Courts have long differentiated apartment living from single-family-home living. While those who live in single-family homes enjoy expansive Fourth Amendment protections against unreasonable searches and seizures, those who live in apartments do not.1 In Florida v. Jardines,2 the Supreme Court held that a front porch was part of a single-family home’s “curtilage”3 and thus enjoys similar Fourth Amendment protections as the home itself.4 But, like many other Supreme Court Fourth Amendment decisions, Jardines concerned only a single-family home.5 Recently, in United States v. Trice,6 the Sixth Circuit held that a hallway wall opposite a tenant’s apartment was not curtilage and thus was not a constitutionally protected area.7 By failing to extend the Jardines curtilage analysis to the apartment context, the Sixth Circuit missed an opportunity to expand Fourth Amendment protections under the curtilage doctrine and thereby contributed to the racial, ethnic, and class inequalities that result under current Fourth Amendment jurisprudence.
As part of the drug investigation of Raheim Abdullah Trice, the Kalamazoo Valley Enforcement Team (KVET) executed several controlled buys with Trice to gather evidence on his alleged drug activity and determine where he resided.8 During one of the buys, officers observed him exiting from and returning to an apartment building at 114 Espanola Avenue in Parchment, Michigan.9 Using evidence gathered from a car registration and police records, investigator Marcel Behnen connected Trice to Apartment B5.10 Prior to conducting a third and final controlled buy, Behnen visited the building to confirm that Trice did in fact live there.11 He entered the building through the front door, which he later testified “was ajar and had no lock, intercom, or doorbell.”12 After finding what he inferred to be Apartment B5 in the building’s basement level, Behnen installed a motion-sensor camera on the hallway wall opposite the unit, set to record whenever anyone entered or exited.13 KVET then conducted a final controlled buy, after which Behnen retrieved the camera — which had been in place for about four to six hours and had captured Trice entering and exiting Apartment B5 — and used its footage to successfully obtain a search warrant for the apartment.14 Subsequently, officers searched the apartment and seized methamphetamine, crack cocaine, powder cocaine, heroin, and other drug paraphernalia.15 Trice was charged with several counts of possession and distribution of controlled substances.16
Trice moved to suppress the evidence seized from his apartment, arguing that the use of the camera was unconstitutional, and absent the video footage, the affidavit failed to establish a nexus between his alleged crime and Apartment B5.17 The district court denied the motion.18 Relying on Sixth Circuit precedent in United States v. Dillard,19 the court reasoned that tenants do not have an objectively reasonable expectation of privacy in the common hallways of unlocked buildings.20 Finding the facts similar to those in Dillard, the court concluded that Behnen could permissibly enter the apartment building because it was “unlocked [and] publicly accessible,” and once inside, it was permissible for him to access the building’s hallways.21 And because he could have stood in the hallway all day to observe Trice himself, his “more practical” decision to use a camera was permissible.22 Finally, the district court held that the hallway area in front of Trice’s apartment is not akin to curtilage, noting that “the common, unlocked hallway in the low-rent apartment building does not carry the same level of protection as the doorstep in suburbia.”23 After the denial of Trice’s motion, Trice agreed to a plea, conditional on appealing the ruling on the motion to suppress.24
The Sixth Circuit affirmed. Writing for the panel, Judge Bush25 first held that under the Katz v. United States26 framework, Trice did not have an objectively reasonable expectation of privacy in his apartment hallway.27 Under Katz, there are two requirements for an intrusion to constitute a Fourth Amendment search: (1) a person must exhibit “an actual (subjective) expectation of privacy” in the place, and (2) the expectation must be one “that society is prepared to recognize as ‘reasonable.’”28 Despite finding that Trice probably had a subjective expectation of privacy in the basement area and the hallways outside his apartment, the court held that the expectation was not objectively reasonable.29 The court agreed with the district court that Dillard controlled this case. In Dillard, the court held that the defendant “did not have a reasonable expectation of privacy in the common hallway and stairway of his duplex that were unlocked and open to the public.”30 Finding that the hallway in Dillard was indistinguishable from the hallway at issue here — the building doors were unlocked and ajar, and there was no intercom or doorbell — the court held that Trice did not have a reasonable expectation of privacy in the hallway.31
