The police used a drug dog to sniff defendant’s apartment door at 3:20 am. That led to a search warrant and a search of the apartment. Then Jardines was decided, and defendant moved to suppress which was granted. The court of appeals affirmed because Jardines deals with the “home,” and it isn’t limited to a “house.” The state’s effort to use the Davis good faith exception is rejected because there was no binding authority saying it was lawful. People v. Burns, 2015 IL App (4th) 140006, 2015 Ill. App. LEXIS 62 (January 30, 2015):
[*P38] 2. Jardines’ Property-Based Rationale Applies
[*P39] The State argues Jardines is distinguishable because defendant resides in a multiunit apartment building and not a single-family residence. The Supreme Court has generally “eschewed” bright-line rules when it comes to the fourth amendment (Ohio v. Robinette, 519 U.S. 33, 39 (1996)) and the State’s argument the Court developed such a bright-line rule in Jardines is unpersuasive.
[*P42] In Jardines, the Court again referred to the generic “home” when it declared, “the home is first among equals” when it comes to the fourth amendment. Jardines, 569 U.S. at __, 133 S. Ct. at 1414. The reasoning behind the Court’s use of a generic term when discussing the scope of the fourth amendment is obvious: homes come in different shapes, sizes, and forms. Some homes afford greater privacy from prying eyes (and noses) than others. One individual may live on a vast estate secluded from the public while another may live in a high-rise apartment building in the middle of a busy city. The fourth amendment protects both individuals’ right “‘to retreat into his own home and there be free from unreasonable governmental intrusion.'” Id. at __, 133 S. Ct. at 1414 (quoting Silverman, 365 U.S. at 511).
[*P43] The fourth amendment protects more than the physical dimensions of a house—it also protects the area “‘immediately surrounding and associated with the home.'” Id. at __, 133 S. Ct. at 1414 (quoting Oliver, 466 U.S. at 180). This area is referred to as the curtilage. The boundaries of the curtilage are easily understood from daily experience and include all the home’s physical branches. Id. at __, 133 S. Ct. at 1415 (quoting Oliver, 466 U.S. at 182 n.12). This court specifically requested the State to analyze this case using Jardines’ property-based rationale, i.e., elaborate on its assertion there was no invasion of the curtilage. The State persisted in its argument there was no violation of defendant’s property rights and asserted “it is well established that apartment dwellers have no reasonable expectation of privacy as to the common areas of the apartment building.”
[*P44] This is not the appropriate analysis for determining whether the police conduct has occurred within the curtilage. See United States v. Dunn, 480 U.S. 294, 301 (1987) (providing four factors to consider when analyzing whether a particular area is part of the curtilage). In Jardines, there was no question the officers entered the curtilage because the front porch is a “classic exemplar” of the curtilage. Jardines, 569 U.S. at __, 133 S. Ct. at 1415. Defendant does not have a front porch outside her apartment door. She has a landing. This distinction is unimportant and we need not decide whether this landing is included within defendant’s apartment’s curtilage. Compare McClintock, 405 S.W.3d at 284 (concluding the landing outside the apartment’s front door was part of the curtilage), and State v. Nguyen, 2013 ND 252, ¶ 13, 841 N.W.2d 676 (concluding a common hallway was not within the curtilage). The answer is much simpler. The plain holding of Jardines applies to “[t]he government’s use of trained police dogs to investigate the home and its immediate surroundings.” Jardines, 569 U.S. at __, 133 S. Ct. at 1417-18. A home’s front door is part of the “home and its immediate surroundings.” See Payton, 445 U.S. at 590 (stating the fourth amendment has “drawn a firm line at the entrance to the house,” one which cannot be reasonably crossed without a warrant); United States v. Santana, 427 U.S. 38, 42 (1976) (“under the common law of property the threshold of one’s dwelling is ‘private'”).
[*P45] In Jardines, the Court noted an individual’s right to retreat within his or her home would have “little practical value” if the police “could stand in a home’s porch or side garden and trawl for evidence with impunity” and this right “would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window.” Jardines, 569 U.S. at __, 133 S. Ct. at 1414. It reasons that if the police cannot stand outside the front window and trawl for evidence about the contents of the home, then they cannot stand immediately outside the front door and do the same thing. When the police stood at the entrance to defendant’s apartment with a drug-detection dog, their investigation took place in a constitutionally protected area. Further supporting this conclusion is the fact the entrances to defendant’s apartment building were locked every time the police attempted to enter defendant’s apartment building and the officers were admitted by a resident or another officer. The entrance to defendant’s home was not located on a public thoroughfare but rather behind a locked door. This is not a circumstance where the police and drug-detection dog were walking down a public sidewalk or corridor and the dog alerted to the presence of drugs. See id. at __, 133 S. Ct. at 1426 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer Click for Enhanced Coverage Linking Searches, JJ.). The question now turns to whether the police could have approached defendant’s front door with a drug-detection dog at 3:20 a.m.
[*P46] In Jardines, the Supreme Court noted there is an implicit invitation for a “visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” Id. at __, 133 S. Ct. at 1415. There is no customary invitation for someone—including a police officer—to “march[] his bloodhound” up to someone’s home to “engage in canine forensic investigation” and use a drug-detection dog “to explore the area around the home in hopes of discovering incriminating evidence.” Id. at __, 133 S. Ct. at 1416. Nor is there an implicit invitation for “a visitor [to] come to the front door in the middle of the night.” Id. at __, 133 S. Ct. at 1422 (Alito, J., dissenting, joined by Roberts, C.J., and Kennedy and Breyer Click for Enhanced Coverage Linking Searches, JJ.); id. at __ n.3, 133 S. Ct. at 1416 n.3 (agreeing). In this case, the police not only approached defendant’s front door with a drug-detection dog to engage in an investigation of her home, they did so in the middle of the night. As Jardines makes clear, there is no implicit invitation for the police to do this and the officers in this case could not approach defendant’s front door, absent a warrant, with a drug-detection dog to conduct a search of the contents her home.
[*P47] 3. The State’s Argument Defendant Did Not Have a Reasonable Expectation of Privacy in the Apartment Building’s Common Areas
[*P48] The State argues Jardines does not apply because defendant could not have a reasonable expectation of privacy in her apartment building’s common areas. It contends Jardines “clearly demonstrated” the reasonable-expectation-of-privacy test from Katz is to be used in determining the “propriety of police conduct in approaching an individual’s home.” As discussed above, Jardines reiterated Katz’s reasonable-expectation-of-privacy test adds to the fourth amendment’s property-based protections, it does not subtract from those protections.
[*P49] In this case, defendant argues the use of a drug-detection dog to sniff her front door violated the fourth amendment as held in Jardines. We have used the property-based analysis used in Jardines to resolve this case. We need not consider whether defendant had a reasonable expectation of privacy in the common areas of the apartment building because this question is “unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas.” Jardines, 569 U.S. at __, 133 S. Ct. at 1417.
[*P50] E. Does Jardines Require Suppression?
[*P51] The State concedes Jardines applies retroactively to defendant’s case as it was not yet final at the time Jardines was decided (see Griffith, 479 U.S. at 328), but argues suppression of the evidence recovered pursuant to the search warrant is not required. The State asserts the good-faith exception to the exclusionary rule applies because the police acted in good-faith reliance upon established law existing at the time of the search. It also argues the evidence seized pursuant to the search warrant may still be admitted because the lawfully obtained information in the warrant application amounted to probable cause.
