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U.S. v. Concepcion

United States Court of Appeals, Seventh Circuit
Sep 9, 1991
942 F.2d 1170 (7th Cir. 1991)

Summary

holding “tenant has no reasonable expectation of privacy in the common areas of an apartment building”

Summary of this case from United States v. Whitaker

Opinion

No. 90-3521.

Argued August 7, 1991.

Decided September 9, 1991. Rehearing and Rehearing En Banc Denied November 8, 1991.

Jacqueline Oreglia (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Patrick A. Tuite, Brent D. Stratton (argued), Chicago, Ill., for defendant-appellant.

Appeal from the United States District Court, Northern District of Illinois.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and ESCHBACH, Senior Circuit Judge.


Gamalier Concepcion consented to the search of his apartment, where agents of the Drug Enforcement Administration found cocaine. He pleaded guilty to possession of that drug with intent to distribute it, 21 U.S.C. § 841, and received 41 months' imprisonment, reserving for appeal his objection to the validity of his consent. Fed.R.Crim.P. 11(a)(2). Concepcion does not deny giving consent (he signed a form), and does not renew on appeal the argument, which did not persuade the district judge, that the consent was involuntary.

Concepcion contends that his consent is the fruit of two unlawful searches. After arresting him, the agents seized his possession, including his keys. They found the nameplate "Concepcion" on the mailbox of a nearby apartment building. One of Concepcion's keys opened the outer door. Inside the common area, the agents used the key to unlock apartment 1C. They opened the door an inch but immediately closed and locked it without looking inside. Next they asked Concepcion to consent to the search of apartment 1C. Conception denied knowing anything about the apartment; after the agents told him that his key opened the lock, that his name was on the mailbox, and that they had watched him most of the day and seen him use the apartment building, Concepcion relented and signed the consent form. The district court concluded that neither the entry into the common area nor the insertion of the key into the lock was an unreasonable search. 742 F. Supp. 503 (N.D.Ill. 1990).

The district court believed that neither step was an unreasonable search because neither was a search at all. As the court observed, a "search" is the invasion of a sphere in which society recognizes reasonable expectations of privacy. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). Concepcion could not assert an expectation of "privacy" in the common area, the court concluded, because the other five tenants sharing the same entrance used the space and could admit as many guests as they pleased; Concepcion had no expectation that goings-on in the common areas would remain his secret. Indeed, it is odd to think of an expectation of "privacy" in the entrances to a building. The vestibule and other common areas are used by postal carriers, custodians, and peddlers. The area outside one's door lacks anything like the privacy of the area inside. We think the district court on solid ground in holding that a tenant has no reasonable expectation of privacy in the common areas of an apartment building. See United States v. Acevedo, 627 F.2d 68, 69 n. 1 (7th Cir. 1980); United States v. Boden, 854 F.2d 983 (7th Cir. 1988). See also, e.g., United States v. Holland, 755 F.2d 253 (2d Cir. 1985); United States v. Penco, 612 F.2d 19 (2d Cir. 1979); United States v. Eisler, 567 F.2d 814 (8th Cir. 1977); United States v. Shima, 560 F.2d 1287 (5th Cir. 1977) (in banc). To the extent United States v. Rosenberg, 416 F.2d 680 (7th Cir. 1969), and United States v. Case, 435 F.2d 766 (7th Cir. 1970), imply otherwise, they have not survived changes in the Supreme Court's definition of protected privacy interests.

