UNIVERSITY OF THE DISTRICT OF - UDC Law Review

In the present case, the detectives observed appellant while they were standing outside the motel in an area
used by guests or persons having business there. As an occupant of the motel, appellant only shared in the
property surrounding the motel whereas if he were a homeowner, he would have exclusive enjoyment of his
property.
The occupants of the motel room had no right to expect any privacy with relation to what they did inside the
window as it was within easy view of those utilizing the motel surroundings. It is not unreasonable to hold
motel residents to the expectation that persons using the motel area might peer into open windows.
Other courts have likewise held that it is not a search for the police to look into a motel room from the parking lot or a similar
area used by the public,107 or for the police to listen with the naked ear from such a vantage point108 or from an adjoining
room.109 By like reasoning, similar conduct in a public area or adjoining room of a hotel110 or rooming house111 is deemed
not to be a search. Apartment dwellers fare no better. It is not a search for an officer to look into an apartment while in a
common passageway112 or other common area113 of the apartment complex, or to listen from an adjoining apartment.114
Moreover, at least when the hallways of the apartment building have not been made inaccessible to the general public,115
listening with the naked ear from the hallway outside a particular apartment is not deemed to intrude upon any justified
expectation of privacy of the apartment’s occupants.116 In United States v. Llanes,117 for example, where a narcotics agent
overheard incriminating comments by standing in the hallway near the imperfectly hung apartment door, the court declared
“that conversations carried on in a tone of voice quite audible to a person standing outside the home are conversations
knowingly exposed to the public.”
Decisions such as Llanes are particularly worrisome, for they leave the unfortunate resident of a multiple-occupancy dwelling
with very little privacy. For the reasons stated so well by Professor Amsterdam, it would appear that this line of authority has
diminished the privacy of such persons “to a compass inconsistent with the aims of a free and open society.”118 After
accurately predicting that Katz would undergo a “rapid transmutation into a rule to the effect that if an officer conducts his
observations from a vantage point accessible to the general public and uses no artificial aids to vision, he is clear of the
amendment,”119 Amsterdam asks:
Is this a satisfactory result It does not seem so to me. The problem began, I think, when the simplification of Katz
began, in terms of categorical concepts such as “privacy.” People who live in single houses or well-insulated
apartments tend to take a rather parochial view of privacy. Because we are accustomed to having something
approaching absolute privacy when we lock our outer doors, we tend to conceive of privacy as an absolute
phenomenon and to denigrate the importance of degrees of privacy. To us it seems intuitively evident that anything a
person does within sight or hearing of his neighbors or the general public is not private—and that, as to such things, it
makes no difference whether they are observed by a neighbor or a policeman—because we retire to our homes when
we want real privacy. But if you live in a cheap hotel or in a ghetto flat, your neighbors can hear you breathing
quietly even in temperate weather when it is possible to keep the windows and the doors closed. For the tenement
dweller, the difference between observation by neighbors and visitors who ordinarily use the common hallways and
observation by policemen who come into the hallways to “check up” or “look around” is the difference between all
the privacy that his condition allows and none. Is that small difference too unimportant to claim fourth amendment
protection120
The argument is a compelling one, and justifies the conclusion that conduct such as that in Llanes should not go entirely
unregulated. And while it may be true that “no court is going to say that policemen may not enter apartment hallways without
a search warrant, it would be quite possible for a court to say that police entries into apartment hallways are ‘searches’
subject to some lesser form of regulation.”121
Even if courts do not go this far (and there is unfortunately no evidence to date that they are inclined to embrace the
Amsterdam approach), the Katz justified-expectation-of-privacy approach should nonetheless be interpreted to give the
resident of a multiple-occupancy structure greater protection than he had under the pre-Katz trespass rule. In particular, as
perhaps the Supreme Court is coming to realize,122 courts should not bestow the nonsearch appellation upon police
surveillance (1) which does not occur at a “public vantage point”123; or (2) which is offensive in its intrusiveness in the sense
that it uncovers that which the resident may fairly be said to have protected from scrutiny by the “curious passerby.”124
With respect to the first point, it is useful to consider the facts of Cohen v. Superior Court.125 After receiving an anonymous
tip that prostitution was occurring in a particular fourth-floor apartment at a certain address, officers went to those premises
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