holding that defendant exhibited subjective expectation of privacy in basement of duplex by hiding cocaine there and that expectation was objectively reasonable because basement was accessed by only landlord and defendant’s family members who occupied duplex
How later courts described this case
- holding that defendant exhibited subjective expectation of privacy in basement of duplex by hiding cocaine there and that expectation was objectively reasonable because basement was accessed by only landlord and defendant’s family members who occupied duplex
- explaining that the determination of whether a legitimate expectation of privacy exists involves a two-part inquiry, based on both the defendant’s subjective expectation of privacy and whether that expectation is objectively reasonable
- recognizing that, while it is the most obvious of the relevant factors, “a property right alone is not determinative of whether the individual reasonably expected freedom from governmental intrusion”
- finding that defendant had an objectively reasonable expectation of privacy in common area of duplex in part because both units in duplex were occupied by members of his immediate family
Written by the judges who cited it.
The opinion
COLE, Circuit Judge,
concurring.
I agree with the court’s conclusion that the district court did not err in determining that the affidavit in this case was sufficient to establish probable cause for the warrant to issue. See supra, Part II.A. Further, I concur with Judge Clay’s conclusion that the government violated the Fourth Amendment when one of its agents searched the basement of the duplex in which Kenneth King resided. Because I would arrive at this conclusion by somewhat different means than does Judge Clay, I write separately.
The Supreme Court recently reiterated the nature of our inquiry when analyzing whether a government search violates the Fourth Amendment:
Our Fourth Amendment analysis embraces two questions. First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he [sought] to preserve [something] as private.... Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.
Bond v. United States, 529 U.S. 334 , 120 S.Ct. 1462, 1465 , 146 L.Ed.2d 365 (2000) (internal citations and quotations omitted; brackets in original). There can be no real debate that King’s conduct exhibited an actual expectation of privacy: he placed contraband inside a shoe box and hid it in the basement rafters of the duplex within which he dwelled. See id. If hiding something within a shoe box in the rafters of the basement of one’s duplex or apartment building is not indicative of a person’s attempt to keep something private, I am at a loss for what is. As for the question of whether society is prepared to recognize *755 King’s expectation of privacy as reasonable, I have no doubt that the countless individuals who live in duplexes or double-family homes 1 expect that the common basements they share with other residents of their budding are both secured from intrusions by strangers and reserved for access only by other residents, invited guests, and perhaps their landlord and her agents. Indeed, we have held this to be so in the case of a multi-unit apartment building: “A tenant expects other tenants and invited guests to enter in the common areas of the building, but he does not [expect] trespassers.” United States v. Carriger, 541 F.2d 545, 551 (6th Cir.1976). Thus, unlike Judge Clay, I do not find the instant case to be so far from the rule of Carriger that it requires a different analysis.
Further, I am convinced that no reasonable officer operating within the bounds of this court’s jurisdiction would have been unaware that he needed a warrant describing with particularity the basement of a multi-unit building before he searched it. See id. at 552 . Nor am I persuaded by the notion, proposed by the dissent, that the basement in a duplex is part of an individual unit’s “curtilage.” The cases raised by the dissent in support of this theory concern the relationship of free-standing homes to surrounding land, not that of individual apartment units to a common basement, which may or may not be “immediately adjacent” to a particular unit. See Oliver v. United States, 466 U.S. 170, 180 , 104 S.Ct. 1735 , 80 L.Ed.2d 214 (1984); see also United States v. Dunn, 480 U.S. 294, 302 , 107 S.Ct. 1134 , 94 L.Ed.2d 326 (describing curtilage in that case as “a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house.”).
The government agents who searched King’s apartment set out to search only one unit of a “three-story duplex or double-family home.” If they wanted to search the structure’s separate, common basement, they should have demonstrated probable cause and obtained a warrant specifically permitting them to do so.
For the foregoing reasons, I respectfully concur in the judgment reached by the court.
. One of the FBI agents who executed the search of the King residence described the structure in which King dwelled as “a three-story duplex or double-family home.”