UNIVERSITY OF THE DISTRICT OF - UDC Law Review

1 Search & Seizure § 2.3 (4th ed.)
Search And Seizure: A Treatise On The Fourth Amendment
Current through the 2011 Update
Wayne R. LaFavea0
Chapter 2. Protected Areas and Interests
§ 2.3. Residential premises
Introduction
Prior to the decision in Katz v. United States,1 the Supreme Court often used the concept of “a constitutionally protected
area”2 to define the reach of the Fourth Amendment’s protections. One such area, specifically enumerated in the Amendment,
is a person’s house. Indeed, one’s dwelling has generally been viewed as the area most resolutely protected by the Fourth
Amendment.3 “At the very core,” the Court cautioned in Silverman v. United States,4 “stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.” This constitutional protection of houses has
been extended to other residential premises as well, including apartments,5 hotel and motel rooms,6 and rooms in rooming
houses7 or hospitals.8
Katz teaches that the Amendment “protects people, not places,” and that the “constitutionally protected area” concept cannot
“serve as a talismanic solution to every Fourth Amendment problem.” But even under the Katz justified-expectation-ofprivacy
approach, it is still useful to view residential premises as a place especially protected against unreasonable police
intrusion. As Justice Harlan noted in his concurring opinion in Katz, “reference to a ‘place’ ” is ordinarily necessary in
deciding what protection the Fourth Amendment affords to people. And it is still true, he added, that “a man’s home is, for
most purposes, a place where he expects privacy.”8.1 The concern herein is with what police investigative practices, when
directed at residential premises, do not intrude upon a protected privacy expectation as to those premises.
(a) Abandoned premises. It has often been held that if a defendant has in fact abandoned the place where he formerly
resided, then he may not have suppressed from evidence what the police find on those premises after the time of
abandonment. Sometimes such a holding is premised on the conclusion that by abandonment the defendant lost standing to
object,9 sometimes on the notion that the landlord was in a position to give effective consent after the abandonment
occurred,10 and sometimes upon the general proposition that the abandonment terminated any justified expectation of privacy
which the defendant previously had with respect to those premises.11 The concern here is with what constitutes such an
abandonment that it may be fairly said the one-time occupant no longer has a protected expectation of privacy in the
residence.12
One question which arises with some frequency is what it takes to terminate a tenant’s justified expectation of privacy as to a
house or apartment he had been renting. May it be said, for example, that this expectation ends merely by virtue of
nonpayment of rent by the tenant, or must the landlord pursue established legal procedures for eviction Instructive on this
question is United States v. Botelho,13 where the oral lease of a cottage was from period to period with payments of rent to be
prepaid every two weeks. After the tenants were delinquent in the rental payments and also failed to pay electricity and
telephone bills, the landlady informed them they would be evicted on July 15 unless all bills were paid by July 14. No money
was received, so she entered on the 15th, observed a sawed-off shotgun, and then summoned the police, who searched the
cottage. The landlady later instituted summary eviction proceedings, but before they could be carried to their completion the
tenants vacated the premises about the end of July. No rental payments were ever received for the period following June 30.
In holding that the tenants had a justified expectation of privacy in the cottage at the time of the search, the court reasoned:
Rephrased in the terms of Justice Harlan’s test, it is the government’s argument that the notice to vacate
terminated defendant’s tenancy and therefore any expectation of privacy he may have had was unreasonable.
It seems to me that this argument would be sound except for the fact that the notice given by Mrs. MacIsaac
on July 10th was clearly inadequate under Hawaii law. … The requirement of written notice is not a paper
formality because statutes providing for possessory or summary remedies of a landlord against a tenant must
be strictly construed. … Accordingly, the tenancy of the premises was not terminated by Mrs. MacIsaac’s
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