MN Court: No expectation of privacy in condo buildings

If a police officer enters your secured condominium building without a warrant and a drug-sniffing dog outside your door detects the presence of drugs, is it an illegal search?

No, a divided Minnesota Court of Appeals ruled Tuesday.

Stuart Luhm of Minnetonka had challenged his conviction on drug and weapons offenses because police did not have a warrant to enter his building in the August 2014 raid that was based on a tip from an informant.

The front door of the building is normally locked, but police used a key in a locked box to which police have access, and Brio the drug-sniffing dog confirmed that drugs were probably in the condo unit Luhm shared with a girlfriend.

That was the point when police got a search warrant and found large quantities of marijuana, 93 oxycodone tablets, 7 firearms, and two bullet-resistant vests.

Two members of the Court of Appeals ruled today that there is no expectation of privacy in the common areas of a condominium building. It also said the fact the building owners make access available to police negated the need for a warrant to enter the building.

“Neither the United States Supreme Court nor the Minnesota Supreme Court has considered whether a resident of a multi-unit building has a reasonable expectation of privacy in the common areas of the building so as to challenge an officer’s warrantless entry into the building,” Judge Mathew Johnson wrote <a href="http://www.mncourts.gov/mncourtsgov/media/Appellate/Court%20of%20Appeals/Holiday%20Opinions/OPa151356-053116.pdf” target=”_blank”>in his ruling today.

But the state Supreme Court ruled in 2012 that people in a condo building have a diminished expectation of privacy. That case involved a police officer who saw evidence in a murder investigation in plain view in a building’s common area.

Judge Johnson said that ruling supports prosecutors’ insistence that Luhm had no reasonable expectation of privacy.

Johnson also rejected Luhm’s claim that the building manager didn’t have authority to allow a warrantless entry.

Luhm also contends that the property-management company’s authority to consent to the officers’ warrantless entry is limited by the condominium building’s written rules and regulations.

Luhm points to a provision in that document stating that condominium residents have “exclusive use” of “limited common areas” of the building. But that portion of the rules and regulations does not refer to the entryways or hallways of the building.

Rather, that provision refers to certain other areas, such as the parking garage, balconies, and storage lockers.

As for the dog’s sniff, the judge rejected that argument, too:

We stated above that Luhm did not have exclusive use of the hallway outside the door of his condominium unit.

In fact, the written rules and regulations of the building forbade him from placing private property in that area. In analyzing whether that area is within the curtilage of his home for purposes of the Fourth Amendment, we noted that the area outside the door of his condominium unit was accessible to other residents of the multi-unit building.

Those reasons also indicate that, for purposes of the state constitution, Luhm does not have a strong privacy interest in the common hallway outside the door of his condominium unit.

“A trained drug-detection dog permits officers to obtain information about the inside of a home. A dog sniff of the door seam was a search under the Fourth Amendment, regardless of whether it occurred in the common hallway of the condominium building,” Judge John Smith countered in his dissent. “I would reverse because the officers needed probable cause to conduct the dog sniff, and the dog sniff was essential to probable cause to issue the search warrant.”

Smith suggested the case is similar to one in California in which a man was arrested when police used a thermal imaging system from the street to scan his home for signs that he was growing marijuana.

“… the Supreme Court made no distinction between heat radiating off the home and surveillance inside the walls of the home,” Smith wrote. “Because a trained drug-detection dog is not in general public use and was used by the police to ‘explore details of the home that would previously have been unknowable without physical intrusion,’ I would conclude that the dog sniff in this case was a search requiring a warrant under the Fourth Amendment, even when conducted from the common hallway of appellant’s condominium.”

  • Thomas Mercier

    If the human nose could pick up the scent in the hallway I’d be fine with the general finding, the use of a specific detection ‘tool’ seems more invasive than I think is appropriate.

    • Ryan Johnson

      Pretty much how I feel. That said, if someone had complained about the smell coming from that door, or even pervading the hallway in general, it should have been easy enough to get the warrant for that initial search.

  • PaulJ

    It shouldn’t become common to sniff your door, listen at your keyhole, or peep your window. But saying the garage isn’t a common area but the hallways are seems a little thin.

    • I find citing a SupCt decision that said you have “diminished” privacy expectations supporting an assertion you have none to be rather interesting.

  • Jim in RF

    Total thread highjacking here, but the internets tell me that today is the blogger’s birthday. If we can believe them, Happy Birthday, Bob.

  • Neil

    I have serious qualms about this case, not the least of which being the presumption that a key for the police is per se consent for them to enter the building. It seems implicit that use would be limited to emergencies.

    I wonder if they tried to get a warrant based on the tip and failed or if they didn’t try at all.

    • DavidG

      Tell me about it. I’m deaf, and concerned that if there were an emergency evacuation situation (like a derailment on the nearby tracks) at night while I’m sleeping and not wearing my CIs) that I would miss a knock on my door.

      I don’t know my neighbors well enough to feel comfortable entrusting them with an emergency key, so 911 has the location of the emergency key locker and its combo… Does that mean I’ve given them carte blanche for any warrantless search?

  • John O.

    I would have welcomed Ron Rosenbaum’s take on this.

    • I was thinking the same thing this morning. Usually, when I read the Monday and Wednesday cases from the appellate courts, I find myself wondering what Ron would think. So today was no exception.

