UNIVERSITY OF THE DISTRICT OF - UDC Law Review

verbal notice of eviction.
Nor do I believe that the non-payment of rent would, without more, make the defendant’s expectation of
privacy unreasonable. … Moreover, in view of the mandatory and exclusive nature of [the aforementioned
statute], the fact that the landlady reserved a right to re-enter on the failure to pay rent is immaterial. It is the
better and more modern rule that a landlord entitled to possession by right of re-entry or otherwise must, on
the refusal of the tenant to surrender the leased premises, resort to the remedy given by law to secure it. Any
other rule is prejudicial to the public peace and order. …
The government argues alternatively that property law should not be controlling in determining the scope of Fourth
Amendment protections. It reasons that despite the invalidity of the notice of eviction the defendant could not have
had a reasonable expectation of privacy in any part of the cottage when the rent, electricity and telephone bills were
unpaid, and the landlady had informed him to be out of the premises by July 15. While persuasive in some respects, I
cannot agree with the government’s contention. Although the Supreme Court has stated that it is “unnecessary and illadvised”
to import property law concepts into the law surrounding Fourth Amendment rights, … it is obvious that this
was intended to broaden the protection afforded against unreasonable searches and seizures, not narrow it.
Furthermore, I am not prepared to hold that a defendant with a perfectly legal right to possession or occupancy of
leased premises can be found to have an “unreasonable” expectation of privacy.13.1
The reasoning in Botelho is generally sound. Although, as the court concedes, property law concepts are not necessarily
controlling on Fourth Amendment issues, the justified expectation of privacy which one has in his place of residence
certainly includes the expectation that the processes of the law rather than self-help will be utilized to terminate a tenant’s
occupancy.14 (or, for that matter, an owner’s occupancy14.1).
But the language in Botelho should not be taken to mean that no abandonment by the tenant is possible before the rental term
expires, for this is not the case.
The question of abandonment for Fourth Amendment purposes does not turn on strict property concepts but on
whether the accused has relinquished his interest in the property to the extent that he no longer has a reasonable
expectation of privacy in the premises at the time of the search. … This principle has been applied to find
abandonment where a tenant has left residential premises even though he may retain the lawful right to possession.15
This means that if by all appearances the tenant has vacated the premises by the time the lease has ended, then Botelho is
inapplicable, for there would be no occasion for the landlord to seek eviction in such circumstances.16 Thus, in United States
v. Wilson,17 where the tenant was over two weeks overdue with his rent, the landlord learned from neighbors that the tenant
had moved out, and the landlord went to the apartment in question and found the door standing open and the apartment in
disarray, the court quite properly held that the tenant had abandoned the apartment. “The proper test for abandonment,” the
court noted, “is not whether all formal property rights have been relinquished, but whether the complaining party retains a
reasonable expectation of privacy in the articles alleged to be abandoned.”18
It is a fair generalization that abandonment is more readily found as to rooms occupied on a transient basis. Thus, in Botelho
the court cautioned: “Because of the transitory nature of most motel and hotel rental arrangements, non-payment of rent in
that context might well require a different rule.” Illustrative is United States v. Parizo,19 where defendant rented a motel room
for a single night, paid only for one night, and never informed the desk that he wished to stay on beyond that time. After
check-out time the following day, the manager entered the room, saw a weapon, and summoned the police. In upholding the
police entry of that room, the court reasoned:
[W]hen the term of a guest’s occupancy of a room expires, the guest loses his exclusive right to privacy in the room.
The manager of a motel then has the right to enter the room and may consent to a search of the room and the seizure
of the items there found.20 …
Appellant argues that, notwithstanding the expiration of the rental period, his intent to retain possession of the
room remains the decisive factor and that we ordered the trial court to turn its decision upon findings bearing
upon whether he had such an intent. However, intentional abandonment is relevant in different factual
situations from the situation here. Had the search occurred during the rental period, appellant would have
standing to object to an unauthorized search of the premises, unless prior to the search he had abandoned the
premises, thereby forfeiting his right to occupancy and privacy. … Preliminary to the inquiry into intentional
abandonment by the defendant, it must be shown that the defendant had sufficient control over the premises to
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