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Criminal Nuggets

Mar 15, 2018

Episode 464 (Duration 19:10) Here's a quick summary of the cases that suggest, that maybe, houses have more constitutional protection than apartments.

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In This Episode...

We discuss the following cases:

Florida v. Jardines

Florida v. Jardines, 133 S. Ct. at 1409 (2013).

“Property based approach” holds that dog brought to the front step of a single family home constitutes a search. 


The Court considered whether using a drug sniffing dog on a homeowner’s porch to investigate the contents of a home was a “search” within the meaning of the fourth amendment.


Jardines was growing the marijuana in his home.

This case began when police are told he had a growing operation in his home. DEA agent with a sniff dog knock on front door, the dog alerts to presence of drugs, police leave, and comeback with a warrant.

To be clear, the police did not go into the home with the police dog. Before getting the warrant, the officers and the dog remained on the front stoop and only walked on the walkway of the stoop.

Property Rights

The Court stated that pursuant to Katz, “property rights are not the sole measure of Fourth Amendment violations.” The Court stated that the area “immediately surrounding and associated with the home,” known as curtilage, was “part of the home itself for Fourth Amendment purposes.”

The Court then assessed whether the officer’s’ investigation “was accomplished through an unlicensed physical intrusion.” The Court stated that a police officer without a warrant “may approach a home and knock, precisely because that is no more than any private citizen might do.”


Ultimately, the Court found that the use of trained police dogs to investigate a home and its immediate surroundings was a “search” within the meaning of the fourth amendment.

The Court commented that the Fourth Amendment actually uses the word “houses” (also known as your home) then held that: The Amendment establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections:

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has undoubtedly occurred. Jardines, 133 S.Ct. 1409 (2013); quoting United States v. Jones, 565 US 945, 132 S.Ct. 945 (2012) (this is a GPS tracking case).

The police were in his home and on his property in an investigative capacity. They did not have permission to be there.

That was a search.

What About The Other Dog Sniff Cases?

The fact that the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred. Jardines, 133 S.Ct. 1409 (2013).

The Court was well aware of its own case law that said dog sniffs are not searches. However, the Court refused to play the “expectation of a privacy interest” game in this case. Instead, they took a property-based approach.

The House From Jardines In Miami Dade, Florida

Jardines House

People v. Burns

People v. Burns, 2016 IL 118973 (March).

The "no-nights visits" rule is affirmed, can't bring the sniffer dog to your front step for a little sniff.


After receiving a tip that Defendant is selling weed from her apartment, the police bring a dog to her apartment door. The dog alerts to the presence of contraband. The police then go get a warrant.


Which begs the question: does the warrantless use of a drug-detection dog at an apartment door, located within a locked apartment building, in the middle of the night, violate defendant’s fourth amendment rights?

Defendant's Argument

Defendant counters that under Jardines, a search warrant is required to conduct a dog-sniff search at the entrance to a home. Indeed, the problem in Jardines, according to Scalia, was that the cops intruded physically on defendant's property in order to conduct a search.

All the relevant factors pointed to the conclusion that this apartment stoop was part of the curtilage of Defendant's home.

Locked Apartment

The court took special note of the fact that the entrances to the apartment building were locked and the common areas were not open to the general public. The court also found that the landing to the defendant’s apartment was curtilage, noting that the landing was directly in front of the apartment and a clearly marked area within a locked building with limited use and restricted access.

The court stated that the police conduct in the case “certainly exceeded the scope of the license to approach the defendant’s apartment door,” as the officers entered a locked building in the middle of the night and remained in the building for more than a very short period of time.


This intrusion onto her locked front stoop at 3:20 a.m. was declared unconstitutional.

However, Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Was the court apply a strict property-based approach? Exactly when does it apply? Was the dog dispositive? The front door?

People v. Bonilla

People v. Bonilla, 2017 IL App (3d) 160457 (June).

Constitutional violation did not depend on whether the common door to the apartment was locked.


On a tip police bring a dog to an apartment complex in Moline, Illinois. The exterior doors leading into the apartment building common-area hallways were not locked, and there was no lock, pass card, entry system, or anything whatsoever on the closed exterior doors of the apartment building that would prevent any person off the street from entering into the common-area hallways of the apartment building.

