What Rights Of Privacy Should Those Who Live In Apartments Have?

If you are a strict constructionist like Justice Scalia, the answer might be that we had no apartments at the time of the adoption of the United States Constitution so there was no need to think about dogs running around sniffing at people’s doors. Or perhaps the answer for a strict constructionist might be that no one at the time of the adoption of the Constitution thought of training dogs to finds anything. But we are no longer living in that era. Lots of people live in apartments and condominiums. Do they have a reasonable right to privacy? Far less so in Minnesota.

From Minnesota Public Radio, via the NACDL news scan:

While a person’s home can be considered constitutionally protected, the Supreme Court said today, an apartment hallway is not, even if the dog had to sniff at the seam of Edstrom’s door to smell the drugs.

Writing for the majority (see opinion), Chief Justice Lorie Gildea said the essential question of the expectation of privacy in the hallway is whether the device police used — in this case: a dog — is “’capable of detecting lawful activity’” as well as illegal activity,” Gildea said in citing a U.S. Supreme Court decision.​  There is another way of looking at this issue as illustrated by Justice David Lillehaug’s dissent.

Here is an excerpt from the dissent:

In Florida v. Jardines, the United States Supreme Court held that a narcotics-dog sniff at the door of a single-family residence was a “search” in violation of the Fourth Amendment’s warrant requirement. 569 U.S. 1, 11–12 (2013). This is so because the area “immediately surrounding and associated with the home—what our cases call the curtilage—[is] part of the home itself for Fourth Amendment purposes.” Id. at 6 (citation omitted) (internal quotation marks omitted).

Today, the court reads out of Jardines the area “immediately surrounding” the home. The unfortunate result of this omission is discrimination among Minnesotans based on where they live. The search of the door of a single-family home requires a warrant, but the search of the door of an apartment home does not.

But homes are homes. Because Minnesotans’ constitutional rights should not depend on the form of their dwelling, I respectfully dissent.”

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