Strange as it may seem, the entry of the key into the lock presents a harder question than the entry of the agents into the hallway. A keyhole contains information — information about who has access to the space beyond. As the fourth amendment protects private information rather than formal definitions of property, see Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the lock is a potentially protected zone. And as the tumbler of a lock is not accessible to strangers, unlike the information about telephone numbers in the pen register case, Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the use of an instrument to examine its workings (that is, a key) looks a lot like a search. So the ninth circuit held in United States v. Portillo-Reyes, 529 F.2d 844 (9th Cir. 1975), and although it has had second thoughts, see United States v. Grandstaff, 813 F.2d 1353, 1358 n. 5 (9th Cir. 1987), it has not overruled Portillo-Reyes. The first and sixth circuits, however, have held the opposite, United States v. Lyons, 898 F.2d 210, 212-13 (1st Cir. 1990); United States v. DeBardeleben, 740 F.2d 440, 443-45 (6th Cir. 1984), and the district court followed these opinions.

Because the agents obtain information from the inside of the lock, which is both used frequently by the owner and not open to public view, it seems irresistible that inserting and turning the key is a "search". Hicks provides a close parallel, holding that turning over a phonograph to read its serial number is a search. The bottom of a turntable is no more a storehouse for personal secrets than are the innards of a lock, yet the Court held the fourth amendment applicable. It does not follow, however, that the agents need a warrant or even probable cause to put a key into a lock. Hicks said that a warrant was unnecessary. The fourth amendment requires that searches be reasonable, and although a warrant may be an essential ingredient of reasonableness much of the time, for less intrusive searches it is not. E.g., California v. Acevedo, ___ U.S. ___, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). The agents properly arrested Concepcion without a warrant, see United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), and they properly searched his pockets and seized his keys without a warrant, see United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Why then should a warrant be necessary to learn whether the keys in Concepcion's possession operate a lock?

Consider what information the "search" of the lock revealed. It told the agents that Gamalier Concepcion was the tenant of an apartment bearing the name "Concepcion". This information induced him to consent. Where Gamalier Concepcion lived was something the agents could have ascertained in many other ways. They could have looked him up in the telephone book or conducted a computer search of drivers' licenses. If they did not find him (or if they found too many persons of the same name), they could have visited the landlord and asked who lived in apartment 1C. Instead of asking the landlord who lived there, they could have shown the landlord the key in their possession and asked the landlord to compare it with the key issued to the tenant. So too the agents could have followed Concepcion around to learn his residence (as they did; the key just confirmed what they thought they knew). The information the agents obtained from putting the key in the lock thus was no secret. What the officers learned from inverting the turntable in Hicks they could not have come by in any other way; these agents thus invaded less of Concepcion's interest in security of information when they used the key to verify his address. How much cause agents need to do something depends on how deeply they invade the zone of privacy. United States v. Chaidez, 919 F.2d 1193, 1197-98 (7th Cir. 1990). Concepcion, who was not hiding anything in the lock (an unlikely repository for cocaine or a diary, although perhaps James Bond could use it for a microdot), had no interest other than the identity of his apartment. Although the owner of a lock has a privacy interest in a keyhole — enough to make the inspection of that lock a "search" — the privacy interest is so small that the officers do not need probable cause to inspect it. Because agents are entitled to learn a suspect's address without probable cause, the use of the key to accomplish that objective did not violate the fourth amendment.

AFFIRMED.


Summaries of

U.S. v. Concepcion

United States Court of Appeals, Seventh Circuit
Sep 9, 1991
942 F.2d 1170 (7th Cir. 1991)

holding “tenant has no reasonable expectation of privacy in the common areas of an apartment building”

Summary of this case from United States v. Whitaker

holding that the defendant lacked a reasonable expectation of privacy in an apartment building's common entrance

Summary of this case from Harney v. City of Chi.

holding that tenants have no reasonable expectation of privacy in the common areas of an apartment building

Summary of this case from U.S. v. Villegas

holding that the defendant had no reasonable expectation that his activities in an apartment building's common entrance would remain his secret

Summary of this case from U.S. v. Villegas

holding "tenant has no reasonable expectation of privacy in the common areas of an apartment building"

Summary of this case from United States v. Lewis

holding that insertion of key into lock of apartment door constituted a search

Summary of this case from United States v. Bain

holding that insertion of key into lock of apartment door constituted a search

Summary of this case from United States v. Bain

holding "[the defendant] could not assert an expectation of privacy in the common area . . . because the other five tenants sharing the same entrance used the space and could admit as many guests as they pleased"