More Facts

Once inside the apartment building, the canine officer walked his drug-detection dog down some of the common-area hallways. As the dog came to apartment 304, however, the dog moved back and forth in the doorway, sniffing at the bottom of the door, and signaled a positive alert for the presence of illegal drugs.


The police officers obtained a search warrant for apartment 304 based upon the drug-detection dog’s alert. After obtaining the search warrant, the officers searched the apartment and found a quantity of cannabis and certain other items. Defendant, who lived in apartment 304, was later arrested and charged with unlawful possession of cannabis with intent to deliver.

Property Based Approach

There are two different approaches that a court may be called upon to apply when determining whether a police officer’s actions constitute a search under the fourth amendment— a property-based approach and a privacy-based approach.

If applicable, the property-based approach should be applied first.

There is no need to apply the privacy-based approach if a violation of the fourth amendment has been found under the property-based approach. The property-based approach recognizes a simple baseline of protection that is provided by the fourth amendment as it relates to the property interests specified: that when the government obtains information by physically intruding (trespassing) on a person’s house, papers, or effects, a search within the original meaning of the fourth amendment has undoubtedly occurred.

Was There An Intrusion?

The question a court must ask when applying the property-based approach is whether the police officers intruded (trespassed) upon a constitutionally protected area (one of the protected properties specified in the text of the fourth amendment) to obtain the information in question.

Privacy Based Approach

The privacy-based approach recognizes that property rights are not the sole measurement of the fourth amendment’s protections and that fourth amendment protections also extend to areas in which a person has a reasonable expectation of privacy.

Was There A Reasonable Expectation Of Privacy?

The question a court must ask when applying the privacy based approach is whether the complaining person had a reasonable expectation of privacy in the area invaded (the location or object of the alleged search) by the police.

That is so because the privacy-based approach adds to the fourth amendment protections provided under the property-based approach; it does not diminish those protections and is not a substitute for those protections.

Reexamine Jardines

Prior to the United States Supreme Court’s decision in Jardines, it was generally established that a warrantless police intrusion into a common area of an apartment building did not violate the fourth amendment rights of a defendant tenant.

In Jardines, however, the United States Supreme Court held that a police dog sniff of the front door of a single family home was a search under the fourth amendment. The Supreme Court reached that conclusion, as stated in its majority opinion, by applying a property-based approach to the police officer's’ actions and by finding that the police officers had intruded (trespassed) on the curtilage of the home (the front porch) to gather the information (the alert by the drug detection dog) that was later used as the basis for obtaining a search warrant for the home.

Reexamine Burns

The Illinois Supreme Court later applied the holding of Jardines in the context of a multi unit apartment building in Burns and found that a police dog sniff of the front door of a defendant’s apartment was a search under the fourth amendment because the police officers had intruded on the curtilage (the landing outside of defendant’s apartment door in a locked apartment building) of the defendant’s residence in the middle of the night. Burns, 2016 IL 118973, ¶¶ 32-45.

In reaching that conclusion, the supreme court emphasized that the apartment building where defendant lived was locked and that the common areas of the building were not open to the general public.

This Case

In the present case, although we are mindful of the supreme court’s comment in Burns, we nevertheless conclude that the police officer’s actions constituted a search under the fourth amendment, even though the apartment building involved was unlocked and unsecured.


Other than the unlocked status of the building itself, the officer’s conduct in the present case was virtually identical to that of the officer in Burns. The court could not conclude that a person who lives in an unlocked apartment building is entitled to less fourth amendment protection than a person who lives in a locked apartment building.

The fourth amendment draws a firm line at the entrance to the home as the home is first among equals in the protected areas specified in the fourth amendment. At the very core of the fourth amendment is the right of a person to retreat into his or her own home and there to be free from unreasonable governmental intrusion. In providing that protection, the fourth amendment does not differentiate as to the type of home involved.

Can Ignore Privacy Right Cases

The court acknowledged that there is precedent to support the State’s assertion that a person does not have a reasonable expectation of privacy in the common area of an apartment building, that a dog sniff is not a search under the fourth amendment, and that a dog sniff is not the same as the thermal imaging scan.

Nonetheless, the state’s arguments were rejected based on the above analysis. Do we apply property-based approach to all apartments now?

Does the dog matter?

People v. Martin

People v. Martin, 2017 IL App (1st) 143255 (June).

Constitutional violation depended on whether the 2 story flat was more like a single family home or an apartment building; but this is not a sniff case. 

