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Expectation of Privacy — Multi-Unit Common Area (Basement)

State v. Garry C. Eskridge, 2002 WI App 158, PFR filed 6/14/02
For Eskridge: Gregory Bates

Issue: Whether a tenant had an expectation of privacy in the basement area of a multiple unit apartment building.

Holding: A tenant’s expectation of privacy in the common areas of multiple unit buildings is decided on a case by case basis. ¶10. Because the state offered credible testimony — specifically believed by the trial court — that third parties had unfettered access to the basement of this four-unit building, the defendant did not have a subjective expectation of privacy. ¶13. (State v. Trecroci, 2001 WI App 126, ¶35, 246 Wis. 2d 261, 630 N.W.2d 555, distinguished.) Nor, applying the six-factor Trecroci ¶36 test, could the defendant’s expectation of privacy have been objectively reasonable:

  • he didn’t have complete dominion and control and the right to exclude others, because this was a laundry area that was uncordoned and openly accessible to other tenants. ¶17, citing United States v. McGrane, 746 F.2d 632, 633-34 (8th Cir. 1984) (no reasonable expectation of privacy in common area of basement of two-story, four-unit apartment building where the area was accessible to all tenants and the landlord);
  • he didn’t take precautions customarily taken by those seeking privacy, in that the door to the building was customarily unlocked, which made this area accessible to nontenants as well as tenants. ¶18, embellishing State v. Titus, 707 So.2d 706, 711 (Fla. 1998) (holding of reasonable expectation of privacy in an apartment building common area doesn’t extend to common areas of unlocked apartment buildings
  • “Historical notions of privacy do not seem to encompass ‘common areas’ in apartment buildings.” ¶19, citing: “Penny v. United States, 694 A.2d 872, 875 (D.C. 1997) (in holding that there was no reasonable expectation of privacy in the basement of a multi-unit building, the court relied in part on the fact that the tenant did not have the authority to exclude others from the common area of the basement that was entered and searched); United States v. Hawkins, 139 F.3d 29, 32-33 (1st Cir. 1998) (the unenclosed area of the basement of the apartment building was a common area for which the defendant as a tenant had no reasonable expectation of privacy); United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993) (court observed that ‘[m]ost other circuits agree a tenant does not have a reasonable expectation of privacy in an apartment building hallway or other common area.’).”

This discussion, on objective expectation of privacy, is clearly dicta, the court having already disposed of the case on the basis of the subjective analysis. For discussion on expectation of privacy in common area of duplex and apartment building, see U.S. v. Dillard, 6th Cir No. 04-4191, 2/27/06; U.S. v. Villegas, 7th Cir No. 05-2678, 7/27/07 (especially, concurrence).

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