Defendant rented an outbuilding as a residence from a person on probation. His separate room was not subject to the landlord’s probation search waiver. In addition, one doesn’t have to lock his residence to have a reasonable expectation of privacy in it. State v. Thomas, 2020 MT 222, 2020 Mont. LEXIS 2283 (Sept. 1, 2020):
[*P15] We turn first to consideration of Thomas’s legitimate expectations of privacy in the outbuilding he rented from Paris—his primary residence. From our review of the record, the District Court misapprehended the evidence in concluding Paris and Thomas to be “roommates” and the outbuilding rented by Thomas to be part of Paris’s residence. The undisputed evidence established an arms-length rental arrangement between Paris and Thomas providing Thomas exclusive control over the outbuilding as his primary residence. While Thomas may have had access to Paris’s residence, she did not have similar access to his residence. While Thomas’s residence did not contain some functions ordinarily associated with a separate and distinct dwelling, it was indeed used as Thomas’s separate and distinct dwelling. Thus, the District Court’s findings that Paris and Thomas were roommates and his “room” was part of Paris’s residence are clearly erroneous and not supported by substantial evidence.
[*P16] Next, we consider whether Thomas’s legitimate expectation of privacy in his residence was diminished by Paris’s probation conditions, specifically the condition permitting warrantless searches at any time, day or night, of all places in her residence where she has access including private rooms of other persons with whom she resides, unless those rooms are locked and she does not have access to those rooms. Thomas does not contest the probation search of Paris’s residence—only that the search exceeded the scope of the authorized probationary search. We agree with Thomas. Stasiak knew of and approved the arms-length rental relationship between Paris and Thomas and, as such, knew Thomas to have exclusive control over the outbuilding where he resided. The misdemeanor sentencing order and the terms and conditions of probation signed by Paris reduced Paris’s rights of privacy in her person and residence, but did not govern Thomas. One does not lose his or her privacy rights in his or her residence merely because he or she rents the residence from a person on probation. Thomas was not on probation and not subject to probationary searches. Thomas’s rights to privacy in his person and residence were not diminished by Paris’s probationary status or the rules applicable to her probation.
. . .
[*P19] The District Court misapplied Finley, giving it an excessively broad interpretation. Were we to accept this interpretation, the exception to warrantless searches would nearly swallow the federal and state constitutional protections against such. This case is completely distinguishable from Finley. Here, unlike Finley, Paris and Thomas are not married or even in a relationship with each other. Instead they entered into an arms-length rental arrangement providing Thomas exclusive control and possession over the outbuilding which he used as his primary residence. Unlike Finley, where Finley’s wife shared the living space and bedroom where the safe was located—the area searched—Thomas did not share his residence with Paris but instead Paris permitted Thomas to use her bathroom and kitchen facilities. Thomas did not have to lock his outbuilding residence to have a legitimate expectation of privacy in it.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)