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CHAPTER 4
Searches of the Home
“A man’s house is his castle”
—American Proverb
“We built the castle and they’re stealing the furniture”
—James Best
I. INTRODUCTION
Of all the places in which a search can be conducted, the home is considered the most sacred. We’ve all heard the
phrase “A man’s home is his castle,” and the assumed right to privacy in one’s castle was the underlying reason for
the Fourth Amendment. Over time, however, the castle has become increasingly porous (or at least has a lot of drafty
windows), as the courts have carved out one exception after another to justify warrantless searches in the home. The
key to successful challenges to in-home warrantless searches is to be well versed in both the law and the facts of your
The general “rule” (if it can be called a rule anymore) is that police must have a warrant to enter and search a home.
Whenever police enter or search a home without a warrant, analyze the facts to determine if there is an exception to the search
warrant rule that would permit police to conduct the warrantless entry and search. There are so many exceptions to the rule
and you must consider how the police and prosecution will attempt to justify an entry and search under one of these excep-
tions. Be familiar with all of the exceptions, but don’t assume that your client has no case because of the exceptions. There
Never give up on litigating a motion until you thoroughly research the facts and the law. Fourth Amendment cases are always
Search warrants can also be challenged as defective or the search can be challenged for exceeding the scope of the
warrant. These challenges are discussed in §4:30, et seq.
II. EARLY STEPS
§4:01 Initial Investigation
Always interview your client thoroughly as early as possible in the case (see Chapter 1, Early Steps in the Case, for
suggested client interview questions). Be sure to get a complete list of potential witnesses from your client and follow
up with investigative interviews. Visiting the scene and taking photographs and measurements may also be important.
Practice Point: Educate your investigator in the law
A great investigator can make or break your defense. Don’t take for granted that your investigator knows
the correct questions to ask witnesses to build the winning case at the motion hearing. Very few investigators,
even those with law enforcement backgrounds, are familiar with the law of suppression. Be sure to educate
your case investigator as to the relevant law in your case so he can conduct focused interviews on the facts
and issues that will be the key to winning.
§4:02 Preliminary Hearings
Some jurisdictions hold preliminary hearings where the prosecution must demonstrate probable cause to charge a
felony before the case is set for motions and trial. If your jurisdiction holds preliminary hearing this is a good opportunity
§4:03 SUPPRESSING CRIMINAL EVIDENCE 4-2
to question police witnesses in advance of the motion hearing. You may not have the police reports yet as this stage so
you will not have any information other that what is in the complaint and what your client or his witnesses have told
you. Ask as many open-ended questions you can think of to obtain the police version as to how they made entry into
the home and conducted a search.
III. STANDING: FIRST THRESHOLD TO CHALLENGING THE SEARCH OF A HOME
A. Who Has Standing?
§4:03 Generally
The ability to challenge a search or seizure under the Fourth Amendment only occurs when a person has a rea-
sonable expectation of privacy in a particular location. This is often referred to as having the standing to challenge a
home have standing to challenge the police entry into and search of the home. You must cross this standing threshold
A homeowner always has standing to challenge violations of the Fourth Amendment that occur in the home,
regardless of whether or not he is present when the violation occurs. Alderman v. United States, 394 U.S. 165 (1969).
Family members who live in a residence have standing to challenge the search (Bumper v. North Carolina, 391 U.S.
543 (1968)), as do tenants (United States v. Karo, 468 U.S. 705 (1984)). However, when a tenant moves out of a home
after a lease expires or he is evicted, then the tenant no longer has a reasonable expectation of privacy in the premises.
United States v. Buchanen, 633 F.2d 423 (5th Cir. 1980).
§4:04 Guests
Minnesota v. Olson, 495
U.S. 91 (1990).
