In United States v. Lewis, the Second Circuit (Lohier, Carney, and Nathan) affirmed a gun-related conviction, but rejected the district court’s assertion that a bright-line rule bars the application of the Fourth Amendment to shared spaces in a multi-family building. The panel emphasized that the Fourth Amendment requires a fact-intensive analysis, and should not provide greater protection for residents of single-family homes than for apartment-dwellers or others in multi-family residences. Nonetheless, the diminished privacy interest applied to shared spaces, like apartment hallways and, as applicable here, porches, all but guarantees that single-family home residents will enjoy a greater level of constitutional protection than residents of multi-family homes.
There is one possible way that defendants who live in apartments might avoid the fate of diminished constitutional protection: Some commentators have noted the possibility of extending the curtilage doctrine to apartment buildings to generate Fourth Amendment protection for shared spaces like these. Here, the Second Circuit found that Lewis had not raised a curtilage argument in the district court, and declined to consider it. Thus there remains a viable opportunity for future litigants to use curtilage arguments to expand Fourth Amendment protections to shared spaces, and improve the “racial, ethnic, and class inequalities that result under current Fourth Amendment jurisprudence.” Criminal Procedure, Fourth Amendment, Sixth Circuit Holds That Apartment Hallway Wall Is Not Curtilage, United States v. Trice, 966 F.3d 506 (6th Cir. 2020), 134 Harv. L. Rev. 2879 (2021). Although the panel did not take this last step, it recognized that a constitutional doctrine that treats apartment dwellers as second-class citizen under the Fourth Amendment is not a good doctrine.
Background
In 2017, the New Haven Police Department obtained a search warrant for Vashun Lewis’s apartment. Lewis’s apartment was one of three apartments within a single house. The warrant said that the second floor apartment and the basement were the target locations of the search.
In executing the warrant, the police searched the second floor apartment, the basement—and a shared space, unenumerated in the warrant: a “small back porch (or landing area) off the ground-floor rear door of the three-story building,” which “opened into a common stairwell that led up to the second- and third-story apartments.” There, the police found a laundry basket, and inside it, a sock that contained a handgun and marijuana. Lewis was then charged in a two-count federal indictment with gun possession in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c)(1)(A)(i), and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Lewis filed a motion to suppress, arguing the search went beyond the parameters of the warrant. The government opposed this motion, arguing that Lewis had no expectation of privacy over the shared area where the gun was found. The district court ruled that Lewis did not have standing to pursue Fourth Amendment protection over the shared space, because “[i]t is well-settled in the Second Circuit that because an individual has no power to exclude another from a common area, a defendant has no legitimate expectation of privacy in [] ‘a common area that’s accessible to the other tenants in [a] multifamily apartment building.’”
Decision
The Second Circuit panel disagreed with the district court’s bright-line approach, and declined to find that “the Fourth Amendment always permits warrantless searches of shared areas in multi-unit buildings” (emphasis added). The court took pains to observe that the Fourth Amendment generally requires a fact-specific approach, and that “case-by-case evaluation of reasonableness” is the controlling standard. The court also noted that “[a] categorical rule regarding shared spaces would have the effect of extending greater constitutional rights to those with the means to reside in single-family dwellings or those who live outside of densely populated urban areas.”
Nonetheless, the panel affirmed the district court’s ruling. The panel noted that the district court had indeed “stated that Lewis’s suppression motion failed because he did not have exclusive control over the porch in the multi-unit dwelling.” But the panel found that this statement did not contain the sum total of the district court’s analysis, because “the court also went on to engage in a fact-specific, individualized assessment, noting that the porch was not ‘locked or closed off’ and could ‘be easily used by other individuals . . . visiting the building.’”
The panel also repeatedly underscored that “it was Lewis’s burden to establish that the search violated his Fourth Amendment rights,” and Lewis failed to make a record on the specifics of his privacy interest in the porch. Thus the panel found that this failure to adduce evidence, not the fact that the room was a shared space, required the district court’s decision be affirmed.
The panel also quickly disposed of sufficiency of the evidence and sentencing-related challenges, finding that the record amply supported the jury and judge’s determinations as to the pertinent facts.
Analysis
The panel’s decision was an important clarification, as it resoundingly rejected a bright-line rule eliminating Fourth Amendment protection for shared spaces. Yet the decision still highlights the Fourth Amendment’s uneven application to different types of homes. The logic of the opinion makes clear that a different analysis governs single- and multi-family homes—plainly thwarting the panel’s stated goal of an egalitarian regime for both contexts.
In general, the Second Circuit has adhered to the view that “[t]he core premise underlying the Fourth Amendment is that warrantless searches of a home are presumptively unreasonable.” United States v. Simmons, 661 F.3d 151, 156 (2d Cir. 2011); Frego v. Kelsick, 690 F. App’x 706, 708 (2d Cir. 2017) (“[A] warrantless home search is presumptively unreasonable.”). Here, the court repeatedly called the search “warrantless,” seemingly accepting that the search went outside the target locations specified in the warrant, and thus the warrant could not justify the intrusion on this portion of the home. No other exception—consent, or a protective sweep of the room—was mentioned. But despite this apparently “warrantless” search of a portion of the home, the court did not apply any presumption of unreasonableness. To the contrary, the court repeatedly emphasized that Lewis would bear the burden of showing that his rights were implicated. Thus it seems that a shared portion of a multi-family home will simply not receive the same presumptive protections as a single-family home when subjected to a warrantless search.
Circuits have split on whether shared spaces receive Fourth Amendment protection, with the majority holding that they do not. See Alexander Porro, Dwelling in Doubt: Do Tenants Have A Reasonable Expectation of Privacy in the Common Areas of Their Apartment Buildings?, 2018 U. Chi. Legal F. 333, 342 (2018) (collecting cases). While shared spaces may merit a more sensitive Fourth Amendment analysis than exclusively-controlled areas, this particular case highlights the oddity of placing much daylight between the single- and multi-family setting. The gun was found on a back porch in the rear of the home, in a laundry basket, inside a sock. Surely any resident would presume to have a relatively high degree of privacy over a space inaccessible to the public, and all the more privacy over the contents of a laundry basket, potentially holding intimates and other garments—even roommates generally can be expected not to rifle through laundry. Future litigants may well raise similar arguments to assert that shared spaces should be considered curtilage, or part of “the area to which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life.” Oliver v. United States, 466 U.S. 170, 180 (1984) (internal quotation marks omitted). A decision holding that shared spaces are curtilage would bring the court far closer to accomplishing the Lewis panel’s stated goal of granting single- and multi-family home dwellers equal protection under the law.
Finally, one wonders what the Supreme Court—so heavily focused on historical practice—will make of the application of the Fourth Amendment in the context of shared spaces in an apartment, should it take up this issue in a future term. On the one hand, it is not clear that many Americans lived in apartment dwellings at the time of the founding, when the country was predominantly rural. Indeed, only 5% of Americans lived in cities in 1790. On the other hand, viewed at the proper level of generality, it is difficult to believe that the Fourth Amendment’s reach goes no further than the front door of an apartment unit. The Lewis panel left open many questions for future litigants and courts to resolve, and defense counsel should continue to challenge the notion that the Fourth Amendment has no application in shared spaces within a multi-family apartment.
