E.D.Wis.: Defendant had a reasonable expecation of privacy in a house he was moving into, but only had some stuff moved in

Defendant had a reasonable expectation of privacy in the house he was moving into. He was there rent-free while getting his stuff all there, and he’d spent the night a few times and had some things already there. Since the search occurred without a warrant and no exception applies, the search is suppressed. United States v. Rock, 798 F. Supp. 2d 992 (E.D. Wis. 2011):

Second, defendant manifested an intent to make this house his home by bringing belongings, including a bed, and his girlfriend to live with him. He set up the bed and slept for at least a short period of time before the officers arrived. While it is true that defendant left his other property in Milwaukee, the record shows that he planned to buy — and, in fact, did buy — necessary items, including an inflatable bed and clothing, in Illinois.

Third, defendant had the permission of Perez and Perez’s mother, the owners, to live in the house rent-free. The fact that defendant stayed at the grace of the Perez family and lacked a key does not defeat his expectation. See Olson, 495 U.S. at 98-100. As the Olson Court explained, society recognizes the value of permitting another, “in between jobs or homes,” to stay free of charge in a host’s home. Id. at 98. Nor can the poor condition of the house defeat defendant’s expectation. Many citizens live in dilapidated houses; they enjoy the same Fourth Amendment protection as the occupants of mansions. Importantly, the house had not been condemned by the City of Rockford prior to defendant’s arrest, despite the fact that police were apparently aware of it (and deemed it a gang house). And as the magistrate judge noted, only vague hearsay supports the notion that the back door was “off the hinges.”

The R&R: United States v. Rock, 2011 U.S. Dist. LEXIS 83229 (E.D. Wis. May 26, 2011):

The house was obviously in a state of disrepair; there was no running water, there was graffiti on the walls, the grass probably needed cutting, and the home lacked appliances and was later condemned. But there is no evidence that the house had been declared uninhabitable prior to the officers’ entry, and the protection of the Fourth Amendment is not limited to homes where all utilities function and are neatly maintained. The evidence demonstrates that Rock was present with the permission of the property owner, and rather than being present only for a limited purpose such as a business transaction or even a social gathering, see Carter, 525 U.S. at 90, at the time the officers searched the home, this was Rock’s residence. Although Rock arrived only a few hours before his arrest and the house was condemned shortly after his arrest, at the time of the officers’ entry, this was Rock’s home. In light of the fact that courts have repeatedly held that an individual possesses a reasonable expectation of privacy in the more transient dwelling of a hotel, the court finds no basis to require the satisfaction of an arbitrary temporal element so as to “vest” a person’s reasonable expectation of privacy in his residence.

As has been said in a variety of contexts, the Fourth Amendment draws a bright line at the threshold of a person’s home, see, e.g., Payton v. New York, 445 U.S. 573 (1980), and “[e]veryone has a legitimate expectation of privacy in his residence.” United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995). The evidence demonstrates that this was Rock’s home and thus he had a reasonable expectation of privacy in it.