United States v. Johnson

Drug detection dogs are critical tools in the fight against drug trafficking.¹ However, law enforcement canines are imperfect: They sometimes incorrectly alert when performing their drug-sniffing duties.² False alerts can be used to support more invasive searches of persons, luggage, and vehicles.³ These unjustified searches are particularly concerning when they invade the home, where “all details are intimate details.”⁴ Recently, in United States v. Johnson,⁵ the Fourth Circuit held that conducting a warrantless canine sniff at an apartment front door does not constitute a “search”⁶ under the Fourth Amendment.⁷ In doing so, the court improperly extended the Supreme Court’s canine-sniff precedent to the home without considering the unique privacy issues implicated. The Fourth Circuit thus failed to pick up where the Supreme Court left off in Florida v. Jardines,⁸ in which the Court implicitly left lower courts to grapple with complex, fact-intensive questions of privacy.⁹

In 2019, state and federal agents in Maryland were investigating Eric Tyrell Johnson and others for trafficking fentanyl and heroin out of an apartment in a multiunit complex.¹⁰ At approximately 3:00 AM on August 7, agents approached the apartment front door with a drug-detection canine, which alerted while sniffing near the door’s lower seam.¹¹ At this point, the agents had not obtained a search warrant.¹² But based in part on the dog’s alert, agents applied for and received a warrant for the entire apartment, which they executed several nights later.¹³ They found drugs and a handgun.¹⁴ Johnson was indicted¹⁵ with several co-defendants on charges of possession with intent to distribute fentanyl and heroin,¹⁶ participating in a drug-trafficking conspiracy,¹⁷ and possessing a firearm.¹⁸

Johnson moved to suppress the evidence obtained from his apartment during the search warrant execution, arguing it was fruit of an illegal search.¹⁹ Johnson contended that the canine sniff at his front door constituted a Fourth Amendment search — presumptively unconstitutional absent a warrant²⁰ — for two distinct reasons.²¹ First, Johnson argued the sniff constituted a search because it was akin²² to the thermal camera used by the officers in Kyllo v. United States,²³ where the Supreme Court found a Fourth Amendment violation because the homeowner’s “reasonable expectation of privacy”²⁴ had been violated.²⁵ Like the thermal camera, Johnson argued, the drug-detection dog was “a specialized device, ‘not in general public use,’” that allowed agents to explore the details of his home.²⁶ Second, Johnson claimed that the canine sniff “involved an unlicensed physical intrusion onto the ‘curtilage’ of [the] home,”²⁷ which the Supreme Court found to be a Fourth Amendment search in Jardines.²⁸ For each reason, Johnson argued, the canine sniff required a warrant.²⁹

The District Court rejected Johnson’s motion on both grounds.³⁰ The court cited an unpublished Fourth Circuit opinion that had rejected a similar canine-sniff privacy argument.³¹ The court also dismissed Johnson’s property argument, explaining that the common-use hallway — to which management quickly granted access — was not within the curtilage.³² The case proceeded to trial, where a jury convicted Johnson on all three counts.³³ He was sentenced to twelve-and-a-half years in prison and appealed the denial of his motion to suppress.³⁴

The Fourth Circuit affirmed.³⁵ Writing for the unanimous panel, Judge Harris³⁶ rejected both of Johnson’s Fourth Amendment arguments, holding that the canine sniff at the apartment door did not violate Johnson’s reasonable expectation of privacy nor intrude upon the protected curtilage of his home.³⁷

Starting with Johnson’s reasonable expectation of privacy theory, Judge Harris distinguished the thermal camera in Kyllo from the canine sniff at hand.³⁸ First, Judge Harris invoked the contraband exception, which declares that individuals do not have a “legitimate” privacy “interest in possessing contraband.”³⁹ Second, Judge Harris reasoned that the scope of each search tool differs: Canine sniffs “‘only reveal[]’ . . . ‘the possession of contraband,’”⁴⁰ whereas a thermal camera may reveal legal or innocuous activity within the home.⁴¹ Thus, even though a canine sniff does reveal information from inside the home, the resident has no privacy interest in the limited information revealed.

Judge Harris relied upon two Supreme Court cases to support the privacy holding.⁴² In United States v. Place,⁴³ the Court held that a canine sniff of luggage at an airport did not constitute a “search” under the Fourth Amendment.⁴⁴ In Illinois v. Caballes,⁴⁵ the Court came to the same conclusion for the sniff of a car during a traffic stop.⁴⁶ Judge Harris “read the Supreme Court’s reasoning in Place and Caballes as categorical, not context-specific.”⁴⁷ She therefore considered the Fourth Circuit “bound by Place and Caballes” and rejected Johnson’s attempt to distinguish the home from luggage at the airport and a car on the road.⁴⁸ Acknowledging that some other circuits had come to the opposite conclusion and found Place and Caballes not to extend to front-door sniffs,⁴⁹ Judge Harris nevertheless concluded that the early morning canine sniff “violated no reasonable expectation of privacy.”⁵⁰ Consequently, no warrant was necessary and the evidence need not have been suppressed.

