An officer normally needs a search warrant to search a residence, unless an exception to the warrant requirement applies. That’s because residences are protected by a reasonable expectation of privacy under the Fourth Amendment. But what about residences that lie vacant and in disrepair? At what point do they become abandoned such that the reasonable expectation of privacy no longer applies?
This question usually arises when an officer enters a residential structure without a warrant and finds a person and evidence of a crime inside. If the person is a squatter, there is no need to reach the issue of abandonment because a squatter does not have a reasonable expectation of privacy. Because the squatter is not a lawful occupant, society does not deem him or her to have a valid privacy interest in the residence. United States v. McRae, 156 F.3d 708 (6th Cir. 1998) (“[T]he district court properly concluded that [the defendant] did not have a legitimate expectation of privacy by virtue of having stayed a week in the vacant premises that he did not own or rent.”); United States v. Dodds, 946 F.2d 726 (10th Cir. 1991) (ruling that although the defendant had “had used [a] vacant [and boarded up] apartment as a sleeping place before,” he had no reasonable expectation of privacy in the property as he was not a rightful occupant).
But if the person owns or rents the premises, a court may need to determine whether the person has legally abandoned the premises. It is certainly possible to abandon a dwelling. Although most abandonment cases involve personal property, such as a backpack tossed over a fence by a fleeing defendant, the authorities agree that it is also possible to abandon real property. Wayne R. LaFave, Search and Seizure (5th ed. 2012) (“[I]t sometimes happens that premises are in such an extreme state of disrepair and apparently unoccupied as to support the conclusion that those premises apparently have been abandoned.”); United States v. Harrison, 689 F.3d 301 (3d Cir. 2012) (“[A] person can, as he can with any other property, sufficiently manifest an intent to abandon his house.”).
However, temporary vacancy and disrepair do not establish abandonment. Although it is possible to abandon real property for Fourth Amendment purposes, it is not easy. The mere fact that a residence is vacant is not enough. Wayne R. LaFave, Search and Seizure (5th ed. 2012) (stating that premises that are “merely unoccupied” are not necessarily abandoned). Likewise, the mere fact that a residence is in poor condition is insufficient. United States v. Harrison, 689 F.3d 301 (3d Cir. 2012) (“It is unreasonable to assume that a poorly maintained home is an abandoned home. A one-time look at [the house] in its dilapidated condition would not justify the police entering it without a warrant because a reasonably cautious officer would only assume that the person who occupied the home did not maintain it as they should, not that they had clearly manifested an intent to relinquish their expectation of privacy in the house. There simply is no ‘trashy house exception’ to the warrant requirement.”). Cf. State v. Tarantino, 83 N.C. App. 473 (1986) (“The State argues . . . that due to . . . its generally run down appearance, [an old store in which the defendant was growing marijuana] . . . had all the indicia of an abandoned building and any expectation of privacy with respect to its contents was unreasonable. This argument has no merit. . . . [T]he building had been physically secured. The door was padlocked and the windows were covered, providing at least some objective indication that the occupant intended and expected the interior to be private. There is no abandonment if the owner or occupant of property intends to retain a privacy interest in the property.”).
Ongoing renovations do not establish abandonment. If a residence is unoccupied due to renovations, it has not been abandoned, even if there are no doors in the frames and no windows in the sills. To the contrary, the fact that work is being done on the residence shows a continued interest in occupancy. However, the owner’s privacy interest in the property may be reduced to some extent by lack of current occupancy and by the expectation that workers and inspectors may enter the premises. This reduced expectation of privacy may be particularly salient when considering searches by code enforcement personnel rather than law enforcement officers. See Shapiro v. City of Glen Cove, 2005 WL 1076292 (E.D.N.Y. May 5, 2005) (unpublished) (ruling that city inspectors’ warrantless entry into rat-infested home under construction was reasonable where multiple dogs were housed there in concerning conditions). If the building is owned by a commercial enterprise such as a builder or a renovation business, the long history of close regulation of the construction industry may further reduce the owner’s privacy interest against regulatory inspections of various kinds. Frey v. Panza, 621 F.2d 596 (3d Cir. 1980).
What does establish abandonment? Although homes in poor condition or under construction are not necessarily abandoned, homes that are badly damaged, or that are left in extremely poor repair for protracted periods of time, may be deemed abandoned. In Michigan v. Clifford, 464 U.S. 287 (1984), a plurality of the Court stated that “reasonable privacy expectations may remain in fire-damaged premises” as people may continue to live or work there, or may continue to have personal effects there, but that “[s]ome fires may be so devastating that no reasonable privacy interests remain in the ash and ruins.”
Perhaps a more typical example is United States v. Harrison, 689 F.3d 301 (3d Cir. 2012). There, officers entered what they believed to be an abandoned house while investigating a stolen motorcycle. They encountered the defendant, who was sitting in a chair next to a gun and pills. The defendant subsequently argued that the officers’ entry was unlawful as he was renting the premises from the owner and sometimes slept there. The prosecution argued that, at a minimum, the house appeared to be abandoned, rendering the search reasonable. The reviewing court agreed. Officers testified that they had been to, and in, the home many times and that it was in “constant and severe disrepair.” Among other things, “the backyard was full of trash and . . . was covered in weeds and generally untended. There was nothing covering the windows on the second floor. On the front of the house . . . the two bottom windows were boarded up with plywood . . . and the front door was unlocked and ajar.” Thus, although “[i]t is unreasonable to assume that a poorly maintained home is an abandoned home,” especially based on exterior appearance, the court noted that officers in this case knew that the inside was also in disrepair, with “no furnishings other than a single mattress on the top floor” and “human waste fill[ing] the bathtub and toilets.” The court reasoned that “[t]his, combined with the exterior condition of the property, is probative evidence of abandonment.”
These cases indicate that establishing abandonment is difficult and that relying on apparent abandonment may be a legally risky strategy for law enforcement in many cases. As my former colleague Bob Farb put it, it is “difficult to determine” whether abandonment has taken place, so it is “not often a sound basis” for a search. Robert L. Farb, Arrest, Search, and Investigation in North Carolina 198 (5th ed. 2016).