The lengthy list of ways that our laws and policies favor single-family residences (and their occupants) over apartments (and tenants) is long and well-known to streets.mn readers. But that list has a significant new entry that has received far less attention. Unless the U.S. Supreme Court intervenes, many Minnesota tenants will enjoy less protection from unreasonable searches than do folks who live in houses. Specifically, if you live in an apartment, police will be able to conduct a sniffer-dog search of your front door even though doing so at a single-family residence is unconstitutional.
The key to understanding this development is something the case law refers to as “curtilage.” The Fourth Amendment bars warrantless searches wherever one has a reasonable expectation of privacy, and the courts have said this includes homes of all types. The courts have also said that for search purposes, a home is not limited to the space inside the four walls. It also includes the area immediately surrounding and associated with the home. This is the curtilage of a home. Curtilage includes areas like a front porch, or the yard between the front door and the sidewalk, or an area near a house where trash cans and recycling bins are kept.
If the police want to search an area within the curtilage—say, look around on a front porch or dig through a trashcan next to the house—a search warrant is required. And this includes searches using things like drug detection dogs. In 2013, the U.S. Supreme Court ruled in Florida v. Jardines that the use of a sniffer dog at the front door of a home was a search that requires a warrant; without one, it is unconstitutional.
Minnesota recently decided that when it comes to curtilage protection, not all homes need to be treated the same way. In last year’s decision in State v. Edstrom,[1] the Minnesota supreme court was presented with a case like Jardines, but this time the front door of the home happened to be a door to an apartment, not a house. The facts of the case were straightforward: acting on an anonymous tip that Edstrom was selling drugs out of his Brooklyn Park apartment, police entered the apartment building and had a dog sniff around Edstrom’s door. The dog signaled the presence of narcotics, and police used this information to obtain a search warrant for the apartment. The subsequent search discovered drugs and other contraband in the apartment, and the trial court ruled that the search was legal and the evidence admissible.
The Minnesota supreme court rejected the argument that Edstrom’s front door was part of the curtilage of his home. According to the court, Edstrom had no expectation of privacy outside of the door of his apartment because it opened onto an interior hallway that was a common area used by other tenants. The court also pointed out that the landlord had equipped the building with a “Knox Box” that contained a key that police could use to enter the building at any time. The court held that since the drug dog was not in the curtilage, its sniffing of the door seam was not a search, and Edstrom had nothing to complain about.
Justice Lillehaug was having none of it. In a strong dissent, he argued that the search at the threshold of a home should require a warrant, regardless of the type of home. The outcome of the case was “discrimination among Minnesotans based on where they live,” and he concluded his opinion this way:
“[T]he court’s [decision] undermines the rights of Minnesotans who live in multi-unit dwellings. To be sure, people of every age, race, and income level live in apartments, whether rental or condominiums. Nevertheless, as other courts have recognized, a strict apartment versus single-family house distinction [regarding curtilage] is troubling because it would apportion Fourth Amendment protections on grounds that correlate with income, race and ethnicity.”
Edstrom has asked the U.S. Supreme Court to review the case. The high court is expected to consider whether to take the case on February 22, 2019. The case has attracted the attention of civil libertarians as well as conservatives,[2] and this may help Edstrom beat the very long odds on obtaining Supreme Court review. If he fails, his case will have written this disparate treatment of apartment and house dwellers into the constitution, at least in Minnesota. If the high court takes the case and affirms, warrantless searches of the entrances to apartments will be the law of the land.
[1] https://law.justia.com/cases/minnesota/supreme-court/2018/a16-1382.html
[2] For example, see Dan King, “The Supreme Court Should Stop Warrantless Drug-Sniffing Dogs,” The American Conservative, Feb. 7, 2019, available at https://www.theamericanconservative.com/articles/the-supreme-court-should-stop-warrantless-drug-sniffing-dogs/