Turning to Johnson’s curtilage theory, Judge Harris distinguished Johnson’s shared hallway from a private space. She explained that the hallway in which the sniff was conducted was “common property,” since “entry to the [hallway] was ‘not restricted . . . in any way.’”⁵¹ Johnson thus “had no property based right outside [his] apartment door.”⁵² Unlike in Jardines, where the front porch was part of the “curtilage,”⁵³ Judge Harris concluded that “the common hallway outside Johnson’s apartment door is not properly treated as ‘part of the home itself’ for purposes of the Fourth Amendment.”⁵⁴ Since the canine sniff had neither violated any legitimate privacy interest nor occurred within the curtilage of Johnson’s home, the Fourth Circuit affirmed his conviction.⁵⁵

In Jardines, the Court confronted a fact pattern similar to Johnson but resolved the case on property grounds.⁵⁶ The majority expressly declined to delineate the homeowner’s reasonable expectations of privacy, leaving the inherently fact-intensive inquiry⁵⁷ to the lower courts and implicitly suggesting it demanded a resolution of competing principles.⁵⁸ But rather than embrace this privacy inquiry head-on, the Fourth Circuit chose to read Place and Caballes expansively. The court extended that precedent to the home without sufficient analysis, as invited by Jardines.⁵⁹ In doing so, the Fourth Circuit did not consider Fourth Amendment jurisprudence indicating the home is viewed differently than public places (where the canine sniffs occurred in Place and Caballes). The divisive issues in Jardines remain unresolved after Johnson, subject to a growing circuit split.⁶⁰

Although Jardines presented a canine sniff search at a house to the Supreme Court, it did not reach the issue of the homeowner’s privacy interests.⁶¹ Writing for the majority, Justice Scalia⁶² explained that two distinct doctrines could resolve the Fourth Amendment question: the “reasonable-expectations test”⁶³ from Katz v. United States⁶⁴ and the “property-rights baseline.”⁶⁵ The Jardines Court resolved the case on property grounds, finding that the sniff was a search because it occurred on the house’s porch (within the home’s curtilage).⁶⁶ However, the Justices recognized that the property approach may not always be determinative⁶⁷ (as in Johnson, where the Fourth Circuit ruled that the apartment hallway was not protected curtilage⁶⁸). Three Justices wrote separately to note they would have found a reasonable expectation of privacy from the sniff,⁶⁹ and four others wrote they would not have.⁷⁰ The Jardines Court reserved this more complex question of whether a canine sniff search at the home “violate[s] [an] expectation of privacy under Katz”⁷¹ for the lower courts in fact patterns such as the one in Johnson,⁷² remarking that deciding the case on property grounds kept the “easy case[] easy.”⁷³

Jardines demanded a form of analysis ignored by the Fourth Circuit. On the surface, two questions remained after Jardines: First, does Kyllo apply to canine sniffs?⁷⁴ And second, should Place and Caballes extend to canine sniffs at the home?⁷⁵ In Johnson, the Fourth Circuit provided an answer to each: no and yes.⁷⁶ However, by causing disagreement over the relevance of Katz, Jardines raised yet a third question, one underlying the entire privacy doctrine: Does society recognize an expectation of privacy from front-door canine sniffs as reasonable?⁷⁷ While the Fourth Circuit provided strong reasoning in Johnson to support its rejection of the Kyllo analogy,⁷⁸ the court avoided the fact-intensive privacy inquiry invited by Jardines, choosing instead to extend Place and Caballes⁷⁹ without sufficient analysis. In justifying its choice to “read the Supreme Court’s reasoning in Place and Caballes as categorical, not context-specific,” the Fourth Circuit did no more than offer a brief restatement of Caballes’s basic logic.⁸⁰ If the Jardines Court had been persuaded by Florida’s argument that a citation to Place and Caballes sufficed, it would not have needed to reserve that question.⁸¹ Instead, Jardines demanded lower courts address more thorny issues.

