United States v. Lewis, 2023 WL 2577208 (2nd Cir. 2023)
Police were investigating Vashun Lewis for illegal cigarette trafficking. An officer obtained a search warrant based on a statement from a confidential informant (CI) that the CI had recently seen large quantities of cigarettes, heroin and marijuana in Lewis’s apartment bedroom. Lewis lived in the second-floor apartment of a three-story, three-family building. The CI also said he saw Lewis in possession of a .40 caliber handgun while in the apartment and in the basement of the apartment building.
The warrant authorized a search of the “three-family house” in which “the front entrance doors lead to a common entrance with two interior apartment doors. Inside the left door there is a staircase that leads into the 2nd floor apartment and the 3rd floor which are separate.” The warrant identified “the 2nd floor apartment, as well as the basement” as the target location. When officers executed the search warrant, they found several cartons of cigarettes, marijuana, drug paraphernalia and a 9mm handgun. The handgun, along with some marijuana, was found inside a sock in a laundry basket located on the back porch off the ground-floor rear door. The rear door of the building opened into a common stairwell that led to the upper floors.
Lewis was convicted on state drug distribution charges. He was then charged and convicted of federal crimes for gun possession in furtherance of drug trafficking and being a felon in possession of a firearm. In his appeal, Lewis claimed the 9mm gun and marijuana in the sock should have been suppressed because the warrant did not specifically authorize a search of the shared back porch. The appellate court rejected his claim and upheld his conviction.
In many previous issues of Xiphos, we’ve discussed the concept of curtilage. The curtilage is “the area into which extends the intimate activity associated with the sanctity of a man’s home and the privacies of life” (Oliver v. United States, 466 U.S. 170 (1984)). In his appeal, Lewis did not claim the common porch area was within the curtilage of his apartment. He simply argued the warrant did not specifically include the porch in the description of the location to be searched.
The court held that Lewis failed to meet his burden to show his Fourth Amendment rights extended to the shared back porch of the triplex.
The court analyzed Lewis’s claim under the doctrine of “standing.” A person cannot challenge the legality of a search unless the person has a legitimate expectation of privacy in the area that is searched (Minnesota v. Carter, 525 U.S. 83 (1998)). Because the “rights assured by the Fourth Amendment are personal,” courts suppress evidence only “at the instance of one whose own protection was infringed by the search and seizure” (Rakas v. Illinois, 439 U.S. 128 (1978)). Having a legitimate expectation of privacy is often referred to as having “standing” to contest the search.
Lewis acknowledged the porch was a shared area of the triplex with a door that entered into a non-apartment portion of the house. The trial court found the porch was not “locked or closed off” and could “be easily used” by visitors to the building. The appellate court observed that Lewis offered no evidence to the trial court of the particular uses he made of the porch, nor did he identify its proximity to his living area or argue it was inaccessible to visitors. Additionally, Lewis did not testify regarding any steps he took to maintain his privacy while using the common porch.
In affirming Lewis’s convictions, the appellate court was careful to note it was not making a categorical rule that the Fourth Amendment always allows warrantless searches of all shared areas in multi-unit buildings. In many cases, shared spaces of multi-tenant properties may be subject to Fourth Amendment protections. Rather, the court held that Lewis failed to meet his burden to show his Fourth Amendment rights extended to the shared back porch of the triplex.
Although the evidence in this case withstood legal challenge, the takeaway is clear: Officers drafting affidavits for search warrants should endeavor to specify all areas to be searched. Where facts show probable cause that evidence may be found in a shared space or within the curtilage, the best practice is to include that area in the description of the place to be searched.