same arguments were made by the State in either Jardines or Burns (or both) and were rejected by the courts in those cases. We reject those arguments in this case for the same reasons. …