case law update

Seventh Circuit Extends the Supreme Court’s Opinion in Jardines to the Common Areas of Apartment Complexes

The Seventh Circuit recently held that the use of a “super-sensitive instrument” outside an apartment door violates a defendant’s Fourth Amendment rights. Justifying its holding, the court discussed that people of different ethnicities and race as well as of lower income are more likely to reside in apartment complexes and need to be afforded protection.

In October 2013, Deputy Joel Wagner met with a confidential informant regarding alleged drug transactions occurring in Apartment 204 of an apartment complex in Madison, WI. The informant noted that a man named “Javari” lived in the apartment, drove a black Cadillac Escalade, and frequently carried a handgun in his waistband. Later, this same informant notified Deputy Wagner that he received a text message indicating one of the individuals in Apartment 204 possessed heroin.

On October 14, 2013, Deputy Wagner met with the property manager and learned that a “Ruthie Whitaker” leased Apartment 204. Deputy Wagner also visited the parking garage, where he observed a black Cadillac Escalade in Apartment 204’s parking space. The tags on the Cadillac Escalade also reported that it belonged to Whitaker. The property manager signed a consent form on December 4, 2013, authorizing a search of the apartment complex by a drug-sniffing dog.

On January 7, 2014, Deputy Wagner, Deputy Jay O’Neil, and a drug-sniffing dog, “Hunter,” went to the apartment complex. Hunter first alerted the officers when it passed the black Cadillac Escalade parked in the parking space for Apartment 204. Upon a later search of the vehicle, no drugs were found.

The officers proceeded to take Hunter to the second floor of the apartment complex where there were at least six to eight apartments. Deputy O’Neil took Hunter on a quick walk through the hallway to get acquainted with any people or animal smells. During the first pass, Hunter showed “extreme interest” in Apartment 204 but did not alert the officers. On a secondary sniff, Hunter alerted the officers to the presence of drugs therein.

After obtaining a search warrant, the officers recovered cocaine, heroin, and marijuana in Apartment 204. Whitaker was the sole occupant of the apartment when the officers executed the warrant. The officers then proceeded to arrest Whitaker, who admitted that he lived in Apartment 204 and alerted the officers to the existence of a handgun in the apartment.

On April 11, 2014, Whitaker filed a motion to suppress the evidence seized during the search. The magistrate judge, however, issued a Report and Recommendation, recommending that Whitaker’s motions be denied. The district court adopted the Report and Recommendation, sentencing Whitaker to consecutive terms of 12 months’ imprisonment for possession with intent to distribute and 60 months’ imprisonment for use of a firearm in furtherance of a drug trafficking crime. Whittaker appealed the district court decision to the U.S. Court of Appeals for the Seventh Circuit. On appeal, Whitaker contended that the use of drug-sniffing dog was a search under the Fourth Amendment and Florida v. Jardines, 133 S. Ct. 1409 (2013).

Whitaker argued that Jardines should be extended to the hallway outside his apartment door because the officers took the dog to his door for the purpose of gathering incriminating forensic evidence. Whitaker cited United States v. Herman, 588 F. App’x 493, 494 (7th Cir. 2014), where the court of appeals specifically left open the question of whether Jardines applies to apartment hallways. In Jardines, the Supreme Court held that the government’s use of a trained police dog to investigate a home and its immediate surroundings was a search under the Fourth Amendment, explaining that a defendant has an expectation of privacy in his porch, which is a part of the home’s curtilage.

The court of appeals found the use of a drug-sniffing dog outside of an apartment door clearly invades reasonable privacy expectations. According to Jardines, officers are not entitled to utilize a “super-sensitive instrument” or a “super-sensitive dog” to detect objects and activates they could not perceive without its help. Here, the drug-sniffing dog detected the presence of drugs that the officers otherwise could not perceive without entering the apartment. 

The court of appeals did not find that Whitaker had a reasonable expectation of complete privacy in the hallway because he lacked a right to exclude. However, Whitaker’s lack of a right to exclude does not mean he had no right to expect certain norms of behavior in his hallway. Indeed, the fact that this was a search of a home distinguishes this case from dog sniffs in public places. While other residents might bring their dogs through the hallway does not mean the officers can bring a sophisticated drug-sniffing dog outside an apartment door without a warrant.

The court of appeals also made a point to note “a strict apartment versus single-family house distinction is troubling as it would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity.” As such, the court of appeals extended Jardines to apartment buildings.

Further, the court held that the good-faith exception did not apply in this case. Though there was no recognized expectation of privacy in the common areas of an apartment complex at the time of the search in question, no appellate decision specifically authorized the use of a “super-sensitive instrument” by officers outside an apartment door to investigate the inside of an apartment without a warrant. Thus, the logic in Kyllo v. United States, 533 U.S. 27 (2001), yielded the conclusion that the officers could not reasonably rely on binding appellate precedent to justify the good-faith exception.

Read the full case: United States v. Whitaker


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: case law update, michael j sgarlat


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