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Evicted tenant has no Fourth Amendment rights

A tenant who has been served notice of a writ of restitution loses any expectation of privacy in the premises.

Judge Joel Flaum wrote for the 7th Circuit on April 25, “given that [the tenant] had notice that his continued occupancy had been adjudged to be unlawful, we have no difficulty concluding that he lacked any objectively reasonable expectation of privacy in the premises. Thus, no illegal search occurred requiring the suppression of the gun evidence.”

The tenant, Marcus Curlin, stopped paying rent to his landlord in June 2008. The landlord obtained a writ of restitution Nov. 14, requiring Curlin to vacate by Nov. 17, and notice was given to Curlin.

On Dec. 2, the writ was executed by county sheriff’s deputies, who had been informed prior to execution that Curlin was a convicted felon, and that there were firearms and marijuana in the home.

Marijuana and firearms were discovered during a protective sweep of the home when the officers executed the writ, and Curlin was charged in federal court with possession of firearms by a felon.

Curlin moved to suppress the evidence, but the district court denied the motion, holding that the protective sweep was reasonable in light of the officers’ safety concerns, and the seizures were justified because the weapons were in plain view.

The court held in the alternative that, even if the protective sweep was unreasonable, suppression was not required because the officers inevitably would have discovered the weapons in carrying out the eviction.

Curlin pleaded guilty, while preserving the right to appeal the denial of the suppression.

The 7th Circuit affirmed, but on a different ground than put forth by the district court, or by the government in its briefs. The circuit court held that Curlin had no reasonable expectation of privacy in the residence once he was served with notice of the writ of restitution.

Comparing Cullin to a burglar, the court concluded, “Curlin’s presence was ‘wrongful,’ and consequently any subjective expectation of privacy he may have had is not ‘one that society is prepared to recognize as “reasonable.”’

Although that holding was dispositive, the court added that the Fourth Amendment would not have been violated even if Curlin had a reasonable expectation of privacy, because the officers were lawfully on the premises and the guns were in plain view.

In addition, because the writ gave the officers authority to sell any property found in the residence to satisfy the restitution order, the court held that the officers had a lawful right to access to any property in the residence.

Analysis

Although not binding precedent on Wisconsin state courts, the opinion is likely to be highly persuasive because of the lack of precedents from Wisconsin courts on this issue.

The only Wisconsin precedent that addresses it at all is State v. Whitrock, 161 Wis.2d 960, 468 N.W.2d 696 (1991). Whitrock, however, is of very limited value because of its unique factual pattern. The defendant was not a tenant in the process of eviction, but a guest of a guest of the tenant who was being evicted.

The Wisconsin Supreme Court held that, under those circumstances, Whitrock lacked a reasonable expectation of privacy.

But the opinion offers little guidance when the defendant is a lawful tenant, albeit one behind on his rent. The majority opinion stresses in footnotes repeatedly that the opinion would not apply to a traditional tenant.

However, when cases do arise in Wisconsin on facts similar to those in the case at bar, there will still be a legitimate issue about exactly when a tenant’s Fourth Amendment rights terminate.

The 7th Circuit’s opinion appears to suggest that the expectation of privacy terminates when the tenant has notice that he must vacate, and not before.

At one point, the court wrote, “Had Curlin’s landlord not obtained an eviction order OF WHICH CURLIN HAD NOTICE, the analysis would be different (emphasis added).”

Later, the court wrote, “But given that Curlin had notice that his continued occupancy had been adjudged to be unlawful,” he had no reasonable expectation of privacy.

Here, Curlin had actual notice; the writ of restitution had been delivered to him not once, but twice.

Arguably, however, constructive notice should suffice, even in the absence of actual notice. A writ of restitution cannot be obtained without serving the tenant a summons and complaint informing him of the pending court hearing.

If actual notice, rather than just constructive notice, is required to trigger the loss of Fourth Amendment rights, a tenant who does not bother to appear in court would have greater rights than one who does; a seemingly unjust result.

Thus, it could be argued that, even if the tenant does not appear, once the writ is issued, the tenant has constructive notice that his occupation is unlawful, and he loses any reasonable expectation of privacy in the unit.

But the Wisconsin Administrative Code may dictate a different result.

A dissent by Chief Justice Shirley Abrahamson in Whitrock addressed the issue, and opined that a tenant has a legitimate expectation of privacy until he vacates the unit or is removed. Whitrock, 468 N.W.2d at 713. It may be a dissent, but it is the only opinion on the issue from any member of the court, and it has support in the Code.

Wis. Admin. Code ATCP 134.06(2) provides that a tenant does not “surrender” the premises until he vacates the property or a writ of restitution is executed.

In addition, ATCP 134.02(12) defines “tenant” to include a person holding over until he is removed via execution of a writ of restitution.

As a result, Abrahamson’s dissent appears to be sound on the question of when a tenant loses a reasonable expectation of privacy in Wisconsin.

What the Court Held

Case:    U.S. v. Curlin, No. 10-3033.

Issue:    Does a tenant in the process of eviction have a reasonable expectation of privacy in the unit or his possessions?

Holding:    No. Once the tenant has notice that a writ of restitution has been issued, he has no reasonable expectation of privacy.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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