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Note - Fourth Amendment for Sale: How Income and Living in a Multi-unit Dwelling Impact Your Fourth Amendment Rights


The Fourth Amendment is arguably one of the most important amendments in the U.S. Constitution. It protects citizens from unreasonable searches and seizures in areas that most would consider private, such as the home. The Supreme Court has ruled on numerous cases regarding Fourth Amendment protections over the years, and the Court has explained the Fourth Amendment analysis and how it should be applied by the lower courts. This Note specifically explores how the Fourth Amendment analysis has been applied in the Second Circuit when it comes to apartment buildings. New York is a state that is within the Second Circuit, and apartment buildings and other types of multi-unit dwellings are extremely common there. When examining whether someone has a reasonable expectation of privacy in the common areas of his or her apartment building, the Second Circuit has applied what this Note refers to as the “exclusive control” test. This Note argues that through the use and application of this test, the Second Circuit will likely create a disparity in terms of how Fourth Amendment rights are distributed based on where a person can afford to live. This Note explains that those who can afford to reside in more luxurious and expensive apartment buildings could have a higher expectation of privacy because of the amenities and security measures these abodes offer. This is clearly an unfair result, as the Fourth Amendment should apply equally to all and no one should be able to buy his or her way to privacy. Because of the unequal distribution of Fourth Amendment rights based on income likely to result from the current test that the Second Circuit applies, this Note proposes expanding the Katz “reasonable expectation of privacy test,” as well as expanding the curtilage doctrine so that it extends to common areas of multi-unit dwellings. These solutions would ensure that all are afforded the privacy they deserve, regardless of where they can afford to live.