Haji Azam v. City of Columbia Heights

United States Court of Appeals
For the Eighth Circuit
______________________________
No. 16-1588
______________________________
Haji Azam
Plaintiff - Appellant
v.
City of Columbia Heights
Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: November 17, 2016
Filed: July 31, 2017
[Published]
____________
Before BENTON and SHEPHERD, Circuit Judges, and EBINGER,1 District Judge.
____________
PER CURIAM.
For approximately six months, Defendant–Appellee City of Columbia Heights,
Minnesota (the City), directed its police officers to investigate and strictly sanction
1
The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa, sitting by designation.
Plaintiff–Appellant Haji Azam, the owner and landlord of several historically
unmanageable rental properties, for violating the City’s municipal code. These
enforcement efforts included entering Azam’s rental buildings, without consent or a
warrant, to look for municipal-code violations and citing Azam for all violations
discovered. Based in part on these violations, the City revoked the rental licenses
authorizing Azam to rent units to tenants. Azam filed an action against the City for
its conduct, alleging, among other claims, the City violated 42 U.S.C. § 1983 by
subjecting Azam to the deprivation of his rights, privileges, or immunities under the
Fourth and Fourteenth Amendments to the United States Constitution. The City filed
a motion for summary judgment, and the district court2 granted the City summary
judgment on all of Azam’s claims.
Azam appeals only the court’s ruling granting summary judgment on Azam’s
Fourth and Fourteenth Amendment claims. Thus, there are two issues on appeal. First,
whether there is a genuine dispute of material fact as to whether the City—by
subjecting Azam to the increased enforcement efforts described in greater detail
below—violated Azam’s substantive-due-process rights under the Fourteenth
Amendment. Second, whether there is a genuine dispute of material fact as to whether
the City—in entering the rental buildings’ common areas, without consent or a
warrant, to look for municipal-code violations—violated Azam’s Fourth Amendment
right to be free from unreasonable governmental searches.
For the following reasons, we affirm the district court. We conclude Azam did
not demonstrate, as a matter of law, the City violated his substantive-due-process
rights under the Fourteenth Amendment. The City’s conduct did not overcome the
high standard required for a substantive-due-process claim—that is, its conduct was
not arbitrary, oppressive, and shocking to the conscience. Also, in viewing the alleged
2
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
-2-
facts in the light most favorable to Azam (as we must do), we conclude there is no
genuine dispute of material fact regarding whether the City violated Azam’s Fourth
Amendment rights. Azam did not have a reasonable expectation of privacy in the
common spaces entered by the City’s police officers. Any argument that the police
officers may have physically intruded on constitutionally protected areas by
trespassing in Azam’s buildings to search for incriminating evidence was waived. We
address each claim in turn.
I. Background
We recount the facts in the light most favorable to the non-moving party. See
Myers v. Lutsen Mountains Corp., 587 F.3d 891, 893 (8th Cir. 2009).
From September 2013 to January 2014, the City directed its police officers to
conduct weekly investigations of Azam’s rental buildings. The police officers
allegedly entered Azam’s buildings (even if they were locked), looked for violations
of the City’s municipal ordinances, and cited Azam for any violations they found.
Through these investigations, the City cited Azam numerous times for municipal-
code violations, far more frequently than it did for other rental-property owners in the
city. Based on these citations and the recurring, significant problems at Azam’s
properties, the City revoked Azam’s rental licenses.
During the relevant time period, Azam owned five apartment buildings in
Columbia Heights, Minnesota. These apartment buildings included one 4-unit
building on Pierce Street, two 7-unit buildings on Tyler Street, and two 11-unit
buildings on University Avenue. To lease the units in his buildings to tenants, Azam
acquired and maintained a rental license for each building, as was required by the
Columbia Heights municipal code. See Columbia Heights, Minn., Property
Maintenance Code (Property Code) § 5A.401(A).
