MS: Using ladder to look over wall in rented storage unit wasn’t a “search” and did not violate any REP

Officers used a ladder to look over a ceilingless wall in a storage building into defendant’s leased unit. The observation led to a search warrant. Defendant had no reasonable expectation of privacy from that look because anyone there could do the same thing, and it wasn’t a “search.” Fisher v. State, 2022 Miss. LEXIS 289 (Nov. 17, 2022):

P28. In sum, Fisher leased a storage unit without a ceiling in a commercial facility that was accessible not only by management but also by many others. Additionally, Building 3 was controlled by management, which was entitled to allow anyone it desired to have access to the building, to search the building’s common area, and to use the facility’s ladder. Based on these factors, Fisher did not have a reasonable expectation of privacy in the contents of the ceilingless unit as seen from a ladder. Thus, the officers’ use of a ladder to look into the unit leased by Fisher was not a search under the reasonable expectation of privacy test.

P29. When the officers climbed a ladder and looked into Fisher’s storage unit, they did not conduct a search under the Fourth Amendment of the United States Constitution or article 3, section 23, of the Mississippi Constitution. The officers were positioned in a common area with the permission of the building owner when they saw the bundles in the unit. Fisher likewise did not have a subjective or reasonable expectation of privacy in objects that were visible to the officers from the ladder. Because no search occurred, there was no violation of Fisher’s rights under either the Fourth Amendment or article 3, section 23.

The court could have found waiver, but didn’t.