E.D.Wis.: Defendant showed REP in fire damaged restaurant’s office

Defendant had the burden of showing his reasonable expectation of privacy in heavily fire damaged premises, and he showed he retained a reasonable expectation of privacy in the basement office area suffering only water and smoke damage. The first floor was open to the world, but the basement was not and it was “perilous” to even attempt to get to it. United States v. Rahman, 2011 U.S. Dist. LEXIS 155131 (W.D. Wis. November 10, 2011):

The court concludes that when it comes to determining Rahman’s expectation of privacy, the circumstances present at the time of the search control. On the date of search, from the perspective of the investigators at the scene and Rahman himself, Rahman was the valid lease-holder of the property. Subsequent actions, even if characterized as retroactive so as to cover the time of the searches, cannot terminate a reasonable expectation of privacy any more than some after-the-fact paperwork could serve to retroactively create a reasonable expectation of privacy where none had existed.

Considering all the relevant factors, although the court considers it to be a very close call, the court concludes that the nature and the extent of the damage affecting the basement was not so extensive so as to eliminate any reasonable expectation of privacy in the basement. Entering the basement would have violated the city’s condemnation order but the court cannot easily dismiss the fact that “private effects … remain[ed] on the fire-damaged premises,” Tyler, 436 U.S. at 505, which in this case included items such as receipts, (Docket No. 31 at 128; see also Ex. D-6 (depicting toolset)). Therefore, it is the conclusion of this court that a person who exhibits an actual or subjective expectation of privacy in the basement of the destroyed restaurant would have an interest that society should recognize as reasonable.