The fourth amendment in the hallway: do tenants have a constitutionally protected privacy interest in the locked common areas of their apartment buildings?

• Author: Lewis, Sean M.
• Position: Note

INTRODUCTION I. EXAMINING CIRCUIT CASE LAW A. The Sixth Circuit Provides a Sound Starting Point B. The Majority Approach Is Unpersuasive and Should Be Rejected 1. The Second Circuit 2. The Seventh Circuit 3. The Eighth Circuit 4. The Ninth Circuit II. BROADLY INTERPRETING THE FOURTH AMENDMENT IS CONSISTENT WITH SUPREME COURT PRECEDENT A. McDonald v. United States Should Govern the Current Controversy B. The Supreme Court's Commitment to Protecting Privacy Near the Home III. A BROAD INTERPRETATION OF THE FOURTH AMENDMENT IS MOST CONSISTENT WITH THE AMENDMENT'S HISTORY AND THE FRAMERS' INTENTIONS IV. SOUND PUBLIC POLICY IN THE LOCKED COMMON AREA CONTEXT CONCLUSION INTRODUCTION

It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.

--Justice Jackson (1)

One afternoon, a police officer spots a man driving a Cadillac through a run-down neighborhood. (2) His interest piqued, the officer decides to follow the vehicle. The Cadillac soon comes to rest in front of an apartment building, and the driver, Jimmy Barrios-Moriera, removes a shopping bag from the trunk and enters the building. The moment Barrios-Moriera disappears within the doorway, the officer sprints after him because he knows that the door to the apartment building will automatically lock when it closes. He manages to catch the door just in time and rushes in. Barrios-Moriera is already halfway up a flight of stairs in the common hallway and ignores the police officer when he identifies himself and indicates a desire to speak with him. Barrios-Moriera continues up the stairs and sets his shopping bag on the floor beside him as he hurriedly tries to open his door. The police officer sprints up the stairs after him and arrives before Barrios-Moriera can do so. He thrusts his hand into Barrios-Moriera's bag and withdraws a rectangular-shaped object wrapped in tape. He then orders Barrios-Moriera to go into his apartment, where he arrests him for possession of cocaine with intent to distribute.

If this story unfolded in the Second, Seventh, Eighth, or Ninth Circuits, Barrios-Moriera would have no constitutional basis for complaint. (3) Each of these circuits refuses to recognize that a tenant has a reasonable expectation of privacy within the locked common areas of an apartment building for purposes of the Fourth Amendment. (4) The Sixth Circuit, on the other hand, stands alone (5) in maintaining that a tenant does have a constitutionally protected right to privacy in such areas. (6) This circuit split first arose in 1976, (7) and the issue remains very much in dispute today. (8) As the weight of precedent on each side of the divide continues to grow, there is an increasing need for the Supreme Court to resolve this important Fourth Amendment issue.

The Fourth Amendment protects persons against unreasonable searches and seizures. (9) This protection of privacy embodied within the Amendment is not limited to the home or other specified locales; (10) rather, it is aimed at the protection of the individual. (11) The Supreme Court interprets this protection broadly, so that "[w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." (12) This protection of the person extends to the guilty and the innocent alike, (13) but the question that remains is precisely what degree of protection the Fourth Amendment affords.

The answer to this question is found by an application of what has come to be known as the Katz test. (14) Justice Harlan first articulated this test in his concurring opinion in Katz v. United States, (15) where he stated, "there is a twofold requirement [for Fourth Amendment protection], first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as `reasonable.'" (16) In Katz, the Court held that the FBI's use of an electronic listening device attached to the outside of a telephone booth violated the defendant's Fourth Amendment privacy rights. (17) In so holding, the Court abandoned the traditional "trespass" doctrine upon which prior Fourth Amendment questions had turned. (18)

The Supreme Court subsequently adopted and refined Justice Harlan's standard as the binding test in Fourth Amendment cases. (19) Consequently, in every Fourth Amendment case, the Court first seeks to determine whether a person had, or should have had, an actual subjective expectation of privacy. (20) The Court will then consider whether that expectation was reasonable under the circumstances. (21)

