The Fourth Amendment rights of Americans should be protected regardless of where they live. Currently that’s not the case, but the Supreme Court has an opportunity to fix it.
The court is currently considering whether to review a Minnesota Supreme Court ruling, Edstrom v. Minnesota, which held that no search warrant is required for police to bring a narcotics-sniffing dog into an apartment hallway or other “common area.” This ruling applies the Fourth Amendment unevenly, giving stronger protections to those who live in houses than those who live in apartments.
In the 2013 Supreme Court case Florida v. Jardines, the nation’s top court ruled that the warrantless use of a narcotics-sniffing dog on an area “immediately surrounding and associated with the home” had violated the Fourth Amendment. This surrounding area is known as the curtilage.
In Edstrom, Minnesota’s highest court concluded that apartment building hallways do not constitute curtilage in the same way the porch and yard of a house would. Thus, this line of thinking goes, police aren’t required to have a warrant to bring a canine companion into an apartment hallway; all they need is a “reasonable suspicion.” To do the same to a house dweller, they’d have to meet the higher standard of “probable cause.”
Police in the Edstrom case received a tip from an informant that Cortney John Edstrom might have been selling drugs out of his New York City apartment. The informant gave Edstrom’s name, address, and car description to police, who then used car records and the apartment’s registry to determine that both the car and apartment were listed under Edstrom’s name. At that point, they entered the building using a lockbox and went right to the third floor where Edstrom lived. The dog “alerted” them that there were drugs in Edstrom’s apartment, at which point they obtained a warrant and returned to find methamphetamine, scales, marijuana, and firearms.
Barry Friedman, a constitutional scholar and author of Unwarranted: Policing Without Permission, told me that “if the dog sniff outside Jardines’ house violated the Fourth Amendment,” then not ruling the same in the Edstrom case “discriminates against urban dwellers, and likely on a socio-economic basis.”
He’s right. You shouldn’t lose your basic expectation of privacy because you’re a renter instead of a homeowner, or because you live in an urban area instead of a rural one. If it is unconstitutional to go sniffing at the door of a house without a warrant, the same should hold true at the door of an apartment.
Not only does the ruling in Edstrom apply the Fourth Amendment unevenly, it also ignores a crucial Fourth Amendment precedent from the 2001 Supreme Court case Kyllo v. United States. In Kyllo, the court argued that “obtaining by sense-enhancing technology any information regarding the home’s interior that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area’” violates the Fourth Amendment, especially if the technology is “not in general public use.” Certainly drug-sniffing dogs enhance the sense of smell police would normally have, and clearly these dogs are not in “general public use.”
If the Supreme Court takes up this case, the ruling will likely hinge on the definition of curtilage. Does the interior hallway of an apartment count as the area “immediately surrounding and associated with the home”? It most certainly should.
The good news is that the current Supreme Court has been fairly strong on privacy, including with a 2017 landmark digital privacy decision, Carpenter v. United States, which held that collecting past cell phone geolocation data without a warrant violates the Fourth Amendment. In such cases, Justice Neil Gorsuch has frequently joined with the court’s “liberal justices” to protect the expectation of privacy.
Constitutional rights are rights regardless of whether you’re a renter or a homeowner. Hopefully the Supreme Court agrees to take up Edstrom, and fix the uneven application of the Fourth Amendment.
Dan King is a Young Voices contributor, journalist, and digital communications professional based in Arlington, Virginia. His work has appeared at Reason, The American Conservative, The Week, and The Weekly Standard.