-3-
According to the City, Azam’s rental properties experienced “an inordinate
amount of crime and calls for service” beginning in 2009. In an e-mail dated May 23,
2009, Columbia Heights Police Chief Scott Nadeau notified Police Sergeant Matt
Markham of the City’s complaints regarding Azam’s rental properties. Chief Nadeau
commented that one of Azam’s Tyler Street properties “looks like it continues to be
a problem” and that the City should “start to try and document the insanity on that
property and in the neighborhood for when (not if) we try to pull the license.” From
2009 to 2013, Azam and City officials communicated regarding issues with his
properties in person at least twenty-two times and via phone, e-mail, and letter
numerous other times. According to Columbia Heights Police Captain Lenny Austin,
Azam failed to address the problems at his rental properties and the City “ha[d] not
had other rental properties that ha[d] risen to the level of calls for service and criminal
activity compared to [Azam’s] properties.”
The Columbia Heights municipal code grants the City various powers to deal
with properties, including rental properties, that violate the City’s housing, nuisance,
and safety ordinances. For example, the Columbia Heights City Council may revoke
a rental license when it determines the rental property does not comply with the
Property Code. Property Code § 5A.408(A)–(B). Also, when two or more rental
licenses of the same property owner have been revoked, the property owner is
ineligible to hold a Columbia Heights rental license for a period of five years, and
thus, any rental license the property owner holds is revoked. Id. § 5A.408(E). The
City also may impose a “nuisance call” fee when the City responds to three or more
nuisance calls regarding the same property within one year. Columbia Heights, Minn.,
Public Health and Safety Code (Safety Code) § 8.804(a). Finally, although not
established in the Columbia Heights municipal code, the City sometimes enters into
a “mitigation plan” with an owner of a rental property experiencing significant
criminal activity. Through a mitigation plan, the City recommends certain actions
intended to alleviate those issues.
-4-
Azam and the City entered into mitigation plans in 2009 for Azam’s Tyler
Street properties and in 2010 for his University Avenue properties. Azam
implemented the mitigation plans’ recommendations. According to Captain Austin,
other rental-property owners who had implemented mitigation plans both lowered the
levels of criminal activity at their properties and maintained those lower levels. But
with Azam’s properties, Captain Austin stated, the mitigation plans helped lower the
amount of criminal activity only initially, before it again increased.
On September 18, 2013, Captain Austin sent a memorandum to the City’s
police officers, notifying them of additional efforts to address problems at Azam’s
buildings. Captain Austin directed the police officers to investigate the buildings each
week and look for municipal-code violations involving “security, safety and health
issues.” Captain Austin later told the officers that if they were unable to enter the
buildings, they should use the buildings’ emergency fire keys to unlock the exterior
doors and enter. The City did not obtain a warrant to search the properties, nor does
it assert it had consent to enter Azam’s buildings or conduct the investigations.
Although the City’s police department conducted this type of investigation at other
properties in the past, the police department had not done so on a weekly basis. The
police department conducted its investigations of Azam’s buildings on a weekly
basis, Captain Austin explained, because no other property had experienced “the level
of calls for service and criminal activity compared to [Azam’s] properties.” Captain
Austin also stated rental-property investigations were customarily handled by the fire
department, rather than the police department.3
From September 15, 2013, through December 22, 2013, the City’s police
officers cited Azam ten times for a total of thirteen violations associated with his
3
The Property Code provides: “The City Manager and his designated agents
shall be the Property Maintenance Enforcement Officer who shall administer and
enforce the provisions of the chapter.” Property Code § 5A.301.
-5-
rental properties.3 Azam received seven violations for failing to have compliant
security doors, two violations for failing to secure laundry-room doors, three
violations for failing to have smoke detectors, and one violation for failing to
promptly remove snow accumulation. Three of the citations, though it is unclear
which, occurred while fire- or police-department personnel were in Azam’s buildings
for emergency or unrelated calls. It appears some of the violations—such as the
violation for failing to remove snow—did not require entry into the interior of the
property. Azam also paid the City for numerous nuisance-call fees.
In January 2014, the City’s fire and police chiefs sent Azam a letter notifying
him the City Council would meet on March 24, 2014, to discuss the problems at his
properties. They also informed Azam they would advise the City Council not to
renew his rental licenses for his University Avenue properties.
The hearing regarding Azam’s University Avenue properties commenced on
March 24, 2014, as scheduled. The City’s staff recommended revoking Azam’s rental
licenses for these properties “due to a disproportionate amount of police calls,
criminal activity and nuisance violations at Azam’s properties.” At the end of the
hearing, the City Council revoked Azam’s rental licenses for his University Avenue
properties. The day after the hearing, Captain Austin sent the City’s police officers
a memorandum cancelling the weekly investigations of Azam’s rental properties.
