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Duplex search lawful

By: dmc-admin//August 6, 2007//

Duplex search lawful

By: dmc-admin//August 6, 2007//

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What the court held

Case: U.S. v. Villegas, No. 05-2678.

Issue: Does a tenant of a duplex have a reasonable expectation of privacy in the duplex’s common areas?

Holding: No. Unless there are facts showing a common enterprise between the two units’ occupants, no expectation of privacy exists.

A resident has no reasonable expectation of privacy in the common areas of a duplex, the Seventh Circuit held on July 27.

In 2004, two Milwaukee police officers assigned to the gang squad were investigating Ricardo Villegas and Ephraim Munoz, when they received a report that they were drinking beer outside of a duplex owned by Villegas’s sister.

Villegas and his sister lived on the first floor, and another unrelated couple named the Franklins lived in the second, also running a business out of the property, and making appointments with clients and meeting them on the property.

The duplex had two entrances, each with a solid inner door and an outer screen door, that led to a common hallway, and a staircase leading to the basement.

When the officers arrived at the property, the inner doors of both entrances were open and the screen doors, while closed, were unlocked. One of the officers entered the property into the common hallway.

When Villegas exited the first floor unit into the common hallway, the officer identified himself, after which Villegas dropped a bag of marijuana.

Villegas was charged in federal court with one count of illegal re-entry, and one count of possession of marijuana. He moved to suppress the evidence, but District Court Judge J.P. Stadtmueller denied the motion.

After conviction, Villegas appealed, but the court of appeals affirmed in a decision by Judge Kenneth F. Ripple.

The court concluded that Villegas failed to demonstrate either an objective or a subjective expectation of privacy with respect to the common hallway.

Although the solid outer doors leading to the hallway normally were kept closed and locked, those doors were open on the day of the entry.

Addressing the subjective component, the court concluded, “Exposing the activities within the common hallway to the world is inconsistent with a subjective expectation of privacy, particularly when the other occupants of the duplex, the Franklins, ran a business from the property that was advertised by a sign in front of the building.”

Turning to the objective component, the court also concluded that Villegas had no reasonable expectation of privacy.

The court noted that, because the common hallway was the sole regular access to both units, the Franklins and anyone desiring access to the Franklins’ home, including their customers, had to pass through the hallway to reach the Franklins’ unit.

For support, the court cited several decisions holding that, in multi-family apartments, tenants lack an expectation of privacy in common areas. The court also noted that Villegas was not related to the Franklins, such that the whole duplex could be considered a single dwelling.

The court acknowledged cases from other circuits, holding that tenants do have a reasonable expectation of common areas of a duplex, but the court found them distinguishable.

In one case, both units of the duplex were occupied by members of the same family. In addition, the common area at issue was a basement that was only accessible to the tenants.

In another, the residents of both units were co-conspirators in a heroin distribution operation, and thus, had a common interest in maintaining the privacy of the common hallway.

Finding that the cases merely emphasize the fact-dependent nature of the inquiry into the reasonableness of an expectation of privacy in a particular place, the Seventh Circuit found them distinguishable, and held that, in this case, Villegas had none.

Accordingly, the court affirmed.

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Case Analysis

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Judge Rovner wrote a separate concurring opinion, arguing that it is unnecessary in this case to determine whether Villegas has a reasonable expectation of privacy in the common areas.

Because the officers had probable cause to arrest Villegas (knowing that he was in the country illegally), his statements to police were admissible, even if the entry was unlawful.

Rovner also took issue with the lead opinion’s analysis of the Fourth Amendment issue.

Rovner opined that the relevant inquiry should not be whether the common areas are accessible to other tenants, b
ut whether the hallway is accessible to the public at large.

Rovner warned, “by declaring that residents have absolutely no expectation of privacy in such areas, we are necessarily saying that the police are free to enter these areas without the consent of any resident of the building and once there walk drug-sniffing dogs up and down hallways, eavesdrop outside of individual unit doorways, and so forth. I believe that such intrusions defy the reasonable expectations of those who live in buildings with secured common areas (emphasis in original).”

However, Rovner acknowledged that, where the door to a common area is unlocked, as in this case, a police officer could think the hallway was open to the public.

Click here for Case Analysis.

David Ziemer can be reached by email.

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