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

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WASHINGTON, D.C.— In refusing to affirm that the hallways outside apartments are protected curtilage which police may not invade without a warrant or a resident’s consent, the U.S. Supreme Court has let stand a lower court ruling that leaves apartment dwellers vulnerable to warrantless police surveillance and arrests. In an amicus brief filed in Sorenson v. Massachusetts, Rutherford Institute attorneys had argued 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 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 claiming to be elsewhere at the time of the stabbing, but the officer noticed a cut on his hand, which he suspected of being connected to the stabbing.

In the lower courts, Sorenson argued that the circumstantial evidence of the statement and the cut on his hand should be suppressed because his warrantless arrest violated the Fourth Amendment. Although the victim initially thought a photo of Sorenson resembled the assailant, the victim later said “It’s not him” upon taking a second look. To convict Sorenson, the government relied heavily on the circumstantial evidence observed by police when arresting Sorensen—evidence which should have been suppressed had the court agreed that the area outside Sorensen’s apartment is protected curtilage, rendering a warrantless arrest in the curtilage of a home unconstitutional. However, the lower courts rejected Sorenson’s arguments, reasoning that because the arrest occurred in a multi-unit apartment building there was no curtilage subject to Fourth Amendment protection. In its amicus brief supporting Sorenson’s petition before the Supreme Court, The Rutherford Institute argued that 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.

Case History

August 26, 2021 • Court Ruling Strips Apartment Dwellers of Fourth Amendment Rights, Leaves Hallways Open to Warrantless Police Surveillance & Arrests

Amicus brief: Erich Sorenson v. Massachusetts

John Whitehead

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He is the author of A Government of Wolves: The Emerging American Police State and The Change Manifesto.
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