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The Supreme Court Should Stop Warrantless Drug-Sniffing Dogs

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.”

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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.

12 Comments (Open | Close)

12 Comments To "The Supreme Court Should Stop Warrantless Drug-Sniffing Dogs"

#1 Comment By JeffK On February 7, 2019 @ 1:46 pm

In this video a CA cop gets a drug dog search on a highway in Tennessee.
Title: Expert: Drug dogs frequently wrong.
[1]

4 minutes into video, discusses drug dog test where the dogs triggered 225 times, but there were NO DRUGS in the test area (a church).

Further on, 25 alerts, and 15 cases where there were no drugs found.

Combine unscrupulous cops and bad training with and asset forfeiture and you have a recipe for governmental abuse.

America. Home of the brave. Land of the free. Not so much. Failed war on drugs.

#2 Comment By Chris Mallory On February 7, 2019 @ 3:06 pm

They should not be allowed to walk them around vehicles after a traffic stop either.

These dogs have failure rates from 50-80% in various studies. Flipping a coin would be more accurate.

The dogs are trained to “hit” on command by their handler.

The dogs cannot testify in court and their use should not be allowed to circumvent 4th Amendment protections.

#3 Comment By David R. Burwasser On February 7, 2019 @ 3:16 pm

SCOTUS has been very good on cell phone privacy. But each Justice has a cell phone. How many of them live in apartments?

#4 Comment By Johnb On February 7, 2019 @ 5:17 pm

Far worse is when police sic a dog on someone or just lose control of the dog and the victim is charged for injuring the dog or defending himself against the dog. It is symbolic of just how much we have descended into serfdom when it is a crime to defend yourself against a wild animal, even if you’re guilty of something serious, when that animal is owned by our overlords. Plus it’s a nice way to torture someone without all the possible legal blowback if you used, say, a board studded with nails. I’m not against the use of dogs, when appropriate, but it is an assault against the basic dignity of man to put the value of the dog above the man and deny him a right to self-defense against the animal.

#5 Comment By EliteCommInc. On February 7, 2019 @ 8:58 pm

excuse my simplicity here, no doubt it will be counted as ignorance or a liberal lean, nonetheless,

Get rid of “probable cause”. If an officer has probable cause he should get a warrant. I love dogs and think they are valuable in helping a police officer in times of conflict – bravo and touche.

However, as previously noted their value and effectiveness in determining “probable cause” has too many misleading cues. Reserved for airports and customs makes sense, but to general policing to probable cause —-

in the name of things conservative and prudent to government power get rid of “probable cause” period.

#6 Comment By Whine Merchant On February 7, 2019 @ 10:11 pm

This type of situation places the amorphous “right” in a quandary:
The GOP of both Trump and St Ronnie worship the militarised state, where the police can do no wrong, while the traditional Conservative has a more small government and individual freedom preference. Since Newt G outlawed compromise, even win-win compromise, the GOP does better when out of office – that way they can be all things to all people, without having to deliver on anything. Remember those two years when the GOP controlled the WH and both houses of Congress? Bestest Health Care in the world, and all the troops came home.

#7 Comment By JeffK On February 8, 2019 @ 6:20 am

When a policeman pulls you over for speeding he/she usually has determines speed using a radar gun. Radar guns have to be calibrated periodically, using defined procedures, by qualified technicians. Calibration records are often part of court proceedings, indicating the radar gun is accurate.

How do you calibrate a drug dog? What are the standard procedures to be used by the handler? What are the qualifications for the handler. How is any of this measured?

To give up constitutional rights to a dog, that cannot be cross examined in court, directed by a handler that may or not be qualified, is a recipe for disaster.

Drug dogs are fine for finding contraband in commercial shipments. For ‘triggering’ on people, cars and houses? No.

#8 Comment By Dan Stewart On February 8, 2019 @ 11:02 am

If SCOTUS actually took the Fourth Amendment seriously, it’s hard to see how the justices wouldn’t conclude that today’s ubiquitous use of drug sniffing dogs, which have a dismal record of accuracy and lend themselves to easy manipulation by police, is an outrageous violation of our protections from unreasonable searches.

#9 Comment By JeffK On February 8, 2019 @ 12:23 pm

@Whine Merchant says:
February 7, 2019 at 10:11 pm

“… GOP does better when out of office – that way they can be all things to all people, without having to deliver on anything. Remember those two years when the GOP controlled the WH and both houses of Congress? Bestest Health Care in the world, and all the troops came home.”

I think you intended to post to another article, but I agree with what you say.

My 88 year old father, who has never voted Democratic in his life, and can find zero wrong with anything Republicans do, admitted to me awhile ago that The Republicans, as a governing party, are hopeless. They deliver nothing but tax cuts for the donors, and court appointments. Other than that, they cannot govern nor legislate. The last 2 years are all of the evidence required to demonstrate this fact.

#10 Comment By Patrick Constantine On February 8, 2019 @ 12:37 pm

Police dogs are largely pet fetish theater. So silly. If this case goes the wrong way it will mean armed govt agents can Park themselves outside an apartment door with a huge vicious dog, menacing and intimidating those inside. The comment above about the robed members of our Secular Sanhedrin (USSC) having cell phones but not apartments is probably the best point of all in predicting the outcome of the case.

#11 Comment By TR On February 8, 2019 @ 7:26 pm

I hate arguments about constitutionality which include obiter dicta about trustworthiness or efficacy of procedures.

But, color me stupid, I had no idea that sniffer dogs were unreliable. In this case thanks for the obiter dicta.

And in any case, I agree with the author. “Get a warrant,” as Justice Scalia said more than once when 4th amendment cases came up.

#12 Comment By MrJ On February 8, 2019 @ 7:28 pm

Well really if you’re a criminal you shouldn’t be allowed to walk on bureaucratic loop holes. Period. No matter what. But we’re stuck in this system of cash and ego. So ending criminal activity like drug dealers requires full digital transparency. I do agree with the statement our political leaders have excessively abused seizure limits and we stopped prosecution of law and persecution of people. It’s a business. They make rank and political accelerated careers. The DoJ is something that needs rebuilding.