Contracts and the Fourth Amendment

We noted a few months back that The Real Orin Kerr (left) has a forthcoming article on Terms of Service and the Fourth Amendment.  Now, @OrinKerr, a Twitter feed that looks and sounds like that of The Real Orin Kerr, brings us news of a decision from the Seventh Circuit that supports The Real Orin Kerr’s view that constitutional rights should govern over contract terms.  @OrinKerr no longer has a Blue Check, so who knows if it’s really him?

Michael Thomas leased an Atlanta condominium using a fake identification document bearing the name Frieson Dewayne Alredius.  After federal officials arrested Mr. Thomas on drug charges, his landlord gave them access to his apartment.  There, the officials found evidence relevant to more drug charges against Mr. Thomas.  Mr. Thomas moved to have that evidence suppressed as the product of an unlawful search.  The government conceded that people generally have a reasonable expectation of privacy in leased condominiums, but they argued that Mr. Thomas had forfeited that expectation by leasing the apartment under an assumed name.  Mr. Thomas accepted a plea deal and a sentence of 180 months’ imprisonment but preserved his right to appeal the District Court’s denial of his suppression motion.  

In United States v. Thomas, the Seventh Circuit per Judge Easterbrook (right) reversed the District Court’s ruling.  The fact that Mr. Thomas used an alias for the improper purpose of evading arrest on multiple warrants does not deprive him of his expectation of privacy.   While Mr. Thomas’s landlord had a right to terminate his lease based on his misrepresentations, she had no right to invite the police to search his dwelling.  

The state of Georgia provides procedures for the dispossession of a tenant.  Mr. Thomas would have retained possession of the condo until those procedures were completed.   Georgia law provides for no exceptions in the case of a tenant who rents the premises under false pretenses.  Judge Easterbrook cites an analogous case involving an unauthorized driver of a rental car.  In Byrd v. United States, SCOTUS ruled that the unauthorized driver retained their expectation of privacy under the Fourth Amendment.  Even a serious breach of a rental agreement does not deprive the breaching part of their constitutional right to be free from unlawful searches.

The ruling makes perfect sense.  As I learned this week when observing our 1Ls give their oral arguments as part of their legal writing course and in order to try out for our moot court competition teams (including Jessup), I know nothing of criminal law.  Would it have been a problem for law enforcement to have gotten a warrant to search his apartment while Mr. Thomas was in custody?