Duplex Case Analysis

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The decision appears inconsistent with prior Seventh Circuit precedent that the court does not cite, Wilson v. The Health and Hospital Corp. of Marion County, 620 F.2d 1201 (7th Cir. 1980).

In Wilson, a property owner filed a Section 1983 action over a warrantless and consentless search of a duplex.

The court rejected the defendant’s argument that there should be “plain view” and “open fields” exceptions to the warrant requirement.

First, the court found that nothing in the interior of the building was in plain view of the health officer while he was located where he had a right to be, on the outside; thus “plain view” analysis was inapplicable. Id., at 1209.

The court then stated, that, even if the interior were visible to the officer from the outside, the “open fields” exception would still not allow a warrantless search.

The court wrote, “Even if the exception would justify an entry upon the sighting of a health violation, however, nothing in the interior of the duplex has been shown to have been visible to the health official while he was on the outside, and there is no finding of what, if any, violations were visible to the official through the open doorways in the apartment house.” Id., at 1210.

In the case at bar, no criminal activity was visible to the officers from outside the duplex, even though the solid doors were open, and the screen door was closed but unlocked.

For the court in the case at bar to hold that the defendant had no subjective expectation of privacy, because the solid doors were open conflicts with the holding in Wilson, and effective adopts the “open view” exception that the court rejected in Wilson.

In Wilson, the plaintiff was the property owner, rather than a tenant; however, the distinction is not relevant. In a duplex, the owner and the two tenants all have equal access to the common areas, to the exclusion of everyone else.

The court wrote, “The open and unsecured nature of the premises upon which the district court relied did not prohibit the inspector from seeing what was visible from points at which he had a right to be, but that condition per se did not justify the subsequent warrantless entry.” Id., at 1213.

As noted, in the case at bar, Wilson is not even cited, and the two cases are arguably impossible to reconcile, on the issue of subjective expectations.

The court’s decision is also contrary to common objective expectations. Nobody would feel justified in entering a strange duplex, merely because an exterior solid door leading to common areas is open. The fact that two families live in the building, rather than one, makes no difference; a member of the public would not enter such a building, at least not without knowing that he is trespassing illegally, any more than he would walk into a strange single-family house.

Furthermore, people who live in duplexes have a common enterprise in securing the common areas from all but themselves and their guests. If one tenant routinely left the outside door unlocked, the other would likely complain to the landlord.

The court wrote that, where both tenants are engaged in a common heroin distribution scheme, they may have a “common interest in maintaining the privacy of the common hallway. Therefore, it would not be unreasonable for each occupant to conclude that the others would maintain the privacy of all occupants of the duplex to advance their common purpose.”

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This ignores the reality that all tenants who share a duplex have a “common interest in maintaining the privacy of the common hallway,” whether they are heroin dealers or law-abiding citizens.

Nor should the fact that the other tenants in the case at bar ran a business change the result. The opinion states that the other tenants’ sign advertising their business “listed a phone number and invited prospective customers to call for an appointment.”

If the door was always open for walk-ins, the court’s reasoning would be correct. But here, the door was not “always open.” Instead, customers were expected to call for appointments. This is consistent with an expectation of privacy — not the unlimited privacy that single-family owner has, but still enough privacy that strangers aren’t expected to just walk into the common areas uninvited.

So, despite the court’s holding, defense attorneys should continue to assert expectations of privacy in common areas of duplexes, citing both Wilson on the subjective issue, and common practices on the objective issue.

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David Ziemer can be reached by email.