MN: Dog sniff at apartment door violates 4A and state const.

A dog sniff at an apartment door violates both the Fourth Amendment and the Minnesota Constitution, considering it under the “privacy rights” analysis of Jardines’s concurrence (also accepted by CA7). Whether it is a house or an apartment, it’s still the home entitled to all the protections of the home. State v. Edstrom, 2017 Minn. App. LEXIS 107 (Sept. 5, 2017):

The Seventh Circuit has similarly applied the privacy-rights analysis, articulated in the Jardines concurrence, to a dog sniff at a door inside a secured apartment building. United States v. Whitaker, 820 F.3d 849, 851-53 (7th Cir. 2016) (concluding that the “use of a drug-sniffing dog here clearly invaded reasonable privacy expectations, as explained in Justice Kagan’s concurring opinion in Jardines,” because the dog is a “super-sensitive instrument” for detecting objects and activities that humans cannot detect); see also State v. Kono, 152 A.3d 1, 15-16 (Conn. 2016) (discussing the Jardines concurrence and Whitaker’s analysis but deciding the issue on state constitutional grounds).

We find the Seventh Circuit’s analysis persuasive. See Mahowald v. Minn. Gas Co., 344 N.W.2d 856, 861 (Minn. 1984) (stating that decisions from foreign jurisdictions are not binding but may be persuasive authority). We also note that the Eighth Circuit declined to address the privacy-rights analysis post-Jardines only because it held that the warrantless use of a narcotics-detection dog at an apartment door was unlawful under the property-rights analysis. See Hopkins, 824 F.3d at 732 (“The Supreme Court did not reach the expectation of privacy test … and we need not rely on Katz … to decide our case ….”).

Relying on Illinois v. Caballes, the state argues that the warrantless use of a narcotics-detection dog was lawful because Edstrom cannot have a legitimate expectation of privacy in contraband. 543 U.S. 405, 408, 125 S. Ct. 834, 837 (2005). We disagree. In Caballes, the United States Supreme Court reasoned that, because a person does not have a legitimate expectation of privacy in contraband, “the use of a well-trained narcotics detection dog—one that does not expose noncontraband items that otherwise would remain hidden from public view—during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Id. at 409, 125 S. Ct. at 838 (quoting United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 2644 (1983) (quotation marks omitted) (concluding police have authority to conduct a “canine sniff” of luggage located in public place based on reasonable suspicion, but that under circumstances of this case the detention was unreasonable)). But in Caballes, the Court was considering the narrow issue of whether reasonable suspicion was required to use a narcotics-detection dog to sniff the exterior of a motor vehicle during a lawful traffic stop supported by probable cause. Id. at 406-07, 125 S. Ct. at 836-37. Caballes does not apply here because “people’s expectations of privacy are much lower in their cars than in their homes.” Jardines, 569 U.S. at ___, 133 S. Ct. at 1419 n.1 (Kagan, J., concurring); see, e.g., Arizona v. Gant, 556 U.S. 332, 345, 129 S. Ct. 1710, 1720 (2009); New York v. Class, 475 U.S. 106, 112-13, 106 S. Ct. 960, 965-66 (1986).

Thus, for purposes of the Fourth Amendment, we conclude that the use of a narcotics-detection dog at an apartment door inside a secured apartment building is unlawful absent a warrant or exception to the warrant requirement.