                                 In the

     United States Court of Appeals
                   For the Seventh Circuit
                      ____________________
Nos. 14-3290 and 14-3506
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,

                                   v.

LONNIE WHITAKER,
                                                 Defendant-Appellant.
                      ____________________

         Appeals from the United States District Court for the
                     Western District of Wisconsin.
        Nos. 14-cr-00017, 07-cr-00123 — Barbara B. Crabb, Judge.
                      ____________________

       ARGUED APRIL 20, 2015 — DECIDED APRIL 12, 2016
                  ____________________

  Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
DARRAH, District Judge. ∗
   DARRAH, District Judge. Acting on information that drugs
were being sold from a certain apartment in Madison, Wis-
consin, law enforcement obtained the permission of the
apartment property manager and brought a narcotics-


    ∗Hon. John W. Darrah of the Northern District of Illinois, sitting by
designation.
2                                   Nos. 14-3290 and 14-3506

detecting dog to the locked, shared hallway of the apartment
building. The dog alerted to the presence of drugs at a near-
by apartment door and then went to the targeted apartment
where Whitaker was residing. After the officers obtained a
search warrant, Whitaker was arrested and charged with
drug and firearm crimes based on evidence found in the
apartment. At the time of his arrest, Whitaker was serving a
term of supervised release in Case No. 07-cr-123, a convic-
tion for being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). After the district court denied his
pretrial motions challenging the search and the dog’s relia-
bility, Whitaker entered a conditional guilty plea that pre-
served his right to appeal the district court’s ruling.
    On appeal, Whitaker raises four issues. First, he argues
the use of the dog was a search under the Fourth Amend-
ment and Florida v. Jardines, 133 S. Ct. 1409 (2013). Second,
he contends that the district court should have granted him a
Franks hearing because there was a material omission in the
affidavit used to obtain the search warrant. Third, Whitaker
claims that the dog’s training records should have been
turned over to him, pursuant to Florida v. Harris, 133 S. Ct.
1050 (2013). Finally, he argues his term of supervised release
had expired and he should not have been sentenced after
revocation. For the reasons discussed below, we reverse the
district court’s holding regarding the search. The remaining
issues are therefore moot.
                       I. BACKGROUND
   In October 2013, Dane County Sheriff’s Deputy Joel
Wagner met with a confidential informant about drug deal-
ing at 6902 Stockbridge Drive, Apartment 204, in Madison,
Wisconsin. The informant told Wagner that “Javari” lived in
Nos. 14-3290 and 14-3506                                   3

Apartment 204, drove a black Cadillac Escalade and carried
a handgun in his waistband. The informant reported seeing
Javari and another individual selling drugs in the apartment.
   On October 14, 2013, Wagner met with the property
manager for 6902 Stockbridge Drive and learned that
Apartment 204 was leased to Ruthie Whitaker. The property
manager took Wagner to the underground parking garage,
where Wagner observed a black Cadillac Escalade in the
parking stall for Apartment 204. The license plate showed
that the Escalade was registered to Ruthie Whitaker.
    Over a month later, on November 25, 2013, the same in-
formant sent Wagner a text message. The text message indi-
cated that one of the individuals dealing drugs contacted the
informant and told the informant that the individual was
back in town and was at the apartment with a lot of “h.” The
informant knew “h” to mean heroin. On December 4, 2013,
the property manager signed a consent form, authorizing a
K9 search of 6902 Stockbridge Drive. On December 17, 2013,
Wagner received an anonymous complaint concerning drug
activity at 6902 Stockbridge Drive. The anonymous inform-
ant did not specifically mention Apartment 204 but indicated
that the person who was selling out of 6902 Stockbridge
Drive drove a black Cadillac Escalade.
    On January 7, 2014, Wagner and Deputy Jay O’Neil, with
his drug-sniffing K9 partner, “Hunter,” went to 6902 Stock-
bridge Drive. Hunter first alerted on the Escalade parked in
the space for Apartment 204. Upon a later search of the Esca-
lade, no drugs were found.
   The officers took Hunter to the second floor of the
apartment building and into its locked hallway, where there
4                                   Nos. 14-3290 and 14-3506

