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UNITED STATES v. CONCEPCION

July 17, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
GAMALIER CONCEPCION, Defendant



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the second motion of defendant, Gamalier Concepcion, to suppress evidence. It is denied.

 Concepcion now moves again to suppress evidence claiming that the consent to search his apartment was obtained as a direct result of the illegal entry into the common area of the apartment building and "the illegal entry into the defendant's apartment by the insertion of the key into the lock and the unlocking of the door, and the slight opening of it." Second Motion to Suppress Evidence, para. 8.

 The following facts relevant to the instant motion are based upon testimony elicited at the May 16th hearing:

 
Concepcion and codefendant Gary Pollack, suspected of engaging in drug transactions, were the subjects of extensive surveillance conducted by Drug Enforcement Administration agents and Chicago Police Officers assigned to the DEA task force. This surveillance culminated in the observation of Concepcion and Pollack driving their respective automobiles circuitously in the course of making and covering up a drug transaction on October 18, 1989. Pollack was arrested first. A quantity of cocaine was found in the van Pollack was driving and Pollack implicated Concepcion. *fn1" The agents who arrested Pollack then signaled the agents following Concepcion to arrest Concepcion. Concepcion was apprehended while in an automobile in a parking lot in front of the premises at 5113 E. River Road (the "Apartment Building"). The Apartment Building had at least three stories and contained about eighteen apartments. *fn2"
 
Upon his arrest, Concepcion was removed from the automobile he was driving, handcuffed and placed in a government vehicle. The arresting officers then removed the keys from the ignition of the automobile which Concepcion was driving, in order to render it inoperable, and noticed numerous other keys on the key ring. The arresting officers suspected that Concepcion had a "stash house" nearby, possibly in the Apartment Building. In an attempt to determine whether Concepcion had an apartment in the Apartment Building and if so which apartment he "occupied", the arresting officers took the key ring that they had seized from the automobile Concepcion was driving and went to the front door of the common area of the Apartment Building, which was locked. Noticing that the name "Concepcion" was on an apartment doorbell, they tried the keys on the key ring until they found one which fit the lock to the common area door, opened the common area door and entered into the common area of the Apartment Building. Once inside the common area, the arresting officers observed the mailboxes for tenants in the building and noticed the name "Concepcion" on the mailbox for apartment 1C. The arresting officers then went to apartment 1C and tried the keys until they found one which fit the lock in the door to apartment 1C. Then, in order to identify the key - to determine whether that key was the key to apartment 1C, the arresting officers then turned the key and pushed the door slightly to confirm whether the key would in fact allow access to apartment 1C. Although the door to apartment 1C was opened slightly, the officers did not enter or look into apartment 1C at that time, but instead closed and relocked the door.

 The fourth amendment to the United States Constitution protects people and privacy interests, not property or property rights, against unreasonable searches and seizures. See United States v. Katz, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Concepcion bears the burden of showing that he had a legitimate and reasonable expectation of privacy both in the common area of the Apartment Building and in the apartment, that any entry into the Apartment Building and apartment was illegal, and that therefore any evidence obtained thereby was seized in violation of the fourth amendment. An expectation of privacy "will be violated only if the place is one that the defendant has the right to keep private and subject to his exclusive control." United States v. Holland, 755 F.2d 253, 255 (2d Cir. 1985).

 The Common Area

 The court must emphasize at the outset that the arresting officers, having arrested Concepcion and seized his automobile, were in lawful possession of the keys. Concepcion does not contest this, but nevertheless contends that the arresting officers had no right to enter the common area of the Apartment Building. However, the better reasoned decisions are that searches of common areas of secured apartment buildings do not violate the tenants' legitimate expectations of privacy. See United States v. Williams, 565 F. Supp. 353, 362 n. 15 (N.D. Ill. 1983) (collecting cases). *fn3"

 In United States v. Eisler, 567 F.2d 814 (8th Cir. 1977), the officer gained entry to the common area of an apartment complex by going in right behind a tenant who had opened a door and then from the common hallway observed an individual entering and leaving the defendant's apartment and overheard conversations in the hallway. 567 F.2d at 816. The Eighth Circuit stated that the dispositive question was not whether the officer's entry into the common area was a "technical trespass", but rather "the essential inquiry is whether appellants had a reasonable expectation of privacy in the hallway of the apartment building." Id. Holding that they did not, the court observed that locked entrance ways to apartment complexes provide security, not privacy in common hallways. Thus, although there may be an "expectation of security", there can be no expectation of privacy (which necessarily implies freedom from any intrusion, not merely unwarranted intrusions) in a common hallway.

 Concepcion only had, by virtue of his possession of the key, the right of access to the common area. He could not legitimately exclude anyone from the common area. He had absolutely no control over the activities in the common area. Only the landlord had such control. That the arresting officers were arguably technical trespassers is of no consequence from the fourth amendment perspective. See also United States v. Boden, 854 F.2d 983, 990 (7th Cir. 1988) (activity in common area could not be shielded from anyone; affirming order denying motion to ...


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