IL: No REP in an ice fishing shanty

Defendant did not have a complete reasonable expectation of privacy in an icy fishing shanty because it was not a place where people slept. A conservation officer approached the shanty and overhead the occupants talking about the quality of their “weed,” and he entered. Motion to suppress denied. People v. Slavin, 964 N.E.2d 150, 2011 IL App (2d) 100764 (2011):

[**P17] Defendant contends that, although the occupants of the shanty were not living or camping there, in many cases a person’s expectation of privacy in a dwelling does not depend on where he or she sleeps. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (referring to “the mistaken premise that a place must be one’s ‘home’ in order for one to have a legitimate expectation of privacy there”). Defendant asserts that activities of a personal nature take place in a shanty just as they do in a tent, despite there not being any sleeping arrangements (see Larsen, 650 N.W.2d at 149), and that many fishermen seek isolated areas for their pursuits because they do not want to be disturbed (Pruss, 181 P.3d at 1236). …

[**P18] We observe that, unlike in the cases cited by defendant, where the tent-like structures were used for dwelling purposes, the shanty in this case bore no similarities to a dwelling place. The shanty did not even contain a sleeping bag, which could indicate that defendant had expected to stay the night. As pointed out by the State, there is a distinction between overnight guests, who have a reasonable expectation of privacy, and people with a mere transitory presence on the premises at the time of a search, and this distinction is crucial to the fact that a person in this particular ice shanty had no expectation of privacy as someone in a camping tent would. See, e.g., People v. Brown, 277 Ill. App. 3d 989, 994-95, 661 N.E.2d 533, 214 Ill. Dec. 679 (1996) (mere transitory presence on the premises at the time of the search is insufficient to establish a legitimate expectation of privacy); People v. Delgado, 231 Ill. App. 3d 117, 119, 596 N.E.2d 149, 172 Ill. Dec. 870 (1992) (mere status as the sole occupant of girlfriend’s mother’s residence at time of search is not sufficient to establish a legitimate expectation of privacy); United States v. Rigsby, 943 F.2d 631, 636 (6th Cir. 1991) (presence of tent, in which no one was apparently residing, did not create a privacy interest in the otherwise nonprivate area surrounding it).

Noted in Network World.