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Search of apartment building basement okay under Fourth Amendment

United States v. Eugene A. Sweeney, 7th Circuit Court of Appeals No. 14-3785, 5/9/16

The police officers’ search of the basement of the apartment building where an armed robbery suspect lived was neither a trespass nor an invasion of the apartment dwellers’ curtilage. Thus, the gun found during the search was lawfully seized and not subject to suppression.

When police went to arrest Sweeney for an armed robbery, two officers went to his apartment while another went to the back of the building just in case he tried to evade them. Sure enough, Sweeney was arrested as he tried to leave by the back door, which was at the bottom of the common rear staircase. The staircase also descends into the basement, and after arresting Sweeney one officer went down into the basement and, in a crawl space, found a gun matching a description of the one used in robbery. (Slip op. at 2-4). Sweeney’s challenges to this search fail.

First, to claim a “trespass” under the property-based approach to Fourth Amendment issues from United States v. Jones, 132 S. Ct. 945 (2012), and Florida v. Jardines, 133 S. Ct. 1409 (2013), one must have possession of the property in question and the ability to exclude others from entrance onto or interference with that property. (Slip op. at 7-8). Sweeney can’t show that with respect to the basement:

…. He did not have any form of exclusive control over the basement. The basement was a common space, used by a number of residents. His lease gave him no exclusive property interest in any part of the area. It did not even give him the right to store items there.

Nor could Sweeney have excluded someone from the basement. Suppose Sweeney had discovered a non-resident taking shelter in the basement who refused to leave. He could call his landlord for aid, but Sweeney himself could not sue the intruder for civil trespass on his property. See State v. Dumstrey, 859 N.W.2d 138, 144 (Wis. App. 2014), aff’d, 873 N.W.2d 502 (Wis. 2016), quoting State v. Nguyen, 841 N.W.2d 676, 681 (N.D. 2013), for the proposition that tenant has no right to exclude “technical trespassers in the common hallways” of apartment building.

(Slip op. at 8).

Nor was the basement protected as curtilage to Sweeney’s home. While some court have categorically held that common basements of apartment buildings can’t be curtilage, the court doesn’t go that far here, but reaches its conclusion based on the standard test for determining curtilage from the factors listed in United States v. Dunn, 480 U.S. 294 (1987): The basement is remote from Sweeney’s second floor apartment; it is not enclosed with or intimate to Sweeney’s apartment; Sweeney had no particular use of the basement tied specifically or intimately with his apartment; and, while it afforded protection from the public, Sweeney did nothing to protect the area from observation or use by other tenants or their guests. (Slip op. at 9-13).

The court notes that “[a]pplying the Fourth Amendment to various common spaces in apartment buildings has been a source of considerable controversy.” (Slip op. at 5). As an illustration, see the cases dealing with searches in apartment building common area that the court cites: Dumstrey (no Fourth Amendment violation where police entered apartment building parking area, even though police blocked garage door from closing in order to gain entry); and United States v. Whitaker __ F.3d __ (7th Cir. 2016) (warrantless drug dog sniff at apartment door violated Fourth Amendment). The court distinguishes Sweeney’s case from Whitaker because the dog was being used to intrude into the protected privacy of the apartment interior. (Slip op. at 13-14).

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