were at least six to eight apartments. According to his police
report (produced during discovery), O’Neil took Hunter on
a quick walk through the hallway in order to get used to any
people or animal smells. During the first pass, Hunter
showed extreme interest in Apartment 204 but did not alert.
Hunter then alerted to the presence of drugs at the door of
nearby Apartment 208. Wagner told O’Neil that it was not
the targeted apartment. On a secondary sniff, Hunter alert-
ed on Apartment 204.
   After obtaining the search warrant, the officers recovered
cocaine, heroin, and marijuana in Apartment 204. Whitaker
was the sole occupant at the time the warrant was executed,
and, in a post-arrest interview, he admitted he lived there.
He also told officers about a handgun in his apartment and
consented to the officers’ re-entry to retrieve it.
    On April 11, 2014, Whitaker filed a motion to suppress
the evidence seized during the search. He also requested a
Franks hearing and the production of Hunter’s training rec-
ords. On May 19, 2014, the magistrate judge issued a Report
and Recommendation, recommending that Whitaker’s mo-
tions be denied. On June 16, 2014, the district court adopted
the Report and Recommendation. On October 9, 2014,
Whitaker was sentenced to consecutive terms of 12 months’
imprisonment on Count 1, possession with intent to distrib-
ute heroin and cocaine, and 60 months’ imprisonment on
Count 3, use of a firearm in furtherance of a drug trafficking
crime. On November 14, 2014, the district court revoked
Whitaker’s supervised release in Case No. 07-cr-123 and sen-
tenced him to a term of 18 months’ imprisonment to run
consecutively with the sentence given for Count 3 and con-
currently with the sentence given for Count 1.
Nos. 14-3290 and 14-3506                                       5

                          II. ANALYSIS
   A. The Fourth Amendment and Jardines
    When reviewing appeals from denials of motions to sup-
press, we review legal questions de novo and factual findings
for clear error. United States v. Breland, 356 F.3d 787, 791 (7th
Cir. 2004). Whitaker contends that the district court erred in
holding that he had no expectation of privacy in the apart-
ment building’s common hallway and denying his motion to
suppress the evidence gathered from his apartment.
    In Florida v. Jardines, 133 S. Ct. 1409, 1417-18 (2013), the
Supreme Court held that the government’s use of a trained
police dog to investigate a home and its immediate sur-
roundings was a search under the Fourth Amendment. The
Court explained that the defendant had an expectation of
privacy in his porch, which is part of the home’s curtilage
and “enjoys protection as part of the home itself.” Id. at
1414. This is because the curtilage “is ‘intimately linked to
the home, both physically and psychologically,’ and is where
‘privacy expectations are most heightened.’” Id. at 1415
(quoting California v. Ciraolo, 476 U.S. 207, 213). The Court
was clear that its holding was based on the trespass to the
defendant’s curtilage, not a violation of the defendant’s pri-
vacy interests. Id. at 1417-20. Therefore, when the police
physically intruded onto the defendant’s property to gather
evidence without a warrant or consent, they had conducted
a search without a license to do so, in violation of the Fourth
Amendment. Id. at 1417.
    Whitaker argues that Jardines should be extended to the
hallway outside his apartment door because the law en-
forcement took the dog to his door for the purpose of gather-
6                                   Nos. 14-3290 and 14-3506

