NOTE: A landlord cannot give you permission to search his tenant’s home for illegal stuff. Write that on the chalkboard, and repeat 100 times . . . .
In the 1961 U.S. Supreme Court case of Chapman v. United States, the Court was presented with the following scenario:
In 1958, acting without a search warrant, but with the consent of the suspect’s landlord, police officers entered the suspect’s home through an unlocked window, and searched the rental house. There they found an “unregistered distillery” and 1,300 gallons of “mash.” Shortly afterwards, the suspect was indicted for violation of federal liquor laws.
A guy named Bridgaman owned a rental house in a wooded area, near Macon, Georgia. Since the house had been rented to a new tenant, on Sunday, February 16, 1958, Mr. Bridgaman went to the rental house, for the purpose of inviting his new tenants to attend church with him. Upon arrival, he noted a strong “odor of mash” around the house. There was no response to his knock. He tried to look in the windows, but couldn’t see anything.
Being a good Christian, Mr. Bridgaman contacted two local police officers, who dutifully reported to his home. Together, the three went to Mr. Bridgaman’s rental house, where all three of them agreed that there was a strong “odor of mash.” They knocked on the door; but no response. They tried to look into the windows; but they couldn’t see anything. They checked to see if the windows were locked. They were all locked, except for one – the bathroom window.
According to the officers’ sworn testimony, the landlord, Mr. Bridgaman, gave them permission to climb in the window and see if the tenants were doing what he suspected they were doing, given the strong smell of moonshine in the making. So the officers climbed in the bathroom window.
After entering the home, one of the officers found 1,300 gallons of mash in the living room, and other than the mash, the rest of the house was empty – aside from the distillery and distilling accessories.
The officer who found the moonshine operation, yelled out to the other about what he had found, and told him “to go get some help.” The other officer then left, taking the landlord home, and called the federal police to come to the scene.
However, before the feds could get there, the tenant arrived home. He unlocked the door, walked inside, and was suddenly confronted by the police officer, still inside the house, who handcuffed him and arrested him.
When the other officers arrived at the scene, they saved samples of the mash, took pictures of the crime scene, inside the house, and then destroyed the moonshine still and destroyed the shine. There had never been a search warrant of any kind. The case went all the way to the U.S. Supreme Court.
Surprisingly, despite not having a search warrant, the government’s argument justifying their warrantless search, was that it was a rental property, and that the landlord, on a social call, noticed that the premises was being used for criminal purposes, and since he had the legal right to enter the premises as the landlord, “he should be able to exercise that right through law enforcement officers to whom he has delegated his authority.”
The SCOTUS immediately pointed out three problems with that argument: 1) the officer forced open a window to gain entry to the premises; 2) their purpose in entering was to search for distilling equipment, not to evaluate the status of the landlord’s property; and 3) if the SCOTUS were to allow such an intrusion, without a warrant, “would reduce the Fourth Amendment to a nullity and leave tenants’ homes secure only in the discretion of landlords.”
Gee . . . . Sounds familiar.
Therefore, the Supreme Court of the United States found that the search was illegal, and thus began an extended progeny of federal cases, all based on the 1961 U.S. Supreme Court decision in Chapman v. U.S., written by Justice Charles E.Whittaker, who was appointed by President Eisenhower in 1957.
Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961).
And here we are, in 2019-2020, and there are still LEOs in West Virginia, who apparently believed they were entitled to entitled to go search a house for drugs, just by virtue of supposedly asking a landlord if they can enter? Yes, 1961 was a long time ago, but the case has been cited in caselaw 670 times, by my count, since then, including as recently as 2015, here in the Fourth Circuit.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. The Supreme Court has held that, with few exceptions, warrantless searches are “per se unreasonable” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
“At the very core of the Fourth Amendment stands the right of a man to retreat into his home and there be free from unreasonable governmental intrusion. With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) (internal quotation marks and citations omitted).
And the protection of a house extends to apartments, rented rooms within a house, and hotel rooms so that a landlord may not give the police consent to a warrantless search of a rented apartment or room. See Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel room); Chapman v. United States, 365 U.S. 610, 616-17, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961) (rented house). U.S. v. Stevenson, 396 F.3d 538 (4th Cir. 2005).