by Richard Resch

The U.S. Court of Appeals for the Seventh Circuit ruled that a suspect in a federal drug investigation who leased a condominium using a false name retained a subjective expectation of privacy in the premises that society recognizes as reasonable, and thus, the landlord could not give valid consent to the police to conduct a warrantless search of the premises.

During the course of a federal drug investigation in Indiana targeting Michael Thomas, he obtained multiple fake identification documents, including one under the name “Frieson Dewayne Alredius.” Using this identity, he leased a condominium in Atlanta, Georgia; nevertheless, federal investigators tracked him to the area and arrested him outside the building.

The landlord of the unit told investigators that she had leased it to an individual going by the name of “Alredius Frieson.” With her consent, investigators searched the unit and found drugs, drug paraphernalia, and six cellphones. Investigators obtained warrants to search the phones; they discovered evidence on them that Thomas was trafficking methamphetamine.

Thomas was indicted for conspiracy to distribute methamphetamine. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. He filed a motion to suppress evidence recovered from the leased condo unit, arguing that the landlord could not provide valid consent to search it. The Government conceded that Thomas had a subjective expectation of privacy in the unit but contended that society is not prepared to accept that expectation as reasonable because he obtained the lease for the unit by deceiving the landlord about his identity, which is a crime in Georgia. Ga. Code §§ 16-9-121(a)(4).

The U.S. District Court for the Southern District of Indiana denied Thomas’ motion. He pleaded guilty, reserving his right to appeal the suppression order. The court sentenced him to 180 months in prison. He timely appealed.

The Court began its analysis by noting that Thomas was the leaseholder of the unit at the time it was searched. Tenants may lawfully exclude others from leased premises, including law enforcement, despite the fact the landlord purports to grant consent to a search. Chapman v. United States, 365 U.S. 610 (1961). The Court explained that the mere fact Thomas leased the unit using an alias does not automatically deprive him of a legitimate expectation of privacy with respect to the unit, stating courts recognize that people have innocent reasons to use an alias. United States v. Pitts, 322 F.3d 449 (7th Cir. 2003); see also United States v. Watson, 950 F.2d 505 (8th Cir. 1991) (legitimate expectation of privacy in house bought under fictitious name); United States v. Villarreal, 963 F.2d 770 (5th Cir. 1992) (same for packages addressed to fictitious names); United States v. Newbern, 731 F.2d 744 (11th Cir. 1984) (same for hotel room registered under fictitious name). 

The Court observed that Thomas’ use of an alias, however, was not for an innocent purpose, but again, this still does not automatically mean he lacked a subjective expectation of privacy in the unit. The determinative issue in the case is whether society is willing to accept as reasonable his subjective expectation of privacy in the leased unit that he obtained through deception, according to the Court. See Katz v. United States, 389 U.S. 347 (1967). 

The Court stated that an executed lease does not immunize a deceptive lessee from consequences. As the owner of the unit, the landlord retained a legitimate right to protect her ownership interest in the unit from a fugitive like Thomas. “But how she was entitled to protect this interest bears on the reasonableness of Thomas’s expectation of privacy,” the Court explained. She could have rightfully brought an eviction proceeding against Thomas because his deception violates Ga. Code § 13-5-5 (fraud renders contracts voidable at the discretion of the “injured party”), but that right does not give her the right to invite the police to search his residence. See Chapman.  

The Court noted that the Fourth Amendment is not dependent upon the “intricacies of state law.” But state law “nonetheless can indicate whether society recognizes as reasonable the expectations of tenants such as Thomas,” according to the Court. Under Georgia law, a landlord must resort to the judicial process in order to remove a tenant, even a deceptive one like Thomas, from the leased premises. See Ga. Code §§ 44-7-2, 44-7-50. Consequently, even if the landlord had initiated eviction proceedings against Thomas, he remained “entitled to all the rights of any other leaseholder, including the right to exclude strangers such as police officers, until the proceeding concluded in the landlord’s favor,” the Court explained and concluded that “his expectation of privacy in the interim is one that society recognizes as reasonable.” Thus, the Court held that the landlord could not give valid consent to a warrantless search by police of the unit leased by Thomas.

Accordingly, the Court reversed the District Court’s denial of the motion to suppress and remanded for further proceedings consistent with its opinion. See: United States v. Thomas, 2023 U.S. App. LEXIS 9306 (7th Cir. 2023).