Next, Judge Bush considered whether the camera was placed in the apartment’s curtilage.32 Citing to Jardines, Judge Bush explained that “the area ‘immediately surrounding and associated with the home’ — what [the Supreme Court] call[s] the curtilage — [is regarded] as ‘part of the home itself’” for Fourth Amendment purposes.33 Conducting a warrantless investigation by placing a camera in the curtilage would thus be a Fourth Amendment intrusion into a constitutionally protected area, because it would be either a “physical intrusion into the curtilage” or a violation of “the owner’s reasonable expectation of privacy.”34 To determine whether the area was part of the home’s curtilage, the court considered the four factors outlined in United States v. Dunn35: “(1) the proximity of the area to the home, (2) whether the area is within an enclosure around the home, (3) how that area is used, and (4) what the owner has done to protect the area from observation from passersby.”36 Beginning with the first factor, the court found that the hallway wall on which the camera was placed was indeed in close proximity to Trice’s home.37 However, the court found that the other three factors weighed against him: the area was not an enclosure around the home; Trice made no effort to shield the area from observation; and the area was a common hallway that was used by the public, other tenants, and their guests.38 Additionally, the fact that the camera was placed on the wall opposite his door, and thus was closer to his neighbor’s door, weighed against Trice.39 Given the balance of these factors, the court held that the camera was not placed in a constitutionally protected area.40
Having established that Trice had no reasonable expectation of privacy in the hallway, the court upheld the use of the camera. Likening the camera to one placed on a utility pole by police to surveil the surrounding area, Judge Bush recognized that the Fourth Amendment does not stop an officer from making “observations from a public vantage where he has the right to be.”41 Thus, since Trice’s apartment door was readily visible from the unlocked hallway — a place in which Trice had no reasonable expectation of privacy — law enforcement could have observed for themselves what the camera captured.42 Finally, while recognizing that collecting “detailed records” with a “retrospective quality” would be unconstitutional, the court explained that this camera was used for the “singular and narrow purpose” of identifying Trice’s apartment unit and thus did not implicate a constitutional issue.43
Trice failed to extend the Fourth Amendment’s reverence for the home to the apartment context, exacerbating unequal Fourth Amendment protections. By taking an expansive view of curtilage, the Supreme Court’s holdings in Jardines and Collins v. Virginia44 provided the doctrinal backing for lower courts to extend more robust Fourth Amendment protections to apartments. The application of a curtilage analysis in the apartment context is unsettled,45 and the Trice court had an opportunity to expand it. By conducting a rigid curtilage analysis, the Trice court held apartment hallways to untenable standards and exacerbated racial, ethnic, and class disparities in Fourth Amendment jurisprudence.
In Florida v. Jardines, the Supreme Court reinvigorated the curtilage doctrine.46 Before Jardines, courts mostly applied the Katz reasonable expectation of privacy test to determine whether a search violated the Fourth Amendment.47 Jardines, on the other hand, endorsed a property-based doctrine through a curtilage analysis, recognizing that certain areas surrounding the home are equivalent to the home itself for Fourth Amendment purposes.48 Under Jardines, “[c]onducting a warrantless investigation . . . in [a] constitutionally protected area would . . . be unlawful, either because it [would] work a physical intrusion into the curtilage or because it would violate the owner’s reasonable expectation of privacy.”49 In Jardines, the Court held that police officers violated the homeowner’s Fourth Amendment rights when they brought a drug-sniffing dog onto the porch of the home.50 Since the porch was the “classic exemplar” of where “the activity of home life extend[ed],” the Court found the case to be an easy one.51 The police officers intruded on the curtilage of the defendant’s home.52 The Court has continued to find curtilage in “easy case[s],”53 most recently in Collins, where it held that a partially enclosed driveway next to a single-family home was considered curtilage.54
Jardines generated scholarly enthusiasm for applying the property-based curtilage doctrine to the apartment context.55 Though most courts have held that, under Katz, apartment dwellers do not have a reasonable expectation of privacy in common spaces of apartments,56 those same spaces — immediately surrounding one’s apartment unit — could be construed as curtilage under a Jardines-like analysis and thus subject to heightened constitutional protections. Like the porch in Jardines, an apartment hallway is the area “immediately surrounding and associated with” the tenant’s home and is thus also an extension of the home.57 Further, just because a tenant does not have an absolute expectation of privacy in common areas of apartment buildings does not mean that the tenant should not have a constitutionally recognized level of privacy in such areas.58 After all, although the apartment building was unlocked, Trice’s property manager testified that the residents expect that only tenants and their invited guests are allowed on the property and would call the police if someone was loitering in the building.59 Therefore, apartment dwellers still associate these common areas with their homes.