On April 17, 2014, Azam sold his University Avenue and Tyler Street
properties.
Despite the fact Azam had sold his Tyler Street properties, the City Council
held a hearing regarding those properties and Azam’s Pierce Street property on April
28, 2014. The City’s staff recommended revoking Azam’s rental licenses for these
3
A Minnesota state court dismissed all of the citations.
-6-
properties. At the end of the hearing, the City Council revoked Azam’s rental licenses
for the Tyler Street properties. The City Council then revoked Azam’s remaining
rental license—for his Pierce Street property—pursuant to Property Code section
5A.408(E), because the City Council had revoked at least two of Azam’s rental
licenses and, therefore, he was not eligible to hold a Columbia Heights rental license
for five years. According to the lower court’s findings, Azam’s rental licenses appear
to be the only rental licenses the City Council revoked based upon a “‘[p]ersistent
[and] disproportionate number of police calls, criminal activity,’ and generically titled
‘housing code violations.’”
On June 13, 2014, Azam sold his Pierce Street property. He no longer owns
any property in Columbia Heights, Minnesota.
On March 24, 2014 (the same day as the first City Council hearing on Azam’s
properties), Azam filed a complaint against the City. Azam alleged the City had
violated: 1) 42 U.S.C. § 1983, by infringing his Fourth and Fourteenth Amendment
rights; and 2) the Fair Housing Act and various federal statutes, by infringing his
rights to be free from unlawful discrimination. Azam also requested declaratory
judgment and injunctive relief. The City filed a motion for summary judgment on all
claims, which Azam resisted. The district court concluded there was no genuine
dispute of material fact and Azam failed to produce evidence showing, as a matter of
law, the City: 1) subjected Azam to unlawful discrimination in violation of the Fair
Housing Act and the other federal statutes; 2) invaded a constitutionally protected
area or an area where Azam held a reasonable expectation of privacy in violation of
the Fourth Amendment; or 3) violated Azam’s substantive-due-process rights in
violation of the Fourteenth Amendment. The district court also denied Azam’s
request for declaratory judgment and injunctive relief.
-7-
Azam timely filed a notice of appeal. On appeal, Azam challenges only the
district court’s ruling granting summary judgment to the City on Azam’s Fourth and
Fourteenth Amendment claims. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II. Standards of Review
When considering a motion for summary judgment, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The moving party bears the burden to make this showing. Id. In considering
the sufficiency of the record, we view it “in the light most favorable to the non-
moving party.” Myers, 587 F.3d at 893.
III. Discussion
Azam appeals two rulings from the district court’s order. First, Azam
challenges the district court’s ruling granting the City summary judgment on Azam’s
claim the City violated his substantive-due-process rights through its increased
enforcement efforts against Azam for municipal-code violations. Second, Azam
appeals the district court’s ruling granting the City summary judgment on Azam’s
claim the City violated his Fourth Amendment rights by entering the common areas
of his rental properties without a warrant to look for municipal-code violations.
Azam’s claims for alleged constitutional violations are based on 42 U.S.C. § 1983,
which establishes a cause of action against a person4 who, under color of law,
4
The Supreme Court has held, “Local governing bodies,” including
municipalities, “can be sued directly under § 1983 . . . where . . . the action that is
alleged to be unconstitutional implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.”
Monell v. Dep’t of Social Servs. of N.Y., 436 U.S. 658, 690 (1978).
-8-
“subjects, or causes to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the Constitution and
laws.”
A. Fourteenth Amendment Claim
Azam claims the City violated his Fourteenth Amendment rights when it,
“under color of law, engaged in a pattern of arbitrary and oppressive police behavior
targeting his properties and holding him liable without notice for the acts of his
tenants with the intent to force him out of business.” Azam argues the district court
erred in dismissing his Fourteenth Amendment claim because a “reasonable jury
could conclude . . . [the City] acted with deliberate indifference to Mr. Azam’s rights,
in a way that was arbitrary and oppressive and shocks the conscience, and that it
should be held liable for its actions.” We must determine whether the district court
properly granted summary judgment on this claim.
