CA7 gives an interesting historical and current summary of “the Supreme Court[‘s] … reviv[al of] a ‘property-based approach to identify unconstitutional searches.”

Defendant had no reasonable expectation of privacy in the basement area of an apartment building. Neither was it curtilage. The court includes an interesting historical and current summary of “the Supreme Court[‘s] … reviv[al of] a ‘property-based approach to identify unconstitutional searches.” United States v. Sweeney, 2016 U.S. App. LEXIS 8534 (7th Cir. May 9, 2016):

Applying the Fourth Amendment to various common spaces in apartment buildings has been a source of considerable controversy. In cases decided before Jardines, we held that warrantless police intrusions into shared spaces in apartment buildings much like the basement here did not violate the Fourth Amendment rights of tenants. United States v. Villegas, 495 F.3d 761, 767-68 (7th Cir. 2007) (internal duplex hallway); United States v. Concepcion, 942 F.2d 1170, 1172 (7th Cir. 1991) (shared entrance to apartment building); cf. United States v. Boden, 854 F.2d 983, 990 (7th Cir. 1988) (common area of rental storage unit facility). More recently, based on the intervening Supreme Court decision in Jardines, we have held that bringing a police dog to sniff for drugs outside an apartment door amounts to a search of the apartment interior that requires a warrant. United States v. Whitaker, ___ F.3d ___, Nos. 14-3290, 14-3506, 2016 U.S. App. LEXIS 6655, 2016 WL 1426484, at *4 (7th Cir. April 12, 2016).

. . .

1. The Fourth Amendment and Trespass

In recent years, the Supreme Court has revived a “property-based approach” to identify unconstitutional searches. Jones, 132 S. Ct. at 950; see also id. at 949 (“The text of the Fourth Amendment reflects its close connection to property … .”). Under this approach, where the government has “physically occupied private property for the purpose of obtaining information,” its intrusion is a search subject to the Fourth Amendment. Id. at 949. In Jones, police officers trespassed upon an “effect”—a car—by attaching a GPS tracker to its chassis. In Jardines, officers trespassed upon a “house”—a home’s porch—by conducting a dog-sniff at the front door.

To establish a Fourth Amendment violation under this approach, there must be some trespass upon one of the protected properties enumerated by the Constitution’s text. This in turn requires courts to consider the scope of trespass at common law. Jones, 132 S. Ct. at 949 (Fourth Amendment case law historically “tied to common-law trespass”). Neither Jones nor the common law provides sharp boundaries for the meaning of trespass for our purposes. See Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 90-91 (2012) (“The term ‘trespass’ could be understood as embracing a wide range of ideas.”); see also Kyllo v. United States, 533 U.S. 27, 31-32, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (collecting cases that analyze meaning of trespass in Fourth Amendment context). The Restatement approach to trespass is a good starting point. See Laurent Sacharoff, Constitutional Trespass, 81 Tenn. L. Rev. 877, 891 (2014) (endorsing Restatement (Second) of Torts as best authority for discerning meaning of trespass for Jones inquiry).

Under the relevant Restatement definition, trespass means that one “enters land in the possession of the other.” Restatement (Second) of Torts § 158 (Am. Law Inst. 1965); see also Jones, 132 S. Ct. at 949, quoting Entick v. Carrington, 95 Eng. Rep. 807, 817 (C.P. 1765), for the proposition that “no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all … .” Possession means “occupancy of land with intent to control it.” Restatement (Second) of Torts § 157. And occupancy means to “manifest a claim of exclusive control of the land.” Restatement (Second) of Torts § 157 cmt. a. Put together, then, to prove a claim of trespass, one must have possession of the property in question and the ability to exclude others from entrance onto or interference with that property.

Sweeney cannot show any trespass on his property. 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, 2015 WI App 5, 359 Wis. 2d 624, 859 N.W.2d 138, 144 (Wis. App. 2014), aff’d, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502 (Wis. 2016), quoting State v. Nguyen, 2013 ND 252, 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.

Rather, as Judge Adelman explained, any such trespass would be a trespass against the building owner, not against any individual tenants. See, e.g., Aberdeen Apartments v. Cary Campbell Realty Alliance, Inc., 820 N.E.2d 158, 166 (Ind. App. 2005) (collecting cases holding that landlord can sue for trespass to common areas of multi-unit dwellings); Commonwealth v. Thomas, 358 Mass. 771, 267 N.E.2d 489, 491 (Mass. 1971) (collecting cases and affirming denial of motion to suppress under very similar circumstances); Motchan v. STL Cablevision, Inc., 796 S.W.2d 896, 900 (Mo. App. 1990) (concluding that “a landlord, who retains control of common areas in a multi-tenant building, also retains possession of those areas so as to support an action for trespass to the common areas”). Only the building owner or landlord could bring suit, so only the owner or landlord could have objected to Officer Gasser’s warrantless search of the crawl space under the stairs.

Accordingly, even if Officer Gasser committed a trespass, it was not Sweeney’s right under long-established tort law to exclude him. But whether or not there was a trespass, Sweeney also faces a separate obstacle: he cannot establish that police set foot onto an area for which the Fourth Amendment affords Sweeney protection.

Not all trespasses by law enforcement are violations of the Fourth Amendment. See Oliver v. United States, 466 U.S. 170, 183-84, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). For instance, under the “open fields” doctrine an officer may search for evidence on private land not within close proximity to a home on the property. Jardines, 133 S. Ct. at 1414, citing Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924); Andree v. Ashland County, 818 F.2d 1306, 1315 (7th Cir. 1987). To violate the Fourth Amendment, the trespass must occur on a “constitutionally protected area”—that is, one explicitly enumerated in the text of the Fourth Amendment. Jardines, 133 S. Ct. at 1414, quoting United States v. Knotts, 460 U.S. 276, 286, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983) (Brennan, J., concurring). This includes the home, which extends to the “curtilage” of the home as well. Id.

