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Court Ruling Strips Apartment Dwellers of Fourth Amendment Rights – Leaves Hallways Open to Warrantless Police Surveillance & Arrests

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Published on: August 31, 2021

WASHINGTON, D.C.—Pushing back against a lower court ruling that leaves apartment dwellers vulnerable to warrantless surveillance and arrests, The Rutherford Institute has asked the U.S. Supreme Court to rule that the hallways outside apartments are protected curtilage which police may not invade without a warrant or a resident’s consent. In an amicus brief filed in Sorenson v. Massachusetts, Rutherford Institute attorneys argue that just as the “curtilage” of detached homes are off-limits to police without a warrant, areas immediately adjacent to an apartment should also be considered protected curtilage under the Fourth Amendment.

Affiliate attorneys David J. Feder, Nathaniel P. Garrett, and Jeremy R. Kauffman of Jones Day in California assisted in advancing the arguments in the Sorenson brief.

“As James Otis recognized, ‘A man’s house is his castle.’ Whether that castle takes the form of an apartment, a humble hut, or a mansion is not the issue,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Privacy should not depend on your home’s square footage. The Fourth Amendment forcefield that protects against warrantless government invasions and surveillance does not discriminate.”

In 2012, Lowell, Mass., police began an investigation into the stabbing of a man who was selling illegal drugs. The victim could not identify the assailant, but a woman who claimed she was an addict and regularly purchased heroin from the victim told police that she and Erich Sorenson had schemed to rob the victim and that Sorenson had stabbed the man in the course of the robbery. Although the woman’s accusation and testimony implicating Sorenson were riddled with inconsistencies, the police decided to go to Sorenson’s residence and arrest him without a warrant. Sorenson lived on the top floor of a three-story apartment building with numerous units on each floor. One officer entered the building, went up to the top floor, made his way to the back, and knocked on the door of Sorenson’s apartment. Sorenson’s wife answered, and the officer asked if Sorenson was home. When Sorenson  came to the door, the officer asked him to step out into the hallway. As he stepped into the hallway, Sorenson was immediately arrested adjacent to the apartment. In the course of the arrest, Sorenson made a statement and the officer noticed a cut on his hand, which he suspected of being connected to the stabbing. In the lower courts, Sorenson argued that evidence of the statement and the cut on his hand should be suppressed because his warrantless arrest violated the Fourth Amendment. Sorenson’s attorney cited established case law holding that a warrantless arrest in the curtilage of a home is unconstitutional. However, the lower courts rejected Sorenson’s arguments, reasoning that because the arrest occurred in a multi-unit apartment building and not a detached home, there was no curtilage around Sorenson’s apartment subject to Fourth Amendment protection. Sorenson then filed a petition with the U.S. Supreme Court challenging the lower courts’ ruling that apartments, part of multi-unit buildings, do not have the curtilage protection afforded other residences. In its amicus brief in support of Sorenson’s petition, The Rutherford Institute argued that under common law history, “curtilage” has been understood broadly and extended to inns and other places where unrelated persons live under the same roof. Under such reasoning, a person’s dwelling should receive all the protections conferred by the Fourth Amendment whether it be an apartment or a house.

The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated and educates the public on a wide spectrum of issues affecting their freedoms.

Amicus brief: Erich Sorenson v. Massachusetts

Article posted with permission from John Whitehead

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