Who Let the Dogs Out? Sniffing Out the Fourth Amendment

Background

The Fourth Amendment

The Fourth Amendment protects people from unreasonable searches and seizures. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In Katz v. United States, the Fourth Amendment was expanded to protect an individual’s right to privacy. Since then, a two-prong test was implemented in Smith v. Maryland to determine if the Fourth Amendment was applicable. Fourth Amendment rights are granted if:

  1. a person “has exhibited an actual (subjective) expectation of privacy” AND
  2. society is prepared to recognize that this expectation is (objectively) reasonable.

Now, how do we apply the Fourth Amendment to tenants who live in apartment buildings with common areas?

The Split

Five circuits have held that tenants do not have a reasonable expectation of privacy in the common areas of their apartments. The circuits reason that the common areas of apartments are open to people beyond the control of the tenants. This includes delivery people, repair services, and visitors of other tenants.

The Sixth Circuit is the only circuit that holds it is reasonable for tenants to expect privacy in the common areas of their apartments. The Sixth Circuit agrees that people beyond the tenants control will enter the common area, but there is an actual expectation of privacy from the general public or trespassers.

“I thought this article was going to be about dogs. I only read this for the dogs. Where are the dogs?”

The Seventh Circuit is one of the five circuits that held that tenants do not have a reasonable right to privacy in common areas of their apartments United States v. Concepcion.

However, the Seventh Circuit held in a recent decision, United States v. Whitaker, that the use of a drug sniffing dog in a common hallway, lead to a tenant’s door, is a ‘search’. The Seventh Circuit cited Justice Kagan’s concurrence in Florida v. Jardines. A drug sniffing dog is considered to be a super sensitive instrument that has the ability to detect objects and activities that are “not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and requires a warrant.”

The Seventh Circuit was very careful to define that the tenant in Whitaker did not have a reasonable expectation of privacy in the common area, but held that a drug-sniffing dog comparable to a sensitive device is not a reasonable expectation for the tenant. Here, a drug sniffing dog resulted in an unreasonable search by the government in violation of the Fourth Amendment.

Looking Forward

The Fourth Amendment strives to protect the privacy interests of individuals against illegal searches and seizures. The true spilt comes from a lack of clarity in terms of what is considered a reasonable expectation. Until there is clarity regarding a reasonable expectation of privacy, the Circuit Courts will just be chasing their own tails.