ing incriminating forensic evidence. He cites to United States
v. Herman, 588 F. App’x 493, 494 (7th Cir. 2014), in which we
specifically left open the question of whether “Jardines ap-
plies to apartment hallways (which are open to many per-
sons other than a given tenant's family and invitees), wheth-
er consent of another tenant or the landlord would permit a
dog to enter, and whether, if the use of the dog is a search,
what is required for that search to be reasonable (reasonable
suspicion? probable cause? probable cause plus a war-
rant?).” Although Whitaker recognizes that Jardines was
premised on trespass to property, he also argues that this use
of a drug-detection dog violated his privacy interests under
Kyllo v. United States, 533 U.S. 27 (2001), and Katz v. United
States, 389 U.S. 347 (1967).
    The use of a drug-sniffing dog here clearly invaded rea-
sonable privacy expectations, as explained in Justice Kagan’s
concurring opinion in Jardines. The police in Jardines could
reasonably and lawfully walk up to the front door of the
house in that case to knock on the door and ask to speak to
the residents. The police were not entitled, however, to bring
a “super-sensitive instrument” to detect objects and activities
that they could not perceive without its help. 133 S. Ct. at
1418. The police could not stand on the front porch and look
inside with binoculars or put a stethoscope to the door to lis-
ten. Similarly, they could not bring the super-sensitive dog to
detect objects or activities inside the home. As Justice Kagan
explained, viewed through a privacy lens, Jardines was con-
trolled by Kyllo, which held that police officers conducted a
search by using a thermal-imaging device to detect heat em-
anating from within the home, even without trespassing on
the property. 133 S. Ct. at 1419.
Nos. 14-3290 and 14-3506                                                  7

    Kyllo held that 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 phys-
ical intrusion, the surveillance is a ‘search’ and is presump-
tively unreasonable without a warrant.” 533 U.S. at 40. That
rule reflects a concern with leaving “the homeowner at the
mercy of ... technology that could discern all human activity
in the home.” Id. at 35-36. A dog search conducted from an
apartment hallway comes within this rule’s ambit. A trained
drug-sniffing dog is a sophisticated sensing device not avail-
able to the general public. The dog here detected something
(the presence of drugs) that otherwise would have been un-
knowable without entering the apartment. 1
    Indeed, the fact that this was a search of a home distin-
guishes this case from dog sniffs in public places in United
States v. Place, 462 U.S. 696, 698 (1983) (luggage at airport),
and Illinois v. Caballes, 543 U.S. 405, 406 (2005) (traffic stop).
Neither case implicated the Fourth Amendment’s core con-
cern of protecting the privacy of the home. It is true that
Whitaker did not have a reasonable expectation of complete


    1 There is little doubt that a highly trained drug-detecting dog is a
“super-sensitive instrument” under Kyllo. See Jardines, 133 S. Ct. at 1418-
19 (Kagan, J., concurring). Kyllo described a category of “sense-
enhancing technology” that is “not available to public use.” 533 U.S. at
34. A trained dog’s nose is a detection device capable of alerting the
handler to the presence of odors at almost non-existent levels. Mark E.
Smith, Going to the Dogs: Evaluating the Proper Standard for Narcotic Detec-
tor Dog Searches of Private Residences, 46 Hous. L. Rev. 103, 116-31 (2009).
Like any technology, it is a tool that must be deployed in a particular
way by a trained handler to be effective. Id. And like other sophisticated
detection tools, the results and accuracy of dog searches are subject to
detailed research and analysis. Id.
8                                     Nos. 14-3290 and 14-3506