  • Mike Worcester

    Having been both a renter and home owner, I can tell you I always was made to feel that being a renter gave you much less expectation of privacy than ownership. Your space really is not yours.

    Also, and maybe I missed this — was the defendant under surveillance already? What was the probable cause to bring in the drug dog (which have been proven to be far from infallible) and take a sniff outside the door?

    • The tip from an informant.

      • Mike Worcester

        Ty.

  • lindblomeagles

    Although it has been years since I rented a place to live and am unqualified to give a legal answer here, I seem to remember my landlords HAD the right to enter my apartment for reasonable cause. Yes, the law and most landlords try to give tenants some reasonable measure of privacy, but as the Supreme Court noted a few years ago, that privacy, in my experience, tends to diminish below the greater will of the landlord. Moreover, because tenants are renting from somebody else, they shouldn’t expect the full protection of the law when it comes to their living space UNLESS such provisions are entered into a legally binding and enforceable contract (lease/rent agreement). The way I read this case, somebody from the apartment tipped the police drugs were being used and sold, presumably from Lumh. At that moment, Lumh is expected of putting his neighbors and the land company in jeopardy. The landlord gave permission to the police to search the place, which they did, and found strong evidence that Lumh in fact WAS doing exactly what the tip said he was doing. The police MADE SURE to get a warrant because they knew Lumh would pull the “Illegal Search” defense, even though all they probably needed to do was contact the land holding company. I don’t feel sorry for Lumh at all. BUY YOUR OWN HOUSE so that then you can toke up as often as you like AND hold police to a higher standard of entry.

    • KTFoley

      Luhm is renting a condo from his mother. She is the landlord, not the property management company. Those two parties do not have the same rights with regard to tenants.

      • The court found that to be irrelevant:

        ————————

        First, Luhm cites no caselaw suggesting that the
        law of curtilage depends on whether a resident of a home owns the home or rents it from
        another person. The four factors identified by the Supreme Court give no regard to whether
        the resident of a home is an owner or a renter. See Dunn, 480 U.S. 301, 107 S. Ct. at 1139.
        Second, even if ownership were relevant, Luhm was not the owner of the condominium
        unit in which he lived. Third, even if ownership were relevant, and even if Luhm were
        permitted to assert his mother’s ownership interest, the written rules and regulations of the
        condominium building indicate that each owner of a condominium unit has only a limited
        right to control the area immediately outside his or her condominium unit.

        • KTFoley

          That part of the finding still seems to be talking about the common areas. I should clarify that I’m just responding to comments about how leases allow the landlord to enter the condo/apartment itself.

          The property management company for a condo is not a landlord or even a building super. Its responsibilities generally include the building & common areas that are managed by the homeowner association, but exclude interior living spaces that are the property of the condo owner. We should not assume that it has the same rights as the landlord to enter the condo/apartment itself.

          • lindblomeagles

            Look, again, Luhm doesn’t really have any standing here. As the court said, his privacy diminishes, and for two good reasons, because he owns only his personal property. The ACTUAL, PHYSICAL OWNER of the condo, or apartments, IS A BUSINESS OWNER, who a) is responsible for the safety of the people in the building; and b) needs some protection from the law so that he can make money off the business. Everybody seems to think a condo or an apartment or a townhome is the same as owning an actual home. It is a business arrangement. If in the commission of a drug deal gone Luhm kills or wounds innocent tenants, AND Luhm’s mom or whomever responsible for the building had reasonable knowledge of Luhm’s dealings and did nothing about it, the condo owners could be found liable for the wrongful death or injury to other tenants and forced to pay civilian damages. The reverse scenario is just as bad. If the condo owners knew nothing about Luhm’s dealings, but Luhm still killed somebody while selling drugs, the press could wind of it, thereby crippling the condo’s reputation, and therefore, hurting the condo’s efforts in selling more condos. The business owner needs some protection from tenants and visitors like Luhm and his associates — people who hide behind loopholes while using other people’s property to commit crimes. If the law gives LUHM all this protection you seek, and does nothing for the business owner, a business owner could find himself out of business very quickly. Renting just is not the same as owning, and that, I believe, is why the court ruled the way they did.

          • KTFoley

            Again, conflating the owner of an individual condominium with a homeowner’s association of a condominium building.

        • KTFoley

          You probably know and the tech team is probably on it already, but: the counter for comments at the top of the article is not updating even though the counter for comments at the top of the comment thread is still working.

          • I’m aware. Posted a note about it on Twitter. I’m not entirely optimistic the function can be restored. I’m told the WordPress experts recently left the company.

  • dukepowell

    What does the lease say about situations like this?

  • Rob

    maybe the tip came from someone who was crabby that Lumh wouldn’t share…

  • KTFoley

    As a condo owner who is guilty of leaving her shoes in the hallway, thank you for this.

    In Saint Paul, the Department of Safety and Inspections requires a keybox for multi-family dwellings. I don’t get the sense that they have previously thought of this as permission to enter in the case of non-emergencies:

    https://www.stpaul.gov/DocumentCenter/Government/Safety%20&%20Inspections/Fire%20Prevention%20Pre-Inspection%20Handouts/3464_201505111155582890.pdf