Supreme Court Has The Chance To Extend Fourth Amendment Protections To Apartment Residents

from the let's-hope-they-do dept

If all goes well, we may end up with a little more Fourth Amendment here in the USA. The Supreme Court is currently considering reviewing a case that will more clearly define what Fourth Amendment implications cops' four-legged friends bring to the (search) party.

A Minnesota state supreme court case (Edstrom v. Minnesota [PDF]) dealing with a K-9's door sniff in an apartment hallway is up for review by the nation's highest court. The state court found in favor of the government, stating that a K-9 sniff only needs reasonable suspicion to comply with the Fourth Amendment and state's own Constitution.

Should we expect a higher standard for dog sniffs? One would think so, considering cops already refer to K-9s as "probable cause on four legs." The Supreme Court recognized in the Rodriguez decision that artificially prolonging pretextual traffic stops solely for the purpose of developing probable cause -- in many cases waiting for a drug dog to arrive at the stop -- violated the Fourth Amendment.

More captive audiences -- residents in their own homes -- shouldn't be treated to a lower standard just because they're never technically "free to go." An apartment resident can't demand officers leave publicly-accessible areas and they certainly can't just pack up their place and leave just because law enforcement doesn't have probable cause to perform a search. But officers can troll hallways with drug dogs based on only the hunch that something illegal may be occurring out of sight.

Drug dogs are trained to do only one thing: detect the odor of drugs. When they alert, officers then have probable cause to effect a search of residence. Limited searches then can be performed without a warrant under the theory that evidence may be destroyed if the residence is not secured while a warrant is obtained.

The home is supposed to be afforded the utmost in Fourth Amendment protections. But when a drug dog is involved, much of that heightened protection dissipates, replaced with non-verbal statements from an animal that can easily be triggered by nothing more than the dog's desire to please its handler. You can't cross-examine a dog to determine its trustworthiness or state of mind. All you can do is hope there's enough failure on the record to call into question the sniff's veracity and that sort of evidence is almost impossible to obtain.

Whether or not the Supreme Court decides to take this case largely depends on how the justices feel about the Jardines decision. In 2013, the Court ruled that taking a drug dog onto a person's porch to sniff for drugs was a search under the Fourth Amendment. But a lot of that reasoning relies on the definition of curtilage. For distinct homes, the privacy begins at the end of the driveway -- something further defined in 2018's Collins decision. In that case, the court held that the Fourth Amendment was violated when the officer entered an open carport to look at an allegedly stolen motorcycle.

But curtilage isn't so easily defined in shared spaces like apartment buildings. Officers can traverse halls just like residents can, provided the common spaces aren't otherwise secured with keypads or card entry. And if they can be in the hall, they can certainly take their dogs in with them. This is gray area the court hasn't directly addressed, and if it refuses to do so in this case, it allows the Fourth Amendment to be applied unequally. Zero protection for common areas that provide access to residents' doors (and their residences beyond) makes the Fourth Amendment a rich (or richer) man's protection, leaving those unable to purchase or rent their own home subject to the whims of police officers and their dogs.

Filed Under: 4th amendment, apartments, edstrom, renters, supreme court


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 25 Jan 2019 @ 3:35am

    This article is about law, not technology.

    He should call the blog LawDirt.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 25 Jan 2019 @ 3:44am

      Re:

      Go read a different blog, then. This one is under no obligation to make you happy by writing about what you want it to write about.

      reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 25 Jan 2019 @ 4:27am

      Re: "Lawdirt"

      Where do dogs tend to dig?

      Besides, the dogs are being used AS technology. Unfortunately, it seems every false positive is passed off as the "guilty" engaged in "evidence spoliation", but the dog "correctly" identified the "residue" in any case.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 25 Jan 2019 @ 5:04am

      Re:

      So, are you too dumb to understand that a site can cover more than one topic, dumb enough to think that a site can only cover stories implied by their name or just obsessive-compulsive enough that you have to comment on every story?

      Quick - the New York Times has stories about things that didn't happen in New York - let them know this is unacceptable, post haste!

      reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 25 Jan 2019 @ 6:26am

      Re: Dirt

      It's "Tech Dirt". What is dirtier than law?