This Note contends that the police practice of entering the locked common areas of apartment buildings without permission or a warrant violates the Constitution. Part I examines the conflicting approaches adopted by the circuit courts in this area and argues that the approach adopted by the majority of circuits is flawed. (22) Part II argues that interpreting the Fourth Amendment to protect tenants' privacy expectations within the locked common areas of their apartment buildings is most consistent with Supreme Court precedent in other Fourth Amendment cases. Part III argues that this broad interpretation of the Fourth Amendment is necessitated by the history of that Amendment and by the intent of the Framers. Part IV argues that a consideration of tenants' legitimate privacy interests, coupled with a respect for the rule of law, demands that the Court extend the protections of the Fourth Amendment to cover the locked common areas of multi-unit apartment buildings. This Note concludes that the Supreme Court should resolve this circuit split, which threatens the privacy and security of a large portion of the American population, by extending Fourth Amendment protection in the locked common area context.

1. EXAMINING CIRCUIT CASE LAW

   This Part critiques the conflicting approaches adopted by the circuit courts in the locked common area context and argues that the Sixth Circuit's approach is superior to that adopted by the majority of circuits. Section I.A argues that the Sixth Circuit's analysis represents a well-reasoned approach to the issue and provides a solid starting point for the Supreme Court's resolution of this Fourth Amendment issue. Section I.B argues that the Supreme Court should reject the position adopted by the majority of circuits because it is lacking in persuasive authority and meaningful analysis.

   1. The Sixth Circuit Provides a Sound Starting Point

      The Sixth Circuit's approach in locked common area cases establishes a firm foundation for the Supreme Court's resolution of this important constitutional issue. The Sixth Circuit takes a well-reasoned approach in these cases, relying on Supreme Court precedent and carefully considering the subjective expectations of tenants. In United States v. Carriger, (23) the Sixth Circuit first considered whether a government agent's entry, without permission or a warrant, into the locked common areas of an apartment building violated a tenant's Fourth Amendment rights. (24) In holding that such entry violated the defendant's rights, the court took a number of factors into consideration. First, it noted that Katz expanded the scope of protection offered by the Fourth Amendment. (25) Second, it took great care to analyze the facts and holding of United States v. McDonald (26) and compare them to the case at hand. In McDonald, the Supreme Court held that police officers' warrantless entry into the locked common areas of a rooming house violated the defendant's Fourth Amendment rights. (27) The Sixth Circuit adopted Justice Jackson's explanation of the Court's holding and concluded that, as the facts of McDonald and Carriger differed only in degree but not in kind, McDonald should govern the controversy before the court. (28) The Sixth Circuit noted that although government entry in Carriger was effected through guile, whereas in McDonald it was by force, this distinction in no way altered the tenant's subjective expectation of privacy and was therefore irrelevant to the court's Fourth Amendment analysis. (29) Finally, the court cited a Louisiana Supreme Court case, (30) a Fifth Circuit case, (31) and two Seventh Circuit cases (32) that were closely on point, concluding that these cases, taken together with Katz and McDonald, demanded a holding in favor of the defendant. (33) That is, the court held that a tenant does have a constitutionally protected privacy interest within the locked common areas of an apartment building, and an officer's entry into these areas without permission or a warrant violates the Fourth Amendment. (34) The Sixth Circuit subsequently reaffirmed this holding, stating that "any entry into a locked apartment building without permission, exigency or a warrant is prohibited [by the Fourth Amendment]." (35)

      The Sixth Circuit's treatment of this issue represents a well-reasoned approach to the question of whether tenants have a constitutionally protected privacy interest within the locked common areas of their apartment buildings. Its jurisprudence in this area, however, is but a starting point for the resolution of this important constitutional question. A thorough evaluation of this issue should articulate why the Sixth Circuit's approach is superior to that taken by the other four circuits that have examined the locked common area question. (36) Furthermore, a thorough evaluation must consider what role Supreme Court precedent, (37) the history of the Fourth Amendment and the intent of the Framers, (38) and the demands of public policy should play in this process. (39)

   2. The Majority Approach Is Unpersuasive and Should Be Rejected

      This Section criticizes the methodologies and holdings of the majority of circuits in locked common area cases and concludes that the...