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Do Tenants Have a Reasonable Expectation of Privacy in the Common Areas of Their Apartment Buildings? Alexander Porro

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Do Tenants Have a Reasonable Expectation of Privacy in the Common Areas of Their Apartment Buildings? Alexander Porro University of Chicago Legal Forum Volume 2018 Article 15 2019 Dwelling in Doubt: Do Tenants Have a Reasonable Expectation of Privacy in the Common Areas of Their Apartment Buildings? Alexander Porro Follow this and additional works at: https://chicagounbound.uchicago.edu/uclf Recommended Citation Porro, Alexander (2019) "Dwelling in Doubt: Do Tenants Have a Reasonable Expectation of Privacy in the Common Areas of Their Apartment Buildings?," University of Chicago Legal Forum: Vol. 2018 , Article 15. Available at: https://chicagounbound.uchicago.edu/uclf/vol2018/iss1/15 This Comment is brought to you for free and open access by Chicago Unbound. It has been accepted for inclusion in University of Chicago Legal Forum by an authorized editor of Chicago Unbound. For more information, please contact [email protected]. Dwelling in Doubt: Do Tenants Have a Reasonable Expectation of Privacy in the Common Areas of Their Apartment Buildings? Alexander Porro† I. INTRODUCTION The United States Constitution resolutely protects the right to privacy and the freedom from government intrusion. The Fourth Amendment of the Constitution provides: “The right of people to be se- cure in their persons, houses, papers, and effects, against unreasona- ble searches and seizures, shall not be violated.”1 A search “occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.”2 The profoundness of this guarantee of pro- tection is demonstrated by its extension to both innocent and guilty people alike.3 However, over the years, courts have disagreed over the degree of protection that the Fourth Amendment affords. Currently, the federal circuit courts are split as to whether a ten- ant who lives in an apartment has a reasonable expectation of privacy in the common areas of their building under the Fourth Amendment. The First, Third, Seventh, Eighth, and Ninth Circuits hold that ten- ants do not have a reasonable expectation of privacy in the common areas of their apartments.4 These Circuits reason that because com- mon areas are open to people beyond the control of each tenant (e.g., † B.A. 2013, Yale University; J.D. Candidate 2019, The University of Chicago Law School. Many thanks to Professor Lior Strahilevitz for his guidance and insightful comments, The Uni- versity of Chicago Legal Forum board and staff (both past and present) for their helpful edits and suggestions, and my beautiful wife Alinna for her love and support. 1 U.S. CONST. amend. IV. 2 United States v. Jacobsen, 466 U.S. 109, 113 (1984). 3 See McDonald v. United States, 335 U.S. 451, 453 (1948). 4 See, e.g., United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (holding that the de- fendant tenant did not have a reasonable expectation of privacy in the common areas of their apartment building); United States v. Correa, 653 F.3d 187, 188 (3d Cir. 2011) (same); Harney v. City of Chicago, 702 F.3d 916, 925 (7th Cir. 2012) (same); United States v. Brooks, 645 F.3d 971, 976 (8th Cir. 2011) (same); United States v. Nohara, 3 F.3d 1239, 1241 (9th Cir. 1993) (same). 333 334 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2018 other tenants, delivery people, the landlord, other authorized individ- uals), they are not protected under the Fourth Amendment.5 These Circuits also hold that, because common areas are not protected by the Fourth Amendment, evidence obtained by law enforcement officers from these areas is admissible in court proceedings. The Sixth Circuit is the only circuit that recognizes that tenants have a reasonable expectation of privacy in the common areas of their apartment buildings, at least when the door is locked.6 The Sixth Cir- cuit agrees that people beyond the tenants’ control can enter the com- mon areas, but there is an actual expectation of privacy from the gen- eral public and trespassers.7 In 2001, the Sixth Circuit reaffirmed this holding, stating that “any entry into a locked apartment building without permission, exigency or a warrant is prohibited.”8 Under the Sixth Circuit’s approach, evidence accumulated by law enforcement officers in common areas of apartment buildings is protected by the Fourth Amendment, and thus inadmissible in court proceedings.9 This Comment will argue that while the position of the Sixth Cir- cuit is preferable to the positions held by the majority of circuits, it is still too narrow. The Sixth Circuit’s analysis could be made stronger by incorporating other common law privacy doctrine-based argu- ments—namely, that the common areas in apartment buildings should be considered part of a tenant’s curtilage. This Comment will then argue that existing Supreme Court precedent and the curtilage doctrine should allow courts to recognize that tenants do enjoy a rea- sonable expectation of privacy in the common areas of their apartment buildings. Further, this Comment will argue that extending Fourth Amendment protections to common areas in apartment buildings is good public policy. Treating privacy protections afforded to houses dif- ferently from those afforded to apartments could disproportionately affect the poorest citizens in society and incentivize unjust law en- forcement practices. In The Wire, we are exposed to this disparate treatment when officers Carver, Hauk (“Herc”), and Pryzbylewski (“Prez”) travel to The Terraces, a Barksdale-controlled high-rise public housing project, in the middle of the night after feeling frustrated with 5 See United States v. Eisler, 567 F.2d 814, 816 (8th Cir. 1977). 