It is widely recognized that the right to be secure in one’s home extends to the areas immediately surrounding the home, known as the curtilage. Yet for millions of Americans, curtilage protections are often illusory because they live in an apartment building or another type of multi-unit residence.
At trial, Sorenson moved to suppress the fruits of his arrest, asserting that the arrest violated his Fourth Amendment rights. But the trial court found that the space immediately outside of his apartment is not the curtilage of the apartment for Fourth Amendment purposes and denied his motion. They reasoned that because other residents and their guests had access to the floor, there was no reasonable expectation of privacy and thus no Fourth Amendment protection. The appeals court affirmed the trial court.
Sorenson contends that if he instead lived in a house and was arrested outside his door, then the arrest would have been unconstitutional. Sorenson has filed a petition to the Supreme Court, asking the justices to clarify what can be considered apartment curtilage.
Cato has filed an amicus brief in support of Sorenson’s petition, advising the Court to use this case to return to a property-based approach to the Fourth Amendment. The Court used this approach until the latter half of the 20th century until it was replaced by a “reasonable expectation of privacy” doctrine that emerged from Katz v. United States (1967). And while the Katz test adds to the Fourth Amendment’s protections, it did not replace the property-based approach.
Recent Supreme Court cases have returned to the property-based approach, looking to social norms to help determine whether the police acted in a way that ordinary citizens could not. Focusing on social norms demonstrates that the police’s actions here violated the Fourth Amendment. The Supreme Court should recognize that those who live in separate domiciles under a common roof enjoy the same Fourth Amendment rights as those who live in single-family detached homes.
