UNIVERSITY OF THE DISTRICT OF - UDC Law Review

“Second, the agents had a legal right to be in the adjoining room. We decline to restrict their movements in their own room in order
to prevent the overhearing of conversations in an adjoining room. It strikes us as impractical to permit an agent in an adjoining
room to listen while standing immediately next to a wall or connecting door without touching it but to prohibit him from listening
by moving his ear several inches and pressing it against the wall or connecting door. …
“Third, appellants were in a hotel room. True, the occupants of a hotel room are entitled to the protection of the Fourth
Amendment. … But the reasonable privacy expectations in a hotel room differ from those in a residence. …
“In view of the transient nature of hotel guests, moreover, one cannot be sure who his neighbors are in a hotel room. A person in a
residence generally knows who his neighbors are. A person in a hotel room therefore takes a greater risk than one in a residence
that, instead of neighbors, an adjoining room may contain strangers or, as in this case, even persons with interests adverse to his
own.”
Fisch involved the added fact that the agents, with the aid of the motel operator, had the suspects moved to a different room so that
a vacant adjoining room could be made available to the agents, but the court concluded that the “accomplishment of the move of
the defendants’ room to one more accessible for surveillance violated no constitutional right of the appellants. They could, had
they wished, refused the transfer. The officers were in a room open to anyone who might care to rent.”
United States v. Hearn, 563 F.3d 95 (5th Cir.2009).
110 United States v. Leung, 929 F.2d 1204 (7th Cir.1991) (no search where officer looked through motel room door when occupant
opened it, and this so even though police resorted to ruse by having housekeeper knock and ask to clean the room); Borum v.
United States, 318 A.2d 590 (D.C.App.1974) (officer in hallway looked through crack in door and saw use of drugs; no search, as
the hallway “is open to the general public” and the “crack was readily apparent and accessible to anyone walking along that hall”);
Hatcher v. State, 141 Ga.App. 756, 234 S.E.2d 388 (1977) (no search where officers in hallway knocked on door and saw stolen
goods in room when defendant opened door); People v. Miller, 30 Ill.App.3d 643, 332 N.E.2d 440 (1975) (observation from
hallway through open door no search, as “this area was open to the public”).
111 Ray v. United States, 288 A.2d 239 (D.C.App.1972) (listening from adjoining room).
112 United States v. Acevedo, 627 F.2d 68 (7th Cir.1980) (no search to look into apartment window from gangway used by general
public to reach adjoining tavern); Gross v. State, 8 Ark.App. 241, 650 S.W.2d 603 (1983) (conversation overheard from
“residential walkway” of apartment house); People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721 (1969) (observation
from common passageway bordering defendant’s apartment); State v. Macke, 594 S.W.2d 300 (Mo.App.1980) (observation
through open door from common area); Commonwealth v. Johnson, 247 Pa.Super. 208, 372 A.2d 11 (1977) (observation from
patio steps used by anyone entering apartment building from the rear).
113 United States v. Fields, 113 F.3d 313 (2d Cir.1997) (no search where police entered fenced side-yard of apartment house and
looked through 6-inch opening into defendant’s illuminated bedroom, as defendants’ activity was in plain view of “a common area
accessible to the other tenants in the multi-family apartment building-in which they had no legitimate expectation of privacy”);
United States v. Lloyd, 36 F.3d 761 (8th Cir.1994) (no search to look through open door of apartment from unlocked hallway);
People v. Becker, 188 Colo. 160, 533 P.2d 494 (1975) (observation was “from a common area in front of the apartment … through
the uncurtained part of a large picture window adjacent to the front door”); Latham v. Sullivan, 295 N.W.2d 472 (Iowa App.1980)
(no search to look in apartment window from ordinary outside route used to reach apartment door); People v. Funches, 89 N.Y.2d
1005, 657 N.Y.S.2d 396, 679 N.E.2d 635 (1997) (no search when officer came down fire escape to landing outside defendant’s
second-story apartment and looked in, given “defendant’s lack of exclusive control over the use of the fire escape”); State v.
Taylor, 61 Ohio App.2d 209, 401 N.E.2d 459, 15 O.O.3d 323 (1978) (no search to look into apartment from “the semi-public
walkway” leading to building); Rodriguez v. State, 653 S.W.2d 305 (Tex.Crim.App.1983) (no search where police in hallway
looked through open door).
114 State v. Benton, 206 Conn. 90, 536 A.2d 572 (1988) (listening with naked ear while “not closer than twelve to eighteen inches to
the common wall” of the duplex).
115 In Commonwealth v. Hall, 366 Mass. 790, 323 N.E.2d 319 (1975), the apartment building in question had double doors; after
passing through the first one into the vestibule, a visitor confronted another door and three doorbells, one for each apartment. This
door could be opened by key or by a buzzer mechanism activated from one of the apartments. The police gained entry twice-once
when the door happened to be unlocked, once by immediately following a person who had rung a doorbell and had been admitted
by buzzer. The court held the hallway was not a public area because “the arrangement made-the lock on the downstairs door and
the buzzer system—was designed to exclude members of the public and to admit none but the defendant’s own guests and invitees.
… A justified expectation of privacy therefore arose. That the lock on the vestibule door could be and was bypassed on the two
occasions when the eavesdropping took place cannot alter the picture, for police do not have carte blanche to pass through doors
that are unlocked or even ajar if the area beyond has a private character.”
See also People v. Killebrew, 76 Mich.App. 215, 256 N.W.2d 581 (1977); State v. Ortiz, 257 Neb. 784, 600 N.W.2d 805 (1999)
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