UNIVERSITY OF THE DISTRICT OF - UDC Law Review

44 United States v. Moss, 963 F.2d 673 (4th Cir.1992).
45 Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).
46 See § 8.2(m).
47 On who may consent, see §§ 8.4, 8.5. As noted there, some persons who could not give a valid consent to a full search of the
residence (e.g., children residing there) might nonetheless be able to consent to entry of a policeman to that area where visitors are
normally received.
48 See § 8.1(c).
49 United States v. Curran, 498 F.2d 30 (9th Cir.1974); People v. O’Hearn, 931 P.2d 1168 (Colo.1997).
So too, a police officer is not free to enter an open garage door. United States v. Oaxaca, 233 F.3d 1154 (9th Cir.2000).
49.1 Compare United States v. Walker, 474 F.3d 1249 (10th Cir.2007) (where officer knocked several times on the storm door but got
no response, and then opened the storm door and knocked on the inner wooden door, which was about ten inches ajar, that “not a
Fourth Amendment intrusion,” as “most visitors would have done the same”).
49.2 State v. Kochel, 744 N.W.2d 771 (N.D.2008) (“While an open door may ‘invite the gaze of curious passers-by and lessen the
reasonable anticipation of privacy in the home,’ it does not alone justify an officer’s entry”).
50 State v. Crider, 341 A.2d 1 (Me.1975).
51 Similarly, where a residence has a front door and a patio door and also a door leading through the garage to a kitchen door, an
officer wanting to serve civil process may not opt for walking through the garage, which “is an intimate part of a person’s
residence.” State v. Blumler, 458 N.W.2d 300 (N.D.1990).
Compare State v. Breuer, 577 N.W.2d 41 (Iowa 1998) (where house divided into 2 apartments had porch with 2 doors, and officer
desiring to question defendant rang his doorbell but received no response and then opened door and walked up stairs to second
floor apartment and knocked on door at top of stairs and, when defendant opened door, smelled burning marijuana, court holds
defendant had legitimate expectation of privacy as to the stairway and landing because it “was not an area used by other people,”
but that because police “may go onto a person’s private property, approach the residence, and knock on a door to speak with a
person regarding a police investigation,” climbing stairs was a legitimate “minimal intrusion” equivalent to trying a back door
when no response at front door); State v. Kitchen, 572 N.W.2d 106 (N.D.1997) (though area entered by police characterized as an
“enclosed entryway,” defendant’s reliance on Crider unavailing, as court concludes area is “a porch-type entrance,” as inner door
flush with original exterior wall of house and “vestibule-like addition” had an unlocked screen door, so space “was impliedly open
to at least some access by the public”).
See also State v. Kochel, 744 N.W.2d 771 (N.D.2008) (distinguishing Kitchen, infra, improper for police to enter addition to
mobile home, as “the structure is fully enclosed by wooden walls complete with a door and a window”).
52 Assuming circumstances in which this is so, it is another matter whether the officer, while there, may make use of that vantage
point to look into or listen at a particular residential unit. This matter is explored in the immediately following subsection.
As for what other investigative techniques are permissible, consider Harvin v. United States, 228 Ct.Cl. 605, 661 F.2d 885
(Ct.Cl.1981) (where investigator put match sticks between door and door jam of plaintiff’s motel room to keep track of his
comings and goings, this no search; “plaintiff had no reasonable expectation of privacy which was invaded when the match sticks
fell after someone opened the door”); Commonwealth v. Montanez, 410 Mass. 290, 571 N.E.2d 1372 (1991) (no search for officer
to move tile in dropped ceiling directly outside door to defendant’s apartment and thereby discover defendant’s narcotics stash).
53 United States v. Mendoza, 281 F.3d 712 (8th Cir.2002) (duplex, where outer door to vestibule not secured, there were two
mailboxes outside, and “there was no signal to the officers that knocking on the outer door would have been necessary”); United
States v. Cephas, 254 F.3d 488 (4th Cir.2001) (police officer’s movement from door of house containing apartments to door of
defendant’s apartment was with consent of another resident, but in any event was “through an area common to the several separate
apartments in the house, an area where any pollster or salesman could have presented himself”); United States v. Brown, 169 F.3d
89 (1st Cir.1999); United States v. Clark, 67 F.3d 1154 (5th Cir.1995) (apartment building upper level walkway “neither enclosed
nor locked”); United States v. Acosta, 965 F.2d 1248 (3d Cir.1992); United States v. Sewell, 942 F.2d 1209 (7th Cir.1991); United
States v. Penco, 612 F.2d 19 (2d Cir.1979); Brown v. United States, 627 A.2d 499 (D.C.App.1993); Cox v. State, 160 Ga.App.
199, 286 S.E.2d 482 (1981); People v. Smith, 152 Ill.2d 229, 178 Ill.Dec. 335, 604 N.E.2d 858 (1992) (unlocked “common area
shared by other tenants, the landlord, their social guests and other invitees”); Commonwealth v. Acosta, 416 Mass. 279, 627
N.E.2d 466 (1993); State v. Macke, 594 S.W.2d 300 (Mo.App.1980); Commonwealth v. Miley, 314 Pa.Super. 88, 460 A.2d 778
206