What if your client isn’t an overnight guest but a regular visitor to a home for business purposes? The prosecutor,
relying on Minnesota v. Carter, 525 U.S. 83 (1998), may claim that the U.S. Supreme Court held that persons present
at a home for the sole purpose of packaging drugs did not have a reasonable expectation of privacy in that home. The
defendants in Carter were only in the home for a few hours before the police entered the premises. They had never
been at the home before. If your clients have an ongoing relationship with the property, Carter can be distinguished
and your clients may have a reasonable expectation of privacy in that residence. Examples where courts have found an
expectation of privacy by persons who were regular social guests include State v. Trecoci, 630 N.W.2d 555 (Wisc. App.
used only for drug packaging and socializing) and United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003) (defendant
knew homeowner for a few weeks, had previously been overnight guest and entered home in owners absence to take
a nap). A prosecutor’s allegation that your client was in a home solely to conduct unlawful business may not be the
An overnight or regular guest’s reasonable expectation of privacy in a home is limited to the areas of the home to
which he has some relationship. Thus, a guest may not have a reasonable expectation of privacy in a bedroom he doesn’t
use or have access to (United States v. Dowell, 33 F.3d 53 (4th Cir 1994) (per curiam)), or a shed in the host’s backyard
(United States v. Phillips, 382 F.3d 489 (5th Cir. 2004)). Courts also have held that a person does not have a reasonable
expectation of privacy in contraband placed in a host’s home without the host’s knowledge or consent. Id. at 496.
B. Proving Standing
§4:05 By Motion and Testimony
The burden of proving standing is on the defense. When challenging the entry and search of a home, your written
pleadings must contain a factual basis to support your client’s reasonable expectation of privacy in the premises being
4-3 SEARCHES OF THE HOME §4:10
If the prosecution challenges your client’s standing to bring the motion, you must call a witness to testify to prove
your client had a reasonable expectation of privacy in the area that was searched. The simplest way, of course, is to
put your client on the stand. The direct examination needed to prove standing is simple. Ask the following questions:
Q: What is your name?
Q: What is your relationship to (name property)?
Q: What is your relationship to [the person in control of this location] (Adapt this question to your facts, such as, to
the homeowner, to the tenant, etc.)?
Q: How often do you go to these premises?
Q: What is your purpose in going there?
Q: How do you access the premises?
§4:06 Caution: Pitfalls of Client Testimony on Standing
Before putting your client on the stand, consider what problems you may be creating when your client’s testimony
establishes a proprietary interest in something that contained contraband or evidence of a crime. The prosecution may
not use your client’s testimony in its case-in-chief in the subsequent criminal trial. Simmons v. United States, 390 U.S.
used on cross examination or in rebuttal. If you have a good case and suppression is dispositive of the case, it can well
be worth the risk. If you don’t, you may be doing more harm than good. The pros and cons of how to proceed should
be thoroughly discussed with your client.
You may also have other reasons not to want to call your client to the stand to establish standing. Consider whether
your client to come to the home. You can ask the same questions as above, adapted to the relationship of the witness
to the property and your client. As with client testimony, consider whether this will help or hurt your case at trial. If
the witness is a co-defendant or otherwise represented by counsel, you will have to contact his lawyer for permission
to interview him to determine if he can give helpful testimony. Most of the time, a co-actor’s attorney will not permit
you to speak to his client. (Even if permission is granted, be vigilant! A friendly co-defendant today is frequently a
prosecution witness tomorrow.)
[§§4:07–4:09 Reserved]
IV. DEFINITION OF A “HOME”
A. Multi-Unit Dwellings
a single-family dwelling. Other types of homes, such as duplexes, multi-unit apartment complexes, rooming houses
and dormitories, present their own set of unique challenges.
§4:10 Private Areas; Common Areas
Clearly private areas inside a multi-unit dwelling, such as one’s apartment or locked storage room, are places
where a tenant has a reasonable expectation of privacy. Dormitory rooms are protected under the Fourth Amendment.
See, e.g., Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971).
The picture is murkier though when there are common areas in an apartment building or rooming house, even
when there is a locked common entryway into the building. United States v. Holland
United States v. Barrios-Moriera, 872 F.2d 12, 14-15 (2nd Cir. 1989). Thus, for example, warrantless searches have
been permitted in common, non-private areas such as:
• The corridors of a rooming house. United States v. Eisler, 567 F.2d 814 (8th Cir. 1977).
• The hallway in a multi-unit apartment building. United States v. Nohara, 3 F.3d 1239 (9th Cir. 1993).
• Basements. United States v. McGranePenny v. United States, 694 A.2d 872
United States v. Hawkins, 139 F.3d 29 (1st Cir.1998).
• A shared back-hall closet in a duplex, where landlord also accessed the closet. United States v. McCaster, 183
F.3d 930 (8th Cir. 1999).