privacy in his apartment hallway. See United States v. Concep-
cion, 942 F.2d 1170, 1172 (7th Cir. 1991). Whitaker’s lack of a
reasonable expectation of complete privacy in the hallway
does not also mean that he had no reasonable expectation of
privacy against persons in the hallway snooping into his
apartment using sensitive devices not available to the gen-
eral public.
   Whitaker’s lack of a right to exclude did not mean he had
no right to expect certain norms of behavior in his apartment
hallway. Yes, other residents and their guests (and even their
dogs) can pass through the hallway. They are not entitled,
though, to set up chairs and have a party in the hallway
right outside the door. Similarly, the fact that a police officer
might lawfully walk by and hear loud voices from inside an
apartment does not mean he could put a stethoscope to the
door to listen to all that is happening inside. Applied to this
case, this means that because other residents might bring
their dogs through the hallway does not mean the police can
park a sophisticated drug-sniffing dog outside an apartment
door, at least without a warrant. See Jardines, 133 S. Ct. at
1416.
    The practical effects of Jardines also weigh in favor of ap-
plying its holding to dog sniffs at doors in closed apartment
hallways. Distinguishing Jardines based on the differences
between the front porch of a stand-alone house and the
closed hallways of an apartment building draws arbitrary
lines.
   First, there is the middle ground between traditional
apartment buildings and single-family houses. How would
courts treat a split-level duplex? Perhaps even one that had
been converted from a house into apartments? Does the
Nos. 14-3290 and 14-3506                                        9

number of units in the building matter, or do all multi-unit
buildings lack the protection Jardines gives to single-family
buildings? And what about garden apartments whose doors,
like houses, open directly to the outdoors?
    Second, a strict apartment versus single-family house dis-
tinction is troubling because it would apportion Fourth
Amendment protections on grounds that correlate with in-
come, race, and ethnicity. For example, according to the Cen-
sus’s American Housing Survey for 2013, 67.8% of house-
holds composed solely of whites live in one-unit detached
houses. For households solely composed of blacks, that
number dropped to 47.2%. And for Hispanic households,
that number was 52.1%. The percentage of households that
live in single-unit, detached houses consistently rises with
income. At the low end, 40.9% of households that earned less
than $10,000 lived in single-unit, detached houses, and, at
the high end, 84% of households that earned more than
$120,000 did so. See United States Census Bureau, American
Housing               Survey,          Table          Creator,
http://sasweb.ssd.census.gov/ahs/ahstablecreator.html     (al-
lowing the breakdown of housing type by race and income).
    The police engaged in a warrantless search within the
meaning of the Fourth Amendment when they had a drug-
sniffing dog come to the door of the apartment and search
for the scent of illegal drugs.
   B. The Good-Faith Exception and Davis
    Davis v. United States, 131 S. Ct. 2419 (2011), held that evi-
dence obtained in violation of the Fourth Amendment
should not be suppressed, “when the police conduct a search
in objectively reasonable reliance on binding appellate prec-
10                                   Nos. 14-3290 and 14-3506

edent.” 131 S. Ct. at 2434. This holding was based on the
reasoning that officers should be permitted to rely on police
practices specifically authorized by binding appellate prece-
dent. Id. at 2439.
    At the time of this search, there was no recognized expec-
tation of privacy in the common areas of a multi-unit apart-
ment building. See United States v. Espinoza, 256 F.3d 718,
723 (holding “tenants lack a legitimate expectation of priva-
cy in the common areas of multi-family buildings”); United
States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (hold-
ing “tenant has no reasonable expectation of privacy in the
common areas of an apartment building”); Henry v. City of
Chicago, 702 F.3d 916 (7th Cir. 2012) (“Absent certain particu-
lar facts not alleged here, there is no reasonable expectation
of privacy in common areas of multiple dwelling build-
ings.”). However, no appellate decision specifically author-
izes the use of a super-sensitive instrument, a drug-detecting
dog, by the police outside an apartment door to investigate
the inside of the apartment without a warrant. Therefore,
the officer could not reasonably rely on binding appellate
precedent, and the good-faith exception does not apply.
    Moreover, Kyllo was decided before the search of Whita-
ker’s apartment. The logic of Kyllo should have reasonably
indicated by the time of this search that a warrantless dog
sniff at an apartment door would ordinarily amount to an
unreasonable search in violation of the Fourth Amendment.
                       III. CONCLUSION
    Accordingly, we REVERSE the denial of Whitaker’s mo-
tion to suppress and REMAND for proceedings consistent
with this opinion.