      Please share your website with the real hard hitting stories you wrote so that we can see what real journalism looks like?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jan 2019 @ 1:51pm

      Re:

      By that logic you should change you name to fuckwit.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2019 @ 3:42am

    Tough call, since people have the option of not living in apartments.

    reply to this | link to this | view in chronology ]

    • identicon
      Bobvious, 25 Jan 2019 @ 4:36am

      Re:

      Almost exactly the same way that they have unfettered access to the richest field of competition in the choice of ISPs. Major US companies are literally sending themselves bankrupt clamouring for your dollar in an overcrowded unlimited-download-quantity, absolutely throttling and cap-free, no-installation or maintenance cost, retail environment, using the latest bleeding-edge technology, updated at least 3 times a year to provide seamless and buffering-free data and visual content, guaranteed to be ad-free, inclusive of ALL major sports, of EVERY variety.

      And all backed up by unanimous decision of SCOTUS, for ever!

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jan 2019 @ 4:54am

      Re:

      Capability of affording a down payment and mortgage shouldn't derive you of your fourth amendment rights.

      reply to this | link to this | view in chronology ]

      • icon
        Bamboo Harvester (profile), 25 Jan 2019 @ 5:19am

        Re: Re:

        In NY, a Renter's "property rights" begins at their door. Hallways are considered Communal Property.

        If you need a key or code to enter the building itself, law enforcement needs permission from the owner or serve a Warrant on the building owner, property manager, or building supervisor to gain entry.

        The "end of driveway" rule doesn't apply (unless the driveway entry is gated and needs a key/card/code) because it's considered semi-public access.

        While the entire point of your post was snark, unless you're in an urban area, mortgage payments are much lower than rent payments.

        reply to this | link to this | view in chronology ]

        • identicon
          Drunk Uncle Sam, 25 Jan 2019 @ 6:54am

          Re: Re: Re:

          In NY they stop and frisk anyone, they do not even have to have a reason.

          Some places strip search 12 year olds for no apparent reason.

          Just because it happens does not make it acceptable.

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Jan 2019 @ 7:22am

          Re: Re: Re:

          Hallways are considered Communal Property

          Are they really? Or is it "communal property of the residents of the building?" Because while certainly the building's residents can freely wander around and hang out in the hallways, it is a rare apartment building which allows random members of the public to do the same. In most apartment buildings, the public isn't allowed freely into the building (and certainly have no communal property rights to it), rather they are allowed to enter for the purposes of attempting to meet with, or make deliveries to, specific residents (sometimes general residents, though most prohibit soliciting), or in some cases to make use of specific areas.

          Which sounds oddly similar to the driveway and front porch, where members of the public may enter those areas to attempt to meet with the resident, or to drop off items/deliveries, but may not otherwise make use of them or extend their use past the point needed for those purposes. It's even more interesting, since the most common legal use of "communal property" is in reference to ownership of property obtained by married individuals. As such, a large percentage of homes containing porches and driveways are "communal property" in most states.

          As for mortgage payments, while it's true they are generally cheaper, it's also true that they require somebody to offer you a mortgage which will require a down payment. So it's technically that "people with poor credit and/or low savings" should be deprived of fourth amendment rights.

          reply to this | link to this | view in chronology ]

          • icon
            Bamboo Harvester (profile), 25 Jan 2019 @ 9:24am

            Re: Re: Re: Re:

            Hallways are considered Communal Property

            Are they really? Or is it "communal property of the residents of the building?"

            The latter - that's what Communal means.

            You seem to be confusing the term with Public and Semi-Public.

            IF entrance to the building itself doesn't require a key or passcode, they're considered Semi-Public areas. People with a valid reason for being there - mail, packages, missionaries, girl scouts selling cookies, etc - can't be (easily) arrested for Trespass.

            If the building entrance requires a key or code, permission/warrant served to whoever is responsible for the building is required for law enforcement to enter, and the mail, girl scouts, etc can't enter the building legally.

            What about this is confusing you?

            As to mortgages, I specified non-urban. I'm not going to charge less for rent than I have to pay in taxes, mortgage, etc.

            Yeah, you can't get a mortgage without a down payment. You get the down payment money via this invention called "work".

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 25 Jan 2019 @ 9:52am

              Re: Re: Re: Re: Re:

              People with a valid reason for being there - mail, packages, missionaries, girl scouts selling cookies, etc - can't be (easily) arrested for Trespass.

              Of that group, only USPS has special legal access. (Also: politicians inevitably vote to give themselves access for campaigning.) Private couriers have to be let in by someone. Missionaries and cookie-sellers who don't live in the building are likely trespassing, especially if there's a "no solitication" sign, and just happening to get away with it.

