Pubdate: Mon, 04 Apr 2016
Source: Middletown Press, The (CT)
Copyright: 2016 The Middletown Press
Author: Tejas Bhatt,
Note: Tejas Bhatt is a public defender in New Haven. The views in 
this column are his alone and do not reflect those of the Division of 
Public Defender Services. Nothing in this column should be construed 
as legal advice.


Should police be permitted to use a drug-sniffing dog to roam the 
hallways of an apartment or condominium complex to search for 
contraband without getting a warrant from a judge? That is the 
question confronted by the state supreme court this week in a case 
called State v. Dennis Kono.

Hiding underneath that are several other considerations of 
importance: should the police's power to search a person's residence 
be any different depending on whether the residence is an apartment, 
condominium or free-standing house; and should the search for 
contraband outweigh any Fourth Amendment rights we have as citizens?

It's important to note that case is about the question of whether 
police required a warrant before using the drug-sniffing dog to 
search the hallway and the defendant's apartment.

The Home is First Among Equals

The Fourth Amendment protects "persons, houses, papers, and effects." 
The United States Supreme Court has repeatedly asserted that a 
person's home is "first among equals":

At the Amendment's 'very core' stands 'the right of a man to retreat 
into his own home and there be free from unreasonable governmental 
intrusion.' Silverman v. United States, 365 U.S. 505, 511 (1961).

Thus, the home and the "curtilage" - the area immediately surrounding 
and associated with the home, are revered in Fourth Amendment law. If 
the search by the drugsniffing dog in Dennis Kono's case had been 
conducted at the door to his free-standing home, or on the porch of 
that home, the case would be an easy one: It would be controlled by 
the United States Supreme Court's decision in Florida v. Jardines.

In that case, after receiving an unverified tip that marijuana was 
being grown at that residence, police walked up to the front porch of 
a home, with a drug-sniffing dog, and after the dog alerted to the 
presence of narcotics by sniffing at the door, they obtained a 
warrant to search the home and ultimately found marijuana.

In Dennis Kono's case, the facts are identical: there was a tip, 
police obtained entry into the apartment building legally and the 
drug-sniffing dog alerted to his apartment after sniffing at the front door.

The only difference in the two cases is that Jardines lived in a 
standalone home and Kono lived in an apartment building. So the 
question becomes: is that distinction significant and should it be?

Trespass v. Reasonable Expectation of Privacy

There are two theories of a search of a home in Fourth Amendment law: 
a search can be illegal because the police conduct is a "physical 
trespass" - an unlicensed physical intrusion, or it is a search that 
violates a reasonable expectation of privacy that we, as a society, 
have recognized in a place or an object.

Certainly, police have the right to walk up to anyone's door: whether 
it be in a condominium, or a free-standing house. They have the right 
to knock on that door, and if you answer, to ask you questions within 
limits. But, the United States Supreme Court has held, when on that 
"curtilage," the police may not use a drugsniffing dog to conduct a 
search absent a warrant. The Court has also said that we have a 
reasonable expectation of privacy in what we do in the privacy of our 
homes and police cannot use technology, like thermal imaging, to peer 
inside without a warrant.

So that requires our supreme court to answer: where does the 
"curtilage" of an apartment begin? Is there such a thing? A common 
hallway is, by definition, common and lots of people have access to 
the hallway: other tenants, guests, maintenance workers, sometimes 
even mailmen and delivery workers. So why should the police not be 
permitted to stand in that common hallway and do what they please? 
Are they "trespassing" on any property of the apartment owner? If 
there is no "curtilage" of the apartment in that hallway, there is no 
"trespass" and under the first theory, the warrantless search would 
be legal. If we don't have an expectation of privacy in the area just 
outside the door to an apartment, there is no illegal search under 
the second theory.

Both of the state's arguments, in my opinion, must fail: we not only 
associate some portion of a common hallway with the apartment 
immediately adjacent - newspapers and packages are often left right 
outside the door - but we also have some expectation of privacy that 
people don't stand outside the door and listen in, or we certainly 
wouldn't expect a police officer to lie flat on the hallway and peer 
under the door.

But here's where the policy question comes in: should we hold that an 
apartment is per se a different type of home than a free-standing 
house? Should we alter the protections our Constitution gives us 
based on income? One does not need to be a policy expert and social 
justice crusader to envision that a less than scrupulous police 
department might use such a decision to routinely deploy drugsniffing 
dogs in the hallways of housing projects and apartment buildings in 
low-income areas - those that are already designated "high crime." 
Such a ruling might further permit our police forces to unfairly 
target those in urban cities and poorer communities. From a policy 
perspective, it would seem that there is no benefit societally to 
permitting the Fourth Amendment to be applied differently based on 
the type of residence.

Should Anyone Have A Right To Privacy In Contraband?

The other argument put forth by the prosecution - and one that some 
of the Justices seemed to agree was more interesting - was that 
people don't have the right to an expectation of privacy in 
contraband. This argument stems from two separate U.S. Supreme Court 
cases: Illinois v. Caballes and United States v. Place. In both those 
cases, the Court said that people don't have a reasonable expectation 
of privacy in contraband. In Caballes, the search was of a vehicle 
and in Place, a bag at an airport.

The argument is appealing, but ultimately must fail. The appeal is 
simple: contraband and illegal items should not be protected from 
detection by law enforcement. No one should expect that they have a 
right to keep contraband secret from the world and the drug-sniffing 
dogs only detect contraband, so their use should not be proscribed by 
the Fourth Amendment.

The problem with this argument, of course, is that such 
determinations can only be made after the search has been conducted 
and the contraband seized. The Fourth Amendment should always be 
construed to protect people and places: so the privacy expectation 
isn't in the contraband, but in the house in which the contraband is 
stored. It is this critical distinction which should lead to the 
failure of the prosecution's position. The use of the drugsniffing 
dog invades the privacy protection in one's home, because it allows 
law enforcement to pierce through the walls of the home without a 
warrant. This is why the cases of Caballes and Place are not 
applicable: they involved searches in public, where we have 
diminished expectations of privacy. The privacy expectations in the 
home should be sacrosanct.

Otherwise, we would permit law enforcement officers to walk up to 
doors and peer through the cracks without problem. That's certainly a 
policy we wouldn't want to endorse. What our supreme court will do 
remains to be seen, but it is sure to be a decision that will impact 
the limits of lawful policing for years to come, especially since 
technology will only make it easier for police to pierce the physical 
boundaries of a home without any actual physical intrusions.
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