Search and Seizure Law and Your Self-Storage Operation: A Case Study
Anytime law enforcement officers show up at the door of your self-storage facility, it can be a stressful experience. But a recent decision by the 2nd US Circuit Court of Appeals in United States vs. McKenzie offers helpful advice for this situation. The case was about whether a sniffer dog the area outside of a storage unit is considered a dig under the Fourth Amendment to the Constitution. Let’s dive deeper into the court’s decision and explore what it means for your self-storage business.
The details of the case
Think about the scenario for a moment. What is allowed if the police show up at your self-storage center, without a warrant, with a drug-sniffing dog?
In the McKenzie case, an officer showed up at Mabey’s Self Storage in Rensselaer, New York, with a drug dog but without a warrant, asking to sniff around the area of a suspected drug dealer. Officers eventually recovered approximately 100 pounds of marijuana from the unit linked to Oniel McKenzie. McKenzie argued that the marijuana should have been suppressed as evidence because it was seized following a warrantless dog sniffer, which violated his Fourth Amendment rights.
The court ruled that the sniffer dog did not qualify as a Fourth Amendment search because the officers and drug dog were in common areas of the warehouse, which were accessible to other tenants and staff. A search would have required actual entry into the rented space.
The reasoning behind the decision
In arriving at its decision, the court considered several factors. First, the self-storage company cooperated with the investigation and officers were granted permission to enter the property. The site manager agreed to be interviewed and granted access to surveillance footage and rental records. They also gave officers access to the front door.
Second, a tenant does not have the power to exclude police officers from a warehouse. They are only tenants of the business, and the entry and presence of the agents on the grounds of the property does not constitute an attack on their interests. Although a tenant of self-storage has a reasonable expectation of privacy regarding interior of their rented unit, they make not when it comes to air and space outside the unit. Thus, a smell test is not a violation of a tenant’s Fourth Amendment right.
Police can – whether on their own or with the help of a dog – use smell to identify an odor outside a self-storage unit that could signify the presence of contraband. Just as a person who smokes weed cannot expect such activity to be private if an open window carries the smell into the street, a person who stores items in a unit that emit odors permeating walls and doors cannot expect privacy.
The meaning for self-storage operators
In light of the McKenzie decision, self-storage operators may consider adding language to their rental agreement that explains what a tenant can expect in terms of rights and protections where they are suspected of criminal activity on the premises. It would also be to your advantage to define “criminal activity”.
For example, a contract term might define it as anything that constitutes a crime under federal or state law, or a misdemeanor under state law. This may include any offense defined and prohibited by any criminal act, including but not limited to homicide, theft, possession of explosives or incendiary devices, deadly weapons, gambling, maintenance of a public nuisance and the sale and/or prohibited sale of drugs or alcohol. possession.
A self-storage rental agreement should be simple by prohibiting any criminal activity on the premises and stipulating that any tenant who engages in such activity would at a minimum be evicted. In addition, Renter should expect the Company to cooperate with local and state police and any other official agencies investigating such matters. There should be a specific statement that access to the facilities would be granted to these authorities, as well as a waiver of liability for doing so.
Including these provisions in your lease sets tenants’ expectations for privacy. It can also save you worry and potential liability if a search occurs at your self-storage establishment.
Fourth Amendment searches
The Fourth Amendment prohibits the US government from making “unreasonable searches and seizures”. Generally, this means that the police cannot search a person or their property without a warrant or probable cause. However, what qualifies as a “reasonable search” is an issue that courts have wrestled with for years. The Fourth Amendment guarantees:
“The right of the people to the security of their persons, homes, papers and effects against unreasonable search and seizure shall not be violated, and no warrant shall be issued, but on probable cause, supported by oath or affirmation, and in particular describing the place to be searched and the persons or things to be seized.
A search or seizure is reasonable under the Fourth Amendment if officers have a warrant signed by a judge that is based on reliable information and shows probable cause that a suspect has committed a crime. Additionally, there are times when a search without a warrant may be considered reasonable in the circumstances. When the authorities show up at your self-storage facility, it’s important to know what they’re actually asking for. When requesting access to stand and observe the area outside of a unit, it is different – and has different legal implications – than requesting to physically enter a rented space.
If the police ask to enter a space, they must possess and show you that they have a physical warrant to search that specific unit. Once the warrant has been produced, they have the right to enter the premises with or without your consent. There is little you can do to prevent an officer’s search under a valid warrant, however, you can and should do the following:
Ask to see the numbered units listed on the search warrant. Make sure they match the agent’s location in the field before the search begins. The police are only authorized to search the areas listed in the warrant. If the warrant says they can search units 292 and 293, they cannot access or search adjacent units. The last thing you want is to allow a faulty search that reveals illegal contraband and exposes you to legal liability.
Review the items specified in the search. The warrant will specify the area(s) the officers are authorized to search and the items they are looking for. If you authorize an officer to search an area that is not listed, you waive any right to challenge that search. If you agree, you can’t object, even if the officers couldn’t have searched that place otherwise.
Familiarize yourself with the “unobstructed view doctrine”. If officers are lawfully in a location where a contraband item can be seen, observation of that item is permitted under the Fourth Amendment. For example, if an officer with a warrant or guest officer without a warrant somehow sees illegal items stored in a tenant’s self-storage unit through a crack or another opening, the view is permitted as a basis for obtaining a warrant, so come back and grab the item. The officer would not be allowed access to the tenant’s unit to seize the item without a warrant.
Comply with search requests
If officers or agents ask for access to your self-storage facility without a warrant, you have the right to ask what areas they want to see and why. While it’s generally wise to cooperate with local, state, and federal authorities, it’s also important to protect the rights of your tenants.
As a self-storage operator, you can accede to requests from agents to look inside vacant units, unpaid rented units, or common areas within the property’s perimeters. If you grant them access to these limited spaces, even without a warrant, an unreasonable search would probably not ensue, but you have the right to authorize such a search in any case.
Margaret E. Cooper of Margaret E. Cooper LLC is a Cleveland-based solo practitioner. Practicing law since 2000, she represents self-storage operators on legal matters, including facility acquisitions, lease negotiation and preparation, and real estate disputes. She has been a speaker at industry conferences and has written articles for industry publications. To reach her, call 216.262.8776; E-mail [email protected].