Despite this favorable doctrinal backdrop provided by Jardines and Collins, the Trice court declined to hold that Trice’s apartment hallway area constituted curtilage. While the court cited to both Jardines and Collins, it relied most heavily on a four-factor test from Dunn.60 The court found that certain attributes of Trice’s apartment building and hallway area — including that the building was unlocked, that the hallway was not an enclosure, that it was open to observation, and that it was “used by other apartment tenants to reach their respective units” — weighed against finding the hallway wall was curtilage.61 However, similar features were not considered to be dispositive in Jardines and Collins. In both cases, the Court found that spaces similarly observable, accessible, and only partially enclosed amounted to curtilage.62 These attributes amounted to “easy cases” in the context of single-family homes.63
The Sixth Circuit should have seized the Supreme Court’s expansive language and reasoned that the apartment hallway area was curtilage. By instead transposing the Dunn test into the apartment context, the Trice court turned a blind eye to the unique nature of apartments. The Dunn factors the Sixth Circuit applied — developed in the context of single-family homes — are not mandatory, and neither Jardines nor Collins relied on them.64 Instead of rigidly applying this framework, the Sixth Circuit should have accommodated the attributes of apartment living rather than dismissing them. Indeed, apartment buildings are distinct from single-family homes because they are shared spaces and thus accessible by other tenants and their guests. Nevertheless, apartment hallway areas are in close proximity to tenants’ units and often serve as the sole passageway to the home. Hallway areas may not be the “classic exemplar”65 of curtilage like the idyllic porches of suburbia, but they are no less worthy of heightened constitutional protection; failing to recognize this holds apartments to an untenable standard relative to single-family homes. Trice did not conduct a full property-based test, but its conclusion that an apartment hallway area is not curtilage has implications for a property-based analysis: it cuts off a potential avenue for extending Fourth Amendment protections in the apartment context.
By exacerbating the distinctions between the Fourth Amendment protections afforded to residents of single-family homes and apartments, Trice creates serious policy implications. In United States v. Whitaker,66 the Seventh Circuit acknowledged the inequity that results in strictly distinguishing between apartments and single-family homes: making such a distinction “would apportion Fourth Amendment protections on grounds that correlate with income, race, and ethnicity.”67 Even the Supreme Court has noted the inequity that could result from unequal Fourth Amendment protections, noting in Collins that differentiating between a garage and partially enclosed driveway would “grant constitutional rights to those persons with the financial means to afford” the former.68 The unequal application of Fourth Amendment law in the apartment context is especially significant given the number of people who live in apartments. As of 2019, about one in four New Yorkers and about one in six Californians live in apartments.69 There are also considerable racial, ethnic, and class differences between apartment dwellers and those who live in single-family homes. As of 2017, the median household income for apartment tenants was about $39,000, compared to about $78,000 for homeowners.70 As of 2019, about 72% of white households occupied a single-unit dwelling, compared to about 55% of Black households and about 59% of Hispanic households.71 Hispanic households are also more likely to occupy multiunit households compared to their non-Hispanic counterparts.72 The racial, class, and ethnic disparities between those who live in the typical American home — single-family homes — and those who live in multiunit dwellings further highlight how dangerous this growing distinction between single-family homes and apartments is.73
While the Sixth Circuit had an opportunity to expand Fourth Amendment protections in the apartment context, its rigid curtilage analysis all but foreclosed the possibility. Trice perpetuated distinctions that allocate Fourth Amendment protections on the basis of class, race, and ethnicity. As some have noted, the Framers certainly could not have foreseen that Fourth Amendment rights would be distributed in this manner.74 The Sixth Circuit had the policy and doctrinal backing to begin to remedy this inequity, yet it failed to do so.