This Court has repeatedly emphasized the high burden facing a person who
claims a violation of his or her Fourteenth Amendment rights. To demonstrate the
government violated a person’s substantive-due-process rights, the claimant must
show evidence of “a constitutionally protected property interest and that
[governmental] officials used their power in such an arbitrary and oppressive way that
it ‘shocks the conscience.’”5 Entergy, Ark., Inc. v. Nebraska, 241 F.3d 979, 991 (8th
Cir. 2001) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998)). In
doing so, the claimant must show “more than that the government decision was
5
Azam contends the City “never challenged—and the court below never
held—[Azam] does not have a constitutionally protected interest in the use of his
properties and the rental licenses for the apartment buildings he owned.” The City
does not dispute this assertion. We therefore assume Azam had a constitutionally
protected property interest.
-9-
arbitrary, capricious, or in violation of state law.” Chesterfield Dev. Corp. v. City of
Chesterfield, 963 F.2d 1102, 1104 (8th Cir. 1992). Rather, the allegations must
demonstrate, in part, a “truly irrational” governmental action, such as “attempting to
apply a zoning ordinance only to persons whose names begin with a letter in the first
half of the alphabet.” Id. “The government action must be arbitrary in the
constitutional sense.” Rozman v. City of Columbia Heights, 268 F.3d 588, 593 (8th
Cir. 2001) (en banc) (citing Collins v. City of Harker Heights, 503 U.S. 115, 129
(1992)). “[T]he theory of substantive due process,” we have noted, “is properly
reserved for truly egregious and extraordinary cases.” Chesterfield Dev. Corp., 963
F.2d at 1105. Such a case must be so abusive as to be “offensive to human dignity.”
See New v. City of Minneapolis, 792 F.2d 724, 726 (8th Cir. 1986).
This Court’s opinion in Gallagher v. Magner is instructive. 619 F.3d 823 (8th
Cir. 2010). In Gallagher, the city of St. Paul, Minnesota, increased its enforcement
efforts on certain categories of housing. Id. at 829. The city targeted all rental
properties because a city official overseeing housing-code enforcement “favored
owner-occupied housing over rental housing ‘for the sake of the neighborhood.’” Id.These enforcement efforts included “sweep[ing]” rental properties to find and cite for
housing-code violations, citing every violation officials could find at not only rental
properties reported to officials but also all nearby rental properties, and requiring
numerous rental-property owners to undertake expensive renovations of their rental
properties. Id. at 829–30. This Court held, “In light of the uncontested legitimate
goals of enforcing the Housing Code, there is insufficient evidence to reasonably
conclude that this is a ‘truly egregious and extraordinary’ example of government
regulation.” Id. at 840.
Our opinion in Rozman v. City of Columbia Heights also guides our analysis.
268 F.3d 588. In Rozman, the city of Columbia Heights, Minnesota, revoked a
landlord’s rental licenses after he refused to schedule city inspections of his rental
units. Id. at 590. The en banc court held that, even assuming the City had
-10-
misinterpreted the municipal code when revoking the landlord’s rental licenses:
“While the action of the City towards [the landlord] . . . may not have complied with
the provisions of the law as it may ultimately be interpreted, that action certainly did
not rise to the level of a constitutional violation of substantive due process.” Id. at
593.
Here, Azam claims the City violated his substantive-due-process rights through
its “pattern of arbitrary and oppressive police behavior targeting his properties and
holding him liable without notice for the acts of his tenants with the intent to force
him out of business—eventually succeeding.” In support of this claim, Azam
advances four arguments: 1) the nuisance-call fees were imposed in an arbitrary
manner; 2) the City’s increased enforcement efforts were an oppressive use of its
police power; 3) the City showed deliberate indifference to Azam’s rights; and 4) the
City’s actions shock the conscience. We disagree with these contentions. We
conclude Azam has failed to demonstrate, as a matter of law, the City engaged in
arbitrary, oppressive conduct that shocks the conscience.
First, the City did not impose its nuisance-call fees in an arbitrary manner. In
support of this claim, Azam contends the City “arbitrarily cho[se] to treat all buildings
the same, whether single-family dwellings or Mr. Azam’s 11-family apartment
buildings