“Curtilage” And The Constitutional Right You May Not Even Know You Had (And Possibly Just Lost)

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/

About Mark Thieroff

Mark is a land use attorney in Minneapolis. He and his spouse and two sons live, shop, bike and walk their beagle in St. Paul. Twitter: @markthieroff

16 thoughts on ““Curtilage” And The Constitutional Right You May Not Even Know You Had (And Possibly Just Lost)

  1. Andrew Evans

    That makes sense though. My yard is not a shared common space among tenants or others. Although before reading this I thought that what was clearly visible in my yard would be considered in the public space and therefor subject to searches, similar to the privacy laws in place. If it’s behind a 7 foot fence, such as a back yard, then there is more of a expectation of privacy, at least from those on the street.

    An apartment building is a shared space owned by someone else. Getting permission from the owner of the building, or a resident, should be enough for the police to be able to walk the halls or accessible areas – or at least it makes sense to me that it should be, since I wouldn’t (and didn’t when I lived in an apartment) expect any privacy in the hallway.

    In any event, after the dog was alerted the authorities obtained a warrant. It’s not like they barged in like a scene from whatever the French Cops show is called. I’m not sure what would change if an amendment is passed or the ruling overturned. The authorities here may have been able to get a warrant or permission to search the hallways from the owner. Although I’m not a great legal mind this way.

    1. Adam MillerAdam Miller

      The thing that makes a difference to me (and I didn’t read Justice Lillehaug’s opinion, maybe he covered it) is that they didn’t just observe what they could from the hallway, they used a device (a dog) to observe what was behind the door and otherwise private. That sounds like a search to me.

      I’m not sure that it’s really any different than the Kyllo case in which the Supreme Court decided that using a thermal imaging device to detect heat from grow lamps was a search: https://en.wikipedia.org/wiki/Kyllo_v._United_States

      That they may have been able to get the warrant via other means doesn’t make the one they got valid and cases like these are important for defining how to appropriate secure a warrant.

      1. Sean Hayford OlearySean Hayford Oleary

        That is a good point. I feel like you could make the argument dog was really observing the air in the common space, and the police (and judge) thought it was reasonably likely the source of odors was the apartment.

        But I’m not sure why that same logic wouldn’t apply to the case you reference. Technically, it was observing heat outside the home.

      2. Andrew Evans

        However what was behind the door was also in the hallway, they didn’t do anything more invasive than walk in the public area of the building. It is more or less the same as a officer patrolling with their window down and noticed a strong pot smell, then went to investigate, or if they were patrolling with a drug sniffing dog on a public sidewalk. I would imagine that all the reason they would need to enter the building is the permission from some resident or the owner. Also assuming that once inside a resident or guest is free to go around the hallways freely. This may be different if there was specific keyed access to floors.

        A camera that sees through walls would be different, since whatever it shows wouldn’t be in the public view. However, I’m sure Minneapolis will expand it’s dumb “drill a hole to check for insulation” mandate to include mandatory thermal imaging, and it will be applauded.

        1. Adam MillerAdam Miller

          Except it’s not more or less the same as an officer smelling pot on the street. They brought a device (a dog) specifically to that spot to detect what the officer could/did not. Which, again, sounds like a search, not just a “happened to notice” something that was going on publicly.

          And Kyllo wasn’t a camera that see through walls. It was detecting heat radiating to the outside of the building. Indeed, it was the argument of the dissent that the heat was on public view.

    2. Will

      The thing I have an issue with is that the hallway of an apartment building is not public. It’s common to the occupants of the building. Much like a semi-private area like a porch or a front yard may be common to a duplex. One may reasonably feel there is some sense of privacy in these areas that one would not have on the sidewalk or in the street.

      Now that I’ve been introduced to this case, I am curious about the outcome.

      1. Andrew Evans

        Well it’s no completely public, however it isn’t completely private. You would be able to walk nude in your own apartment, and generally in your own back yard if fenced properly, and not be charged for exposure. However do that in an apartment when walking down stairs and getting the mail, it may be a different story.

        From reading other stories it seems that what is visible from public space on the street is fair game. A stolen car or motorcycle on a persons property that can be identified easily is different than one in a garage or under a tarp. Go into the garage without a warrant, or even lift up a tarp and the line is crossed. View it from the street and it’s fine.

        Again, all it seems to take is someone from the building to allow officers to search the hallways. They can’t just break the door down or gain entry themselves through some means.

        1. Will

          That much is true. Although, if you can reasonably expect privacy from an officer walking a dog up to the front door or sifting through trash, would you expect the same in a multi family unit? Does it make a difference if you’re renting or own?

          I’m curious how the case is decided.

  2. Anon

    Is this really an owner/renter issue? Presumably, condo owners are just as disadvantaged by as renters. Also, a tenant in a single family home would enjoy the legal protection of curtilage.

    Regardless, I don’t agree with this outcome; yet another baby step in our relentless march towards police-statehood.

  3. Mark Thieroff Post author

    Good comments. Thanks for reading.

    It’s true that some apartment dwellers are owners and some house occupants are tenants, and Justice Lillehaug picked up on this in his dissent. But its also true that a majority if not large majority of people who live in apartments are renters, and a majority if not large majority of people who live in houses are not renters. So I think the potential for disparate impact based on property ownership can’t be dismissed. (And architectural designs that provide apartments with greater privacy, like individual access and vertical access also tend to make them more expensive.)

    Regarding the use of the dog, there are some additional details that I probably should have included. One is that the dog is used to detect odors not perceptible to humans. If the officer can detect an odor that the officer recognizes as contraband based on training or prior experience, that by itself provides probable cause and the dog is not needed. The poice bring the dog to smell what they can’t, and given that in this case the dog was used to smell the “door seam” rather than the air in the corridor, this does feel like the heat detection device in the Kyllo case that Adam mentioned.

    It’s also worth noting that in this case the police had the dog sniff other doors on the corridor. That was likely done to be able to say that the dog alerted only at Edstrom’s door (there are studies indicating a high frequency of false positives with drug sniffing dogs), but that also means police were using the dog at doors where they did not even have the anonymous tip that they had about Edstrom.

  4. Monte Castleman

    One thing to point out is that there’s been several cases where warrant-less searches of trash contents has been upheld, even though that is obviously curtilage. Recently they caught the “Golden State Killer” Joseph DeAngelo with DNA from a Kleenex he threw into his trash. The idea is that you have abandoned the property and have no reasonable expectation of privacy inside your garbage can (unless you’re Oscar the Grouch) like you would on your porch or garage.

    Another interesting case recently is Timbs v. Indiana, where it was ruled that the 8th Amendment’s excessive fines clause is incorporated to the state and local governments. In practical terms this will put the brakes on civil asset forfeiture

    1. Mark Thieroff

      In the DeAngelo case, the trash can had been placed along the street for collection, so it was not in the curtilage of the house.

  5. Mark Thieroff

    The US Supreme Court decided on Friday not to hear the Edstrom case. This means that the decision of the Minnesota Supreme Court will remain the law of Minnesota.

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