Johnson v. United States  PPSA filed a brief asking the U.S. Supreme Court to take up the case of Eric Tyrell Johnson, a Maryland man convicted of drug crimes after police brought a drug-sniffing dog to the door of his apartment. When the dog gave a “positive alert” for contraband, the officers obtained a warrant to enter his apartment and found the evidence they suspected was there. Yet at the time of the “sniff-sniff” at Johnson’s door, the police lacked probable cause sufficient for a warrant. The Fourth Circuit Court of Appeals nevertheless upheld Johnson’s conviction. Does this smell right to you? Or was this olfactory intrusion a warrantless search in violation of the Constitution’s Fourth Amendment? This case raises more questions. Would the Framers, who wrote that amendment requiring a probable cause warrant, recognize its application to modern apartment buildings, where dozens or hundreds of occupants share walls and live side by side? And what would it ultimately mean for the wider privacy rights of society if the Court were to allow such searches to remain in place? From Place to Kyllo: Preserving the Fourth Amendment The logic of the Fourth Circuit was derived from United States v. Place (1983). In that case, the Supreme Court held that the combination of an airport canine sniff of luggage in a public setting that could (supposedly) only detect drugs was “sui generis” (court-speak for “unique”) and not a Fourth Amendment search. In our brief, we remind the Court to keep Place (a well-named case, if ever there was one) in its place as a narrow, context-specific rule. Place does not apply to homes, which the Fourth Amendment has always treated as sacrosanct. A better precedent is Kyllo v. United States (2001), in which heat-imaging technology penetrated the walls of a home to reveal intimate details inside it. The Supreme Court found that the use of such penetrative sense-enhancing technology to expose the occupants and interior of a home constituted a search requiring a probable-cause warrant. Thus, Kyllo better follows the original understanding of the Fourth Amendment, focusing on what is being searched and how, not whether the thing the government is looking for is legal or not. PPSA’s brief underscores that in a similar way: dogs bred and trained to find drugs function as biological sense-enhancing technology. Although dogs have been man’s best friend for – well, forever – their use as a drug detection device began only several decades ago. Just like thermal imaging, a canine sniff detects interior activity – odors – without entering the home. As in Kyllo, this technique improperly accessed private information from the interior of a home without a warrant. PPSA’s brief warns the Court that if police canines can sniff at apartment thresholds without a warrant, it effectively deputizes police to probe deeply into people’s homes using other tools that amplify human senses. That principle erodes privacy at its very core. Where Does Privacy Begin in Shared Spaces? But the Court doesn’t have to rely on exotic technology to analyze this case. In Florida v. Jardines (2013), the Court held that a dog sniff at a home did constitute a Fourth Amendment search because officers intruded on the home’s “curtilage” – the property around a house in which a resident has a reasonable expectation of privacy. Lower courts have split over what curtilage means when the home is an apartment door in a shared hallway. Some have said that common hallways aren’t curtilage because tenants lack exclusive control over them. The Fourth Circuit took exactly that view in Johnson. But that leaves the vast number of American apartment dwellers as second-class citizens when it comes to Fourth Amendment protection of their homes. Modern Homes and Founding-Era Privacy We also reminded the Court that the modern apartment poses nothing new to the Fourth Amendment. When the Fourth Amendment was submitted to the states in 1789, cities from Charleston to Boston were already thick with rowhouses and boarding houses. The Framers, well acquainted with multi-unit dwellings, would have understood that a person’s “house” could be part of a larger structure when they drafted the Fourth Amendment. Thus, there is nothing in the Fourth Amendment’s text or original meaning that suggests that privacy protections disappear simply because a dwelling shares walls or hallways with others. A New Governing Principle for Sense-Enhancing Tech? Most important of all, if the Fourth Circuit’s rule stands – that drug-sniffing canines can be deployed at an apartment door without a warrant – it will endorse a new governing principle: that law enforcement can use any sense-enhancing device or technique to probe inside homes. Warrantless, deep-privacy intrusions under this rule could become ubiquitous. GPS, olfactory sensors, bioengineered animals, and other emerging tools could become routine justifications for ignoring warrants. The principle could allow supposedly narrow-searching devices atop every roving police car or on every street corner to scan all passersby. “Surely,” we told the Court, “the Founders’ expectation of privacy would not allow such a dystopian outcome.” That is why we are asking the Court to reassert the historical and textual guardrails of the Fourth Amendment in this case. Comments are closed.
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