6 See United States v. Carriger, 541 F.2d 545, 550 (6th Cir. 1976) (holding that a tenant has a constitutionally protected privacy interest within the locked common areas of an apartment building, and an officer’s entry into these areas without a warrant or permission violates the Fourth Amendment). 7 Id. at 551. 8 United States v. Heath, 259 F.3d 522, 534 (6th Cir. 2001). 9 Carriger, 541 F.2d at 550. 333] DWELLING IN DOUBT 335 the progress of their case against the Barksdale drug operation.10 In an attempt to intimidate the Barksdales, we witness all three officers harass, threaten, and strip-search two innocent Terrace residents, one of whom was simply carrying his laundry back to his apartment.11 Moments later, Prez encounters Kevin Johnston, a fourteen-year-old kid, eating a bag of chips and mouthing off while leaning on the hood of their police cruiser.12 Prez proceeds to pistol whip Johnston in the face causing him to be hospitalized and ultimately, to lose his left eye.13 This Comment believes that poorer law-abiding tenants, whose lack of resources force them to live in crime-ridden apartment com- plexes, such as The Terraces, should not be subject to unreasonable searches without probable cause. As such, law-abiding tenants could benefit from a more accurate application of Fourth Amendment priva- cy protections to the common areas in (and around) their homes.14 Finally, this Comment will examine new perspectives that can po- tentially help resolve this circuit split. This Comment will first explore alternative models of Fourth Amendment protection outside the rea- sonable expectation of privacy standard. In addition, this Comment will argue that the determination of protections afforded to common areas based on whether they are locked or unlocked is arbitrary and should be eliminated. Thus, the discussion proceeds as follows: Part II of this Comment will provide an overview of the development of Fourth Amendment protection and how it has been interpreted by courts, summarizing the more notable decisions. Part II will then provide an overview of the curtilage doctrine, its limitations, and a definition of “common areas” for the purposes of this Comment. Part III will provide a summary of the circuit split that currently exists in the federal circuits. Part IV will argue that tenants should have a reasonable expectation of priva- cy in the common areas of their apartment building under the Fourth Amendment by pointing to supportive Supreme Court precedent and showing how the curtilage doctrine can fit into the current analysis. Part IV will also examine the larger public policy implications of granting unequal levels of Fourth Amendment protection to single- family homes and multi-unit dwellings. Finally, Part V will discuss how exploring alternative models of Fourth Amendment protection could improve circuit court analyses. In the end, this Comment hopes 10 The Wire: The Detail (HBO television broadcast June 9, 2002) (Season One, Episode Two). 11 Id. 12 Id. 13 Id. 14 This could not actually be known without studying the effects of Fourth Amendment pri- vacy rights expansion on crime control. 336 THE UNIVERSITY OF CHICAGO LEGAL FORUM [2018 to provide an updated perspective on this circuit split and address the uneven distribution of Fourth Amendment privacy protection between individuals living in single-family homes and those living in apart- ment buildings. II.THE FOURTH AMENDMENT AND RELATED DOCTRINES A. Overview of the Fourth Amendment The Fourth Amendment of the United States Constitution pro- tects people from unreasonable searches and seizures. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei- zures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the per- sons or things to be seized.15 The word “unreasonable” is not defined in the Constitution. As a re- sult, there has been considerable debate over the scope of the protec- tions afforded by the Fourth Amendment. Further, “the application of the ‘exclusionary rule’ to evidence ob- tained in violation of the amendment has made the determination of its protections a crucial, if not dispositive, issue in many criminal prosecutions.”16 In attempting to outline the extent of Fourth Amendment protec- tions, the courts have relied substantially on the trespass doctrine and property concepts.
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