IL refuses to differentiate between homes and apartment buildings for dog sniffs at the door

IL refuses to differentiate between homes and apartment buildings for dog sniffs at the door because an apartment is still a “house” under the Fourth Amendment, and a different rule is unfair. An apartment dweller’s curtilage is his or her door threshold. People v. Bonilla, 2018 IL 122484, 2018 Ill. LEXIS 1022 (Oct. 18, 2018):

[*P26] As the appellate court acknowledged in this case, “the fourth amendment does not differentiate as to type of home involved.” 2017 IL App (3d) 160457, ¶ 18. We agree with the trial court that “it would just be unfair to say you can’t come up on a person who lives in a single family residence and sniff his door but you can go into someone’s hallway and sniff their door if they happen to live in an apartment. That’s a distinction with an unfair difference.” See also Bonilla, 2017 IL App (3d) 160457, ¶ 18 (“As the trial court noted, to reach the opposite conclusion would be to draw a distinction with an unfair difference.”); and 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 vagaries of the circumstances that decide home ownership or rental property).

[*P27] We conclude that the threshold of the door to defendant’s apartment falls within the curtilage of the home. “Were this court to hold that an apartment uniformly lacks fourth amendment curtilage, we would additionally hold that those who live in apartments have less property-based fourth amendment protection within their homes than those who live in detached housing.” (Emphasis in original.) Burns, 2016 IL 118973, ¶ 96 (Garman, J., specially concurring). Further, the officer’s conduct of using a trained narcotics-detection dog at the threshold of defendant’s apartment for the purpose of detecting contraband inside defendant’s home is the precise activity the Supreme Court condemned in Jardines. See Jardines, 569 U.S. at 11-12 (“The government’s use of trained police dogs to investigate the home and its immediate surroundings is a ‘search’ within the meaning of the Fourth Amendment.”).

[*P28] A recent United States Supreme Court decision supports our decision in this case. The Supreme Court recently reiterated its strong tradition of protection from warrantless searches upon a person’s home or its curtilage in Collins v. Virginia, 584 U.S. __, 138 S. Ct. 1663, 201 L. Ed. 2d 9 (2018): ….