UNIVERSITY OF THE DISTRICT OF - UDC Law Review

It is also necessary to distinguish abandoned premises from those which are merely unoccupied, for justified privacy
expectations are not totally lacking as to the latter. The point is illustrated by State v. Finnell,38 where the owner of vacant
residential structures challenged city code provisions regarding warrantless inspection of the interior of vacant buildings. The
city argued “that no reasonable expectation of privacy exists in a location without the occurrence of intimate and personal
activities traditionally associated with the home,” but the court responded that “this is not the appropriate test.” Emphasizing
that the defendant “is the owner and maintains both possession and control of the building” and “regulates access to the
building,” the court concluded that he had “a subjective expectation of privacy” in those premises “that is reasonable-albeit
an expectation that is protected to a lesser extent than such expectations where the owner is active and the site was in
productive use.”39
(b) Entry of residence. The home “is accorded the full range of Fourth Amendment protections,”40 for it is quite clearly a
place as to which there exists a justified expectation of privacy against unreasonable intrusion. It is beyond question,
therefore, that an unconsented police entry41 (sometimes involving no more than the opening of a screen door)41.1 into a
residential unit, be it a house or an apartment or a hotel or motel room,42 constitutes a search within the meaning of Katz v.
United States.43 Moreover, this Fourth Amendment protection (and thus this search characterization of an entry) extends even
to “occupants of flimsily constructed dwellings with unobstructed windows or other openings directly on public lands,
streets, or sidewalks, who failed to lock their doors to bar entrance.”44
Sometimes the police or a person acting on their behalf will resort to a subterfuge in order to gain entry into a home.
Illustrative is Lewis v. United States,45 where an undercover narcotics agent falsely identified himself as “Jimmy the
Pollack” and claimed that a mutual friend had told him defendant might be able to supply marijuana, at which the defendant
received the agent into his house and sold him marijuana there. The Court was not sympathetic to the defendant’s contention
that his justified expectation of privacy in his home had been breached:
[W]hen, as here, the home is converted into a commercial center to which outsiders are invited for purposes of
transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a
store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept
an invitation to do business and may enter upon the premises for the very purposes contemplated by the
occupant.
The breadth of the Lewis exception, especially as to the kinds of deception which are permissible, is considered elsewhere in
this Treatise.46
It is not improper for a police officer to call at a particular house and seek admission for the purpose of investigating a
complaint or conducting other official business. If admission is voluntarily granted by a person who is in a position to give
such effective consent,47 then the policeman may enter and make observations while therein consistent with the scope of the
permission he was given.48 But the mere fact that the door of the house is opened in response to the officer’s knock or ring
does not mean that the officer is entitled to walk past the person so responding into the interior of the residence.49 Nor may
the officer enter the home when there is no response at all.49.1, even if the door is open.49.2 As stated in State v. Crider50:
It is not unreasonable for police officers, in the pursuit of criminal investigations, to seek interviews with
suspects or witnesses at their homes, but their right to call upon them at their homes for such purposes does
not include the right to walk in uninvited merely because there is no response to a knock or a ring.
The court in Crider pointed out that the “mere presence of a hallway in the interior of a single family dwelling, without more,
is not in itself an invitation to the public to enter,” so that police entry only into the hallway “must be viewed as an intrusion
into an area in which the defendant was entitled to a reasonable expectation of privacy.”51
The Crider rule is applicable to a building which contains only one residential unit, and does not carry over in its entirety to
such multiple-occupancy structures as apartment buildings, hotels and motels. As Crider elaborates:
Police officers in the performance of their duties may, without violating the constitution, peaceably enter upon the
common hallway of a multiple dwelling without a warrant or express permission to do so. … There is no invasion of
privacy when a policeman without force enters the common hallway of a multiple-family house in the furtherance of
an investigation.52
This is somewhat of an overstatement. It is correct when the circumstances indicate that the hallway is readily accessible to
the general public,53 but not otherwise. For example, in United States v. Carriger54 the entrances to the apartment building
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