Sunday, June 5, 2016

The Fourth Amendment: Not just for wealthy white homeowners

The rule of Florida v. Jardines---that officers conduct a "search" for Fourth Amendment purposes when they use a trained drug-sniffing dog on the front porch of a home---extends to the shared hallway of an apartment complex.

So said the Seventh Circuit in United States v. Whitaker, reversing a district court's denial of the defendant's motion to suppress the fruit of a warrantless dog-sniff.

Two points of interest in Whitaker:

First, the Court emphasized that limiting Jardines to stand-alone houses would be unfair to people who can't or don't live in such houses: "[A] strict apartment versus single-family house distinction is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity."

Second, this warrantless search could not have been in good faith: "[N]o appellate decision specifically authorizes the use of a super-sensitive instrument, a drug-detecting dog, by the police outside an apartment door to investigate the inside of the apartment without a warrant. Therefore, the officer could not reasonably rely on binding appellate precedent, and the good-faith exception does not apply."

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