Drug Deal

Police say they observed a man approach defendant and raise his right index finger, whereupon defendant acknowledged the gesture and entered the main door frame of a two story flat.

The door to was slightly ajar. Defendant stood on the immediate threshold and reached into the door inside of the doorframe. Defendant retrieved a blue plastic bag, manipulated it, and then retrieved a smaller unknown item from the bag. Defendant then placed the bag on top of the door and returned to the man, where he received money from and tendered the small unknown item to the man.

Defendant tendered the money to another male who was standing outside of the house. The man was arrested and he said he just purchased heroin. Police then arrested defendant.

The Search

An officer then reached above the doorframe on the inside of the door and recovered the blue bag.

The items inside the blue bag matched the suspect narcotics that were recovered from the man. The baggies were branded with a bomb logo and said “stay high imagine”. The front door was open, and it emptied into a vestibule or common area that had another door leading into the residence.

The police did not have a warrant. 


The court acquitted defendant of the hand to hand delivery and of possession with intent to deliver but found him guilty of possession of a controlled substance. On appeal defendant challenges the warrantless seizure of the drugs.

Court Takes A Privacy Rights Approach

Under Katz, to claim the protection of the fourth amendment, a person must have exhibited an actual (subjective) expectation of privacy in the place searched or thing seized, and this expectation must be one that society is willing to recognize as “reasonable.”

Jardines Left Things Unsettled

Of note, Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. Although Burns applied Jardines to a multi-unit apartment building, the specific contours of Jardines are unsettled.

Jardines left open the middle ground between traditional apartment buildings and single-family houses, including split-level duplexes, buildings that were converted from houses to apartments, and garden apartments whose doors open directly to the outdoors.

Under both Katz and Jardines, the type of building at issue matters.

Privacy Rights Cases

Illinois courts have found that there is no reasonable expectation of privacy in common areas of apartment buildings that are accessible to others. See People v. Smith, 152 Ill. 2d 229, 245 (1992) (no reasonable expectation of privacy in a conversation that occurred in an apartment building’s unlocked common area that was shared by other tenants, the landlord, their social guests, and other invitees); People v. Carodine, 374 Ill. App. 3d 16, 23 (2007) (the defendant had no reasonable expectation of privacy in the dryer vent of his three-unit apartment building where dryer vent was in a common area that was accessible to the landlord and other members of the general public); People v. Lyles, 332 Ill. App. 3d 1, 7 (2002) (stating that a tenant has no reasonable expectation of privacy in common areas of an apartment building that are accessible to other tenants and their invitees).

Two Story Flat

Here, the State and defendant dispute how to characterize the two story flat, with the State asserting that it is a multi-unit apartment building and defendant contending that it is a single-family home.

Defendant's mother owned the flat, he was a guest there, and the second story was empty. Nobody was living upstairs. The court found that there is a greater expectation of privacy in duplexes owned and occupied by one family. It should be treated as a single-family home for fourth amendment purposes.

This was not a typical multi unit building where numerous tenants and members of the public were expected to enter. Rather, it was viewed as the family home. The court further stated that “a strict apartment versus single-family house distinction” was troubling because it would apportion fourth amendment protections on grounds that correlate with income, race, and ethnicity, citing data showing that a smaller percentage of African-Americans and Hispanics live in one-unit detached houses than whites and that the percentage of households that live in one-unit, detached houses rises with income.


As “the Fourth Amendment has drawn a firm line at the entrance to the house”, the area above the inside door frame was a constitutionally protected area. Further, that area outside the door was akin to a porch, which is a “classic exemplar” of curtilage.

Clearly, the officers’ actions were accomplished through an unlicensed physical intrusion.

Here, the police went up the stairs of the flat reached above the inside door frame, and recovered a blue bag. This was well beyond what an ordinary private citizen could do. Here, the police physically intruded on the inside of the home to gather evidence. That the door was open does not change this result. A private citizen would not think that he could breach the open door of a home and investigate its contents. Any physical invasion of the home’s structure by even a fraction of an inch is too much.


Police exceeded what a private citizen was permitted to do at the front door. The court held that this was a warrantless search under Jardines. Without the suppressed evidence of the narcotics, the State cannot prove that defendant possessed the narcotics and his conviction must be reversed outright. More questions remain?

Would result be different if that was more like an apartment building?

The Two-Story Flat From Martin In Chicago, Illinois

Chicago Two Flat