UNIVERSITY OF THE DISTRICT OF - UDC Law Review

were locked and could only be opened by a key or by someone within activating a buzzer system. A federal agent slipped
into the building by holding the door when several workmen exited the premises; he then went to the third floor via a
stairway, where he observed an exchange of drugs in the hallway. Relying upon Justice Jackson’s concurring opinion in
McDonald v. United States,55 the court in Carriger held that the “officer’s entry into this locked apartment building without
permission56 and without a warrant of any kind was an illegal entry and violated appellant’s Fourth Amendment rights.” The
court reasoned:
We cannot agree with the district court that McDonald may be distinguished upon the basis that it proscribed a
forcible entry into an apartment building while the entry here was peaceable. Whether the officer entered
forcibly through a landlady’s window or by guile through a normally locked entrance door, there can be no
difference in the tenant’s subjective expectation of privacy, and no difference in the degree of privacy that the
Fourth Amendment protects. A tenant expects other tenants and invited guests to enter in the common areas of
the building, but he does not expect trespassers.
Other courts have reached the same conclusion upon similar facts,57 but there are also quite a few cases to the contrary,58
which now represent “the majority position.”58.1 One court distinguished Carriger in answering in the negative the question
“whether tenants in a large, high-rise apartment building, the front door of which has an undependable lock that was
inoperable on the day in question, have a reasonable expectation of privacy in the common areas of their building.”59
We have seen that the absence of a lock on the premises is typically viewed as manifesting that hallways and other common
areas are open to the public when the place is an apartment building, hotel or motel, but not when the place is a one-unit
residence. What then if the place is a rooming house The better view is represented by State v. Titus,60 holding that except
in the case in which it is very obvious from other circumstances that the rooming house is open to the general public,61 a
rooming house is to be treated in this respect as if it were a single-unit dwelling, so that an unlocked or even open outer door
cannot be treated by the police as alone manifesting an invitation to enter.62 As explained in Titus:
This holding does not extend to common hallways in unlocked apartment buildings, which generally serve
only to connect separate, self-contained living units typically complete with all of the traditional living areas
(i.e., bathrooms, dining rooms, living rooms, kitchens, etc.). Interior hallways in rooming houses are protected
only by virtue of linking such traditional rooms within the house—they provide rooming house residents with
the only means of access to those rooms, and are an inseparable feature of their “home.” In other words, it is
not any inherent nature of a hallway that controls, but rather what the hallway links (i.e., individual selfcontained
living units versus shared traditional living areas).
Like analysis is called for when the police have entered other areas of a multiple-occupancy structure, such as an attic,63 a
basement64 or parking facility.65 Observations therein do not constitute a Fourth Amendment search if that area is readily
accessible to the public, but do if the area in question has been sufficiently secured so as to give the tenants a justified
expectation of privacy in that place. In making that determination, it must be kept in mind that not all multiple-occupancy
buildings should be treated in like fashion; there is, for example, a difference between “a two-family dwelling such as a
duplex” and a large apartment building.66 In all such cases, however, it must be remembered that the fact the area is not open
to the general public merely means that the police cannot constitutionally enter that area without express permission. Certain
persons, such as the landlord or his representative,67 may consent to police entry into a common area even when the character
of that area is such that it cannot be said there was an implied invitation to the general public to enter.
Finally, it should be noted that a search-by-entry can occur without the necessity of the officer fully intruding his person
inside the residence. Dinkens v. State68 is such a case. There, an officer who had been advised that defendant had a pistol
under his dwelling went there and, after finding no one home, walked to the rear of the house, reached into a small vent
underneath the house and found the pistol. Characterizing this as “an intrusion into the home itself,”69 the court held the
officer had conducted a search by making that intrusion into the householder’s privacy. Authority in accord with Dinkens is
to be found,70 although one pre-Katz case held that such an area is “not within the protection of the Fourth Amendment.”71
The better view is that such action is a search which, because it is not highly intrusive, would be reasonable in somewhat
broader circumstances than would permit a complete physical entry into a residential unit.72
What then of the situation in United States v. Concepcion,73 where the police arrested the defendant, found keys on his
person, used one of them to unlock an apartment in a nearby apartment house, and then used the information that defendant
had access to this apartment to induce him to consent to a search of it In response to the defendant’s claim that the consent
was the fruit of an illegal search, the court first noted that a “keyhole contains information-information about who has access
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