Summary of this case from U.S. v. Davis

holding the defendant had no legitimate expectation of privacy in common area of apartment building

Summary of this case from State v. Nguyen

holding the defendant had no legitimate expectation of privacy in common area of apartment building

Summary of this case from State v. Dumstrey

holding that there is no reasonable expectation of privacy in the hallway of an apartment building

Summary of this case from Grymes v. State

holding that insertion of key obtained from the defendant after he was arrested into lock of apartment door did not violate the Fourth Amendment

Summary of this case from State v. Ponce

finding no Fourth Amendment violation where police inserted keys into lock of apartment door because "the privacy interest [in the keyhole] is so small that the officers do not need probable cause to inspect it"

Summary of this case from U.S. v. $109,179 in U.S. Currency

finding no reasonable expectation of privacy in a locked hallway of a six-unit dwelling

Summary of this case from Azam v. City of Columbia Heights

finding no reasonable expectation of privacy in hallway of six-unit building with a locked exterior door, reasoning that other tenants "used the space and could admit as many guests as they pleased"

Summary of this case from United States v. Bain

finding no reasonable expectation of privacy in hallway of six-unit building with a locked exterior door, reasoning that other tenants “used the space and could admit as many guests as they pleased”

Summary of this case from United States v. Bain

finding no Fourth Amendment violation where police inserted keys into lock of apartment door because "the privacy interest [in the keyhole] is so small that the officers do not need probable cause to inspect it"

Summary of this case from United States v. Wetselaar

concluding that the insertion of a key into an apartment door lock to see if it fits is a search that does not require probable cause to support it because the privacy interest in the lock's keyhole is minimal

Summary of this case from United States v. Valerio-Palermo

In Concepcion, the court also addressed the question of whether the use of those seized keys to enter the locked common area of the apartment building where the apartment door was located, was an unreasonable search; the court concluded that the defendant had no expectation of privacy in the common area of the building.

Summary of this case from U.S. v. Salgado

In United States v. Concepcion, 942 F.2d 1170 (7th Cir. 1991), the court addressed, among other issues, the question of whether law enforcement officers' use of keys seized from the defendant to try the lock to the door of an apartment without entering the apartment constituted an unreasonable search.

Summary of this case from U.S. v. Salgado

indicating that "it is odd to think of an expectation of 'privacy' in the entrances to a building" since "[t]he vestibule and other common areas are used by postal carriers, custodians, and peddlers" and that the district court was "on solid ground in holding that a tenant has no reasonable expectation of privacy in the common areas of an apartment building"

Summary of this case from Murphy v. City of Chi.

In Concepcion, the police had already identified the building where Defendant lived; they had just arrested him in front of it and spotted his name on the mailbox there. Defendants argue that the keyhole search consequently revealed little new information; it only identified his apartment within an already-known building.

Summary of this case from United States v. Correa

In United States v. Concepcion, 942 F.2d 1170, 1172-73 (7th Cir. 1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search - and any doubts on that score have been scotched by United States v. Jones, 132 S. Ct. 945, 949 (2012), which holds that attaching a GPS device to a vehicle is a search because "the Government physically occupied private property for the purpose of obtaining information."

Summary of this case from United States v. Correa

noting that "the area outside one's door lacks anything like the privacy of the area inside", and holding that "a tenant has no reasonable expectation of privacy in the common areas of an apartment building."

Summary of this case from U.S. v. Correa

involving a building with five apartments other than the defendant's room

Summary of this case from U.S. v. Drummond
Case details for

U.S. v. Concepcion

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. GAMALIER CONCEPCION…

Court:United States Court of Appeals, Seventh Circuit

Date published: Sep 9, 1991

Citations

942 F.2d 1170 (7th Cir. 1991)

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