              The police don't have special access either, but there's the problem that there may be hundreds of people with the authority to let them access the hallways. Each resident can let police access the areas the resident can access, which usually includes all hallways on all levels. (Some buildings do have per-floor and/or per-wing keying.)

              reply to this | link to this | view in chronology ]

              • icon
                Bamboo Harvester (profile), 25 Jan 2019 @ 10:08am

                Re: Re: Re: Re: Re: Re:

                I said "valid reason", NOT "special legal access".

                Even, gasp, COPS! can enter Private Property, be it driveway or communal hallway, for quite a few valid reasons - from asking that the music be turned down to a Death Notification.

                "The police don't have special access either, but there's the problem that there may be hundreds of people with the authority to let them access the hallways."

                Sigh. Yup. Fred the Drunk in 206 can hold the door open for the police. But Fred doesn't have the "authority" to let them bring in a K-9 unit to sniff at your door if the building requires a key/code to enter.

                Why the struggle to find special exceptions? The various lines of demarcation have been codified for decades, if not centuries.

                Personally, I agree with the "reliability" of drug dogs - ALL dogs will follow cues from their handler - they're trained and conditioned to do so.

                But in a non-secured building, the apartment door IS the "end of the driveway". (Caveat - in NY. I don't own rental properties in any other states.)

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 25 Jan 2019 @ 11:36am

                  Re: Re: Re: Re: Re: Re: Re:

                  Sigh. Yup. Fred the Drunk in 206 can hold the door open for the police. But Fred doesn't have the "authority" to let them bring in a K-9 unit to sniff at your door if the building requires a key/code to enter.

                  Do you have a reference for this? If Fred's allowed to stand outside your door and sniff, what prevents him from letting the cops do the same? AFAIK, nothing but perhaps a no-pets rule.

                  (The point will be moot if Fred claims he smelled drugs while walking past your door—then the cops would be responding to a complaint.)

                  If the lines were as clear as you say, why would the Supreme Court be involved?

                  reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 25 Jan 2019 @ 11:41am

                  Re: Re: Re: Re: Re: Re: Re:

                  But in a non-secured building, the apartment door IS the "end of the driveway".

                  Are there really rental buildings with enclosed hallways where anyone can just walk in? I've never heard of such a thing, excepting broken locks etc., but I've always lived in cities where everyone locks their doors.

                  reply to this | link to this | view in chronology ]

                  • icon
                    Bamboo Harvester (profile), 25 Jan 2019 @ 11:53am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Cities are different in that you're more likely to find a building with 200 apartments in it than one with four apartments.

                    I'm in a rural-to-suburban area of NY. I have two properties that do NOT have street-level security and several that do - key entry to the building, video/buzzer lock so tenants can let people in. There isn't enough demand for Gated drives (or the money to pay for them) in this particular area to bother with.

                    So, yes, there are a lot of "open access" apartment buildings.

                    In a city, you've also got City-level laws, codes, and regulations that apply. I'm not sure how much authority a Doorman has when it comes to police, but I doubt the cities haven't codified it.

                    But even outside of a city, if you think the laws, codes, and regulations for cops, mail, and girl scouts are a snarl, you should take a look at what they require for the *landlord* to enter any part of the property, the drive, the hallways, and the apartments.

                    reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 25 Jan 2019 @ 1:13pm

              Re: Re: Re: Re: Re:

              Let's perhaps break this down, since we're clearly talking past each other.

              1. Living spaces: the interior of a house, or the interior of an apartment. No member of the public, police, or anyone else can enter unless specifically invited or otherwise allowed for by law (warrant-in-hand, exigent circumstances i.e. firefighters during a fire).

              2. Exterior areas of a house: most areas off-limits to public (grass, landscaping, etc). Driveways, walking paths and porches in the front of the house are exceptions. Unless otherwise notified (e.g. by gating or signs prohibiting access) members of the public can use these to specifically attempt to contact the resident, or to deliver materials to them. USPS has special dispensation to ignore signs if the mailbox is not otherwise accessible. Police can also use these areas to approach the door in an effort to contact the resident (same as members of the public, have slightly greater leeway to ignore signs). However, the Supreme Court ruled that said right to walk to the door does not include the right to bring drug dogs to the door.

