UNIVERSITY OF THE DISTRICT OF - UDC Law Review

37.1 McKenney v. Harrison, 635 F.3d 354 (8th Cir.2011) (reasonable for police to conclude house abandoned where they “found the
house in disrepair, with an unkept yard and a fence that was incomplete and falling apart,” there “no vehicles parked in the
driveway,” no one “responded when the officers knocked on the front door,” “back door was open” and officers “could see into
kitchen, where the cabinets were open and empty, the refrigerator was open and empty,” and “there was no furniture or personal
effects” and “no lights on, sounds from appliances, or other indications that the house had electrical power”).
Compare State v. Carter, 54 So.3d 1093 (La.2011) (no showing officers “reasonably believed that the house was abandoned, as
detective merely stated conclusion that residence was “abandoned” and “did not testify that the house appeared abandoned,” and
“officers on the scene evidently did not report that they viewed a dilapidated structure boarded up and surrounded by overgrown
weeds, or that the officer came by a belief the home had been abandoned from any other reliable basis”).
38 State v. Finnell, 115 Ohio App.3d 583, 685 N.E.2d 1267 (1996). Compare State v. Perry, 124 N.J. 128, 590 A.2d 624 (1991) (no
search for officers to enter house “that appeared vacant and whose front door was not only unlocked but open”).
39 Thus, the court added, defendant’s “privacy interest in his vacant buildings is less than that of home owners in their homes, or
business owners in their business premises.” And if, which was unknown, defendant “uses the buildings for storage,” the court
added, “the city admits that his interest would be greater than if the buildings were completely empty.”
40 Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).
41 Even if “very limited.” McNairy v. State, 835 S.W.2d 101 (Tex.Crim.App.1991).
See also Martin v. United States, 952 A.2d 181 (D.C.App.2008) (where unconsented police entry of house, after which defendant
retrieved weapon from closet, trial court’s “no search” ruling in error, as “the Fourth Amendment was implicated as soon as the
police entered”).
41.1 As explained in United States v. Arellano-Ochoa, 461 F.3d 1142 (9th Cir.2006), whether “opening a screen door breaches a
reasonable expectation of privacy depends on the circumstances. During winter in a cold climate, people ordinarily keep the solid
door shut. About the only way for mail and package delivery people, solicitors, missionaries, children funding school trips, and
neighbors to knock on the door is to open the screen door and knock on the solid door. People understand that visitors will need to
open the screen door, and have no expectation to the contrary. The reason why people do not feel that their privacy is breached by
opening the screen door to knock is that it isn’t; the solid door protects their privacy.
”In the summer, when people leave their solid doors open for ventilation, the screen door is all that separates the inside from the
outside. People can get a resident’s attention by knocking on the screen door without opening it. Where the solid door is wide
open, the screen door is what protects the privacy of the people inside-not just their visual privacy, which it protects only partially,
but also their privacy from undesired intrusion. Where the solid door is open so that the screen door is all that protects the privacy
of the residents, opening the screen door infringes upon a reasonable and legitimate expectation of privacy.”
42 Or, indeed, even a tent, for though “a tent may not provide the sturdy protection against the winds, the rains, the heat, and the cold
which a customary house provides, the tent-dweller is no less protected from unreasonable government intrusions merely because
his dwelling has walls of canvas rather than walls of stone.” Kelley v. State, 146 Ga.App. 179, 245 S.E.2d 872 (1978). See also
United States v. Sandoval, 200 F.3d 659 (9th Cir.2000) (defendant had expectation of privacy as to tent, closed on all 4 sides and in
area “heavily covered by vegetation and virtually impenetrable,” on Bureau of Land Management land, without regard to whether
he had permission, as “camping on public land, even without permission, is far different from squatting in a private residence,” and
defendant “was never instructed to vacate or risk eviction”); People v. Schafer, 946 P.2d 938 (Colo.1997) (defendant had
reasonable expectation of privacy as to interior of his tent where he “camping on unimproved publicly accessible land which was
neither fenced nor posted”); Alward v. State, 112 Nev. 141, 912 P.2d 243 (1996) (defendants “had an objectively reasonable
expectation of privacy in the tent,” which was “their temporary residence,” notwithstanding fact they “camped on land managed by
the Bureau of Land Management”).
Or, indeed, even a fish house, “erected and equipped to protect its occupants from the elements and often providing eating,
sleeping, and other facilities.” State v. Larsen, 650 N.W.2d 144 (Minn.2002).
Compare United States v. Ruckman, 806 F.2d 1471 (10th Cir.1986) (cave in which defendant residing on land owned by U.S. and
controlled by Bureau of Land Management not within Fourth Amendment’s protection).
For more on the expectation of privacy in tents and other camping shelters, see Note, 26 U.Mem.L.Rev. 293 (1995). For more on
the expectation of privacy of those trespassing on federal lands, as in Sandoval, see Comment, 50 Emory L.J. 1357 (2001).
See also State v. Pruss, 145 Idaho 623, 181 P.3d 1231 (2008) (defendant had reasonable expectation of privacy in his “hooch,” a
camouflaged frame structure in the woods with a backpacking tents erected inside wooden frame).
43 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
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