Two cases on REP

Putting property in somebody else’s basement was a waiver of an expectation of privacy. Commonwealth v. Williams, 453 Mass. 203, 900 N.E.2d 871 (2009):

In applying these factors to this case, we conclude that the judge ruled correctly that the defendant lacked a reasonable expectation of privacy in the basement area in which she had deposited some possessions. The defendant clearly did not own the area, nor did she have a lease or other property interest. She lacked permission to stay there. Nor did she control access to the area: the tenants of the building used the basement for storage; members of the defendant’s family had access for maintenance or other purposes; and other people apparently could enter, as the police did, by going through an unlocked door. The judge was correct to conclude that any subjective expectation of privacy the defendant may have had was not objectively reasonable. See Commonwealth v. Welch, supra at 654 (no reasonable expectation of privacy where defendant shared room in common with other fire fighters and lacked ability to exclude others from room); Commonwealth v. Montanez, supra at 301-302 (even if defendant had subjective expectation of privacy in space above hallway ceiling, expectation not reasonable where hallway was common area open to public and defendant neither owned nor controlled space). See also Commonwealth v. Hawkins, 139 F.3d 29, 32 (1st Cir.), cert. denied, 525 U.S. 1029 (1998) (“It is now beyond cavil in this circuit that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building”). Once it is determined that the defendant had no reasonable expectation of privacy in the basement area, she cannot challenge the police action that occurred there.

Private searchers’ replacement of the evidence did not “resuscitate” a reasonable expectation of privacy. State v. Rowley, 2009 UT App 33, 623 Utah Adv. Rep. 27, 204 P.3d 198 (2009):

[*P10] In the instant case, just as in Jacobsen, Mithun, and State v. Miller, 2004 UT App 445, 104 P.3d 1272, the private party who performed the original search effectively “resealed” the container in which the evidence was found. We agree with the Mithun court that a private party’s replacement of the items back into a vehicle is no more significant than the items having been found in a mailed package and replaced therein. Rowley’s expectation of privacy in the contents of his truck was lost when his parents searched his truck and seized the evidence. Father’s replacement of the evidence back into the truck in no way resuscitated Rowley’s expectation of privacy, especially in light of the fact that Father had already informed the authorities of the evidence’s existence and where it was located. The Officer’s subsequent search of the truck was therefore not a violation of Rowley’s constitutional protections, unless it exceeded the scope of the prior search performed by Father and Mother.