First, the Fourth Circuit extended Place and Caballes to reach the home without addressing the uniquely private nature of the home, the effect of which divided the Justices in Jardines. While Judge Harris invoked Place’s assertion that the canine sniff is “sui generis,”⁸² the Supreme Court has suggested the home is also sui generis. The home is “ordinarily afforded the most stringent Fourth Amendment protection,” and police action there must be carefully justified.⁸³ The Supreme Court has explained that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”⁸⁴ The home has been recognized to be “psychologically and politically important to individuals in a way, or to a degree, that privacy in other contexts is not.”⁸⁵ Despite the invitation in Jardines to consider whether the canine sniff “violated [the homeowner’s] expectation of privacy,”⁸⁶ the home’s special status did not play a role in Johnson’s expansion of Place and Caballes.⁸⁷

Instead, the Fourth Circuit chose to read Place and Caballes categorically, avoiding the reasoning in Place and Caballes that centered on the location of the canine sniffs.⁸⁸ Justice O’Connor expressly narrowed Place’s rationale to public places: “[T]he particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search.’”⁸⁹ Elsewhere in Place, the Court conducted an extensive balancing test between the “strong governmental interest” in rooting out “drug courier activity at airports” and the “minimally intrusive” sniff of the luggage.⁹⁰ Place reasoned that police stops at airports are important for “prevent[ing] the flow of narcotics into distribution channels” due to “the inherently transient nature of drug courier activity at airports.”⁹¹ But the domestic activity at issue in Johnson is not similarly “inherently transient.”⁹² Thus, the government interest in Johnson is weaker while the privacy interest is stronger. Regardless, the Fourth Circuit avoided this Jardines-invited inquiry by simply citing to Place as controlling.⁹³

The Caballes Court also stated its holding narrowly, noting the sniff’s occurrence at a traffic stop: “Accordingly, the use of a well-trained narcotics-detection dog . . . during a lawful traffic stop generally does not implicate legitimate privacy interests.”⁹⁴ While the Fourth Circuit dismissed any attempt to distinguish between a vehicle and the home using a privacy framework, the Supreme Court has made that precise distinction before, finding certain government action permissible under the Fourth Amendment when searching automobiles, but not permissible when searching homes.⁹⁵ In deciding those cases, the Court rejected litigants’ mere citations to the constitutional validity of the search at a public location (the logic employed in Johnson), instead drawing a “firm” and “bright” line at the home.⁹⁶ The Fourth Circuit side-stepped this approach.

Jardines demanded a more detailed analysis. Despite the opportunity in Jardines to characterize Place and Caballes as categorical by agreeing with the State’s argument in that case “that investigation by a forensic narcotics dog by definition cannot implicate any legitimate privacy interest,” the Supreme Court continued to read them as location-dependent.⁹⁷ It described Place and Caballes narrowly as holding “that canine inspection of luggage in an airport . . . and canine inspection of an automobile during a lawful traffic stop, do not violate the ‘reasonable expectation of privacy.’”⁹⁸ Both before and after Jardines, other circuits have followed this lead by adopting the same distinction dismissed in Johnson and embracing the contextual nature of the Katz privacy test. The Seventh Circuit, in United States v. Whitaker,⁹⁹ distinguished the public places in Place and Caballes from the home (“the Fourth Amendment’s core concern”).¹⁰⁰ The Second Circuit drew the same distinction in United States v. Thomas,¹⁰¹ engaging in a detailed Katz-style privacy inquiry and finding a “heightened privacy interest . . . in [a] dwelling place.”¹⁰² Rather than examining how the home might be viewed differently through a privacy lens, the Fourth Circuit sidestepped the issue by citing Place and Caballes as controlling, regardless of the context.

Finally, the Fourth Circuit failed to consider the applicability of Place and Caballes through the lens of Katz. Applying Place and Caballes to the privacy question categorically without considering location runs counter to the reasonableness standard Katz outlines: Many people might think no reasonable privacy interest is abridged when narcotics-detection dogs sniff luggage at an airport or a car during a lawful traffic stop, but would find an issue with police bringing a dog to an apartment door at 3:00 AM to conduct a covert sniff.¹⁰³ Although the Court has sometimes refrained from directly applying the Katz test, instead adopting bright-line rules for certain situations,¹⁰⁴ courts should still read those situation-specific analogies through the lens of the societal reasonableness standard since Katz remains a cornerstone of the Fourth Amendment.¹⁰⁵ Although the Fourth Circuit considered the sniff’s location in resolving the curtilage issue,¹⁰⁶ its decision to declare a categorical view of Place and Caballes ignored the location-dependent nature of the reasonable-expectation-of-privacy inquiry.¹⁰⁷

By choosing to extend Place and Caballes to the home without a detailed analysis, the Fourth Circuit failed to address the privacy questions left after Jardines. Faced with the unique nature of both canine sniffs and the home, the Fourth Circuit sidestepped these competing principles by neglecting to examine the location-specific language of Place and Caballes and the reasonableness touchstone in Katz. Johnson authorizes law enforcement to bring dogs up and down building hallways, sniffing at each door as they go.¹⁰⁸ False alerts happen, and some will undoubtedly be used as probable cause to search the premises.¹⁰⁹ “[T]he sanctity of the home” demands courts’ careful attention.¹¹⁰