W.D.N.Y.: There’s no standing in a dilapidated building def occupies knowing it was de facto condemned

Defendant put a mattress in a dilapidated building that he knew the city wanted unoccupied because it was unsafe. Therefore, the court concludes he has no standing. United States v. Rounds, 2015 U.S. Dist. LEXIS 117174 (W.D.N.Y. September 2, 2015):

Here, Rounds stayed in the Property contrary to City directives and knew it. Brodfuehrer told Rounds on January 22, 2008 that he was not allowed to be in the Property. As noted above, Rounds’s own affidavit in support of standing concedes that he had some awareness of inspections and violations concerning the Property. Rounds had to have had this awareness by October 29, 2009; putting a later awareness in his affidavit would make no sense and would serve no purpose. Rounds’s awareness of violations dovetails with the absence of a new or updated Certificate of Occupancy for the Property. See Buffalo, NY City Charter Ch. 129, § 129-1 (“No building hereafter erected shall be used or occupied in whole or in part until a certificate of occupancy shall have been issued by the Commissioner.”), available at http://ecode360.com/13581851 (last visited September 2, 2015). That Rounds has exposed a discrepancy between City housing policy and enforcement may or may not reflect poorly on the City, but it does not reflect on society at large. In a conflict between the legal principle of a violation and the fact of an unenforced violation, society will not create an objective expectation of privacy by letting the former yield to the latter. To hold otherwise would undermine the City’s police power to control nuisance properties and would reward squatters and other unlawful occupants who don’t get caught. This is where Rounds’s argument for standing fails.

Since Rounds lacks standing to challenge the search and seizure of October 29, 2009, the Court recommends that assessing other aspects of the search and seizure is unnecessary.