The basement was not recognizable as curtilage of Sweeney’s apartment. See United States v. Redmon, 138 F.3d 1109, 1128 (7th Cir. 1998) (en banc) (Evans, J., concurring) (“In a multi-unit apartment building there may in fact be no curtilage except perhaps in a separate area—like a basement storage locker—subject to one’s exclusive control.”). Other courts have held, often categorically so, that common basements of multi-unit buildings or closely related spaces are not part of the individual units’ curtilage. United States v. Brooks, 645 F.3d 971, 975-76 (8th Cir. 2011) (staircase leading to shared basement space in apartment building); United States v. King, 227 F.3d 732, 753 (6th Cir. 2000) (basement of a two-family dwelling); United States v. Cruz Pagan, 537 F.2d 554, 558 (1st Cir. 1976) (common basement garage of condominium building); Thomas, 267 N.E.2d at 491 (basement of three-story, six-unit apartment building, containing common space with laundry facilities); see also Carol A. Chase, Cops, Canines, and Curtilage: What Jardines Teaches and What It Leaves Unanswered, 52 Houston L. Rev. 1289, 1303 (2015) (“Generally speaking, appellate courts that have considered whether common areas in a multi-family dwelling are part of the curtilage of a dwelling have been reluctant to recognize curtilage protection for those areas.”).

It is not necessary to decide categorically here that the basement of a multi-unit residential building is or is not always the curtilage of individual units. It is enough to say that it was not in this case. Curtilage is a common-law concept often defined in abstract terms. See Jardines, 133 S. Ct. at 1414-15 (curtilage includes all of the “branches and appurtenants” of the home), quoting 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769); id. at 1415 (curtilage is that part of the property “intimately linked to the home, both physically and psychologically”), quoting California v. Ciraolo, 476 U.S. 207, 213, 106 S. Ct. 1809, 90 L. Ed. 2d 210 (1986); United States v. French, 291 F.3d 945, 951 (7th Cir. 2002) (curtilage is the “area outside the home itself but so close to and intimately connected with the home and the activities that normally go on there that it can reasonably be considered part of the home”), quoting Siebert v. Severino, 256 F.3d 648, 653-54 (7th Cir. 2001). At bottom, the underlying test is practical. If the Fourth Amendment shields the “right of a man to retreat into his own home” free from intrusion, then it must also protect against an officer “stand[ing] in a home’s porch or side garden” like a bold snooper looking for evidence or peering through the windows. Jardines, 133 S. Ct. at 1414.

In most cases it is easy to say what the curtilage is. See Jardines, 133 S. Ct. at 1415. A porch, a small fenced-in yard, a gated walkway along the side of a house—all are obviously part of the curtilage. This common-sense understanding saves courts, police officers, and citizens from needing to apply nebulous, ad hoc, case-by-case standards with great uncertainty. Oliver, 466 U.S. at 181-82; United States v. Redmon, 138 F.3d 1109, 1138 (7th Cir. 1998) (en banc) (Rovner, J., dissenting).

When we encounter novel questions about the scope of curtilage, we take into account the four Dunn factors: “(1) the proximity of the area in question to the home; (2) whether the area is included in an enclosure surrounding the home; (3) how the owner uses the area; and (4) the measures taken to protect the area from observation.” Bleavins v. Bartels, 422 F.3d 445, 451 (7th Cir. 2005), citing United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987). In this case these factors show that the search here did not occur in any curtilage of Sweeney’s apartment.

First, proximity: the basement was remote from the second-floor apartment, and Sweeney did not have a private basement storage space that was searched. There was no concern that officers might be able to prevent Sweeney from his right to “retreat into his own home” or that they could other-wise “observe his repose from just outside the front window.” Jardines, 133 S. Ct. at 1414.

Second, an enclosure surrounding the home: Sweeney argues that the basement was within the “enclosure” of the apartment building’s walls, accessible only from within the individual apartments or by a locked rear door. Under Dunn, though, the question is not whether the area at issue was within the walls of the building, but whether it was enclosed and intimate to Sweeney’s apartment itself. It was not.

Third, the nature of the use: Sweeney had no particular use of the basement that tied it to his own apartment. It served primarily as a shared laundry facility and location for utilities for all tenants. Sweeney did not use it for activities “intimately linked” to his home.

Fourth, measures taken to protect the basement from observation by the public: This factor is a little more favorable to Sweeney. On one hand, as a basement space within a locked apartment building, it was unlikely to be seen by a member of the general public. On the other hand, there was no door to the basement itself once one was inside the back of the building, and tenants often allowed outsiders into the basement to do laundry. There is no evidence that Sweeney himself took affirmative steps to protect the basement area from observation. See State v. Dumstrey, 2016 WI 3, 366 Wis. 2d 64, 873 N.W.2d 502, 514 (Wis. 2016) (noting, in context of apartment parking garage, the curtilage inquiry “is not whether the [area] is generally shielded from the public at large,” but rather whether the person “has taken steps to shield the [area] from the view of passersby within the [area]“). While this last factor gives Sweeney a little ground for argument, when all factors are taken together, the basement was not within the curtilage of Sweeney’s apartment. The trespass or property-right theory for Fourth Amendment protection did not give Sweeney any rights in the basement crawl space.

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