              3. Common areas in apartments: Public is not allowed to freely enter these areas. The public can enter in attempts to contact or deliver materials to specific residents (if not barred from doing so by gates or signs). In fact, unless specifically expanded by the landlord, the rights of the public to access apartment building hallways are identical to the rights of the public to access driveways/front porches of a house. Similarly, the police do not have the right to indiscriminately wander the hallways, they can only enter them in order to contact a specific resident.

              The difference between 2 and 3 is only in the treatment of "additional" searches by the police, where in 2 the police's right to approach the door does not include the right to approach it with a dog, whereas in 3 it does. Otherwise, the rights of both the police and the public are identical between 2 and 3. The "end of the driveway" rule doesn't apply not because there is a fundamental difference in the public/private nature of the space, but simply because the court has ruled no drug dogs on porches, but hasn't ruled about drug dogs in hallways.

              reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jan 2019 @ 5:24am

      Re:

      That sounds like Wilbur Ross. Are you wearing $1000 slippers?

      reply to this | link to this | view in chronology ]

    • identicon
      Drunk Uncle Sam, 25 Jan 2019 @ 5:24am

      Re:

      "Tough call, since people have the option of not living in apartments."

      This is true ... some of them choose to live in their vehicles while others select a comfy spot under a bridge. Many of the non-paid federal workers are now making decisions like this. All the while Trump and friends do not understand why these people do not go get a loan or borrow groceries.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Jan 2019 @ 9:54am

        Re: Re:

        This is true ... some of them choose to live in their vehicles while others select a comfy spot under a bridge.

        Both of those will get them harassed by the cops.

        All the while Trump and friends do not understand why these people do not go get a loan or borrow groceries.

        They're not trying to understand; they're not thinking of those people at all, except when getting annoyed at beggars.

        reply to this | link to this | view in chronology ]

  • identicon
    Anon, 25 Jan 2019 @ 5:08am

    Doesn't address the main problem...

    There have been numerous studies showing drug dogs frequently make mistakes, and/or can be influenced by cues from their handler to indicate what the handler wants - to justify a search.

    The article makes a good point - I see a parallel between a private driveway - poen to the postman, the paperboy, door-to-door salesmen, but not legally to police, or to random passers by to peek in your window. Similarly a corridor is semi-private, intended for occupants and those who have explicit or implied invitations, not random public and passers-by. The homeless cannot camp out on your driveway or in your apartment corridor - why should the police have access without a warrant? If they can't search an open carport, why should they be entitled to search an exposed door within a technically private corridor?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2019 @ 6:00am

    Need to fill vacancies at you local private prison?

    Just call in a tip that drug activity is going on at the apartment complex. Cops come with the dogs, the dogs are told which apartments have strong able bodied men and if there are no drugs in the apartment - well the police are there to make sure there are drugs in the apartment, Right?

    A plea deal is offered - vacancy filled.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2019 @ 6:35am

    I have regretfully concluded that Mike Masnick sometimes disagrees with me.

    He has thus, by his own choice, deprived himself of the right to any social, legal, or ethical consideration that a natural human being would have.

    And therefore, all natural human beings must stand up and vituperate!

    ... in, of course, the venue Mike has made freely available to us.

    And no, I am not the only one who believes this! (I'm just the only one who can spell.)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonmylous, 25 Jan 2019 @ 11:33am

      Re:

      So, you can spell but not read? Tim Cushing authored this.
      Tee Aye Emm space See You Ess Haitch (got your back there UK!) Aye Enn Gee.

      Also, are there unnatural human beings? Do they share your opinions too? Do they sit on your shelf and talk to you at night? Are they your only 'real' friends?

      reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 25 Jan 2019 @ 8:41am

    4th

    Only the landed gentry deserves the full protection of the law. Renters obviously have less rights because they have less money. This should be clearly codified.

    And it isn't like the amendments are part of common law, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2019 @ 3:20pm

    Low chance of taking it.

    I don’t see them taking it honestly.
    It’s a communal area. So it’s not afforded the same protections something the apartment itself would. Or even a car really. You could get the dog labeled a search device that’s about it but who knows

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jan 2019 @ 4:18pm

    Clearly, those who live in apt building that share common hallways should prepare the most awful smelling meals they possibly can, and be sure to vent it out into the hallways.

    Garlic works well, as does cabbage. My nose hates those places.

    reply to this | link to this | view in chronology ]


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