United States v. Whitaker and Fourth Amendment Rights

Efrain Alvarado III



In the Seventh Circuit Court case United States v. Whitaker (2016), the issue of how the Fourth Amendment and the use of advanced police methods without a warrant (such as thermal-imaging devices or drug-sniffing dogs) ought to be reconciled was settled as it relates to apartments. However, a ruling by the Seventh Circuit Court that was perhaps too narrow (focusing on privacy rights in cases where advanced police methods are employed without a warrant on people’s apartment/home/property) may have actually undermined the Court’s effort to protect people’s Fourth Amendment right against unlawful searches and seizures. After addressing two similar but critically different cases involving the Fourth Amendment, the question of whether or not the Seventh Circuit Court’s logic behind their ruling in favor of Whitaker was erroneous (and perhaps harmful in the long run) will be addressed.

In United States v. Whitaker, Sheriff Deputy Joel Wagner in Wisconsin responded to a complaint about drug sales in an apartment building by gaining consent from the property manager to execute a K9 search of the building. However, no warrant was procured for Wagner’s K9 search. Upon arrival at the scene, K9 “Hunter” alerted police at Whitaker’s Black Escalade and the door of his apartment in the second floor. As a result of Hunter’s sniffing, police obtained a warrant and promptly arrested Lonnie Whitaker for several drug-related charges. Whitaker’s argument was that a similar case (Florida v. Jardines, which held that the warrantless use of a drug-sniffing dog to investigate the defendant’s porch was unconstitutional) implied the protections of the Fourth Amendment to common areas of apartment buildings, not just homes owned by people and their property. Whitaker also challenged the search’s constitutionality by appealing to the established parameters from Kyllo v. United States. In that case, the Court held that the use of thermal-imaging devices to detect heat from private homes without a warrant constitutes a violation of the Fourth Amendment. From the Kyllo ruling: “where the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Ultimately the Seventh Circuit Court found that because Kyllo had already been decided before the search of Whitaker’s apartment back in 2013, the logic of that case should have indicated to police that a K9 search without a warrant would be considered an unreasonable search that would be in violation of the Fourth Amendment.

This ruling, although seemingly favorable, may have actually undermined people’s Fourth Amendment right against unreasonable searches and seizures in relying on the precedent set by Kyllo. The Kyllo case involved an instance similar to the one that occurred with Whitaker; using extraordinary tools not generally available to the public (a thermal-imaging device and a drug-sniffing dog), police engaged in a search using such tools without a warrant and subsequently violated the Fourth Amendment rights of the accused. This implies that in order for the Fourth Amendment Rights of the accused to be violated in these sorts of instances involving apartments and/or homes, police must be using some extraordinary means to engage in a warrantless search that results in them obtaining information they otherwise could not have procured. Where Judge Darrah may have erred in the ruling is by appealing to the logic of the Kyllo case rather than that of the Jardines case. The Jardines ruling’s majority found the Fourth Amendment’s protections were not just related to the privacy interests of one’s home, but also on the property interests outside it as well. By appealing to the Jardines case rather than the Kyllo case (where the Fourth Amendment was focused on the privacy interests within the home rather than outside of it as well), Judge Darrah may have missed an opportunity to broaden the Fourth Amendment protections to citizens with privacy interests outside of their apartments and not just within them.

Works Cited

Kerr, O. (2016, April 13). Use of a drug-sniffing dog at an apartment door is a ‘search,’ 7th Circuit holds. Retrieved February 10, 2017, from https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/13/use-of-a-drug-sniffing-dog-at-an-apartment-door-is-a-search-7th-circuit-holds/

United States v. Whitaker. (2017, January 05). Retrieved February 10, 2017, from http://harvardlawreview.org/2017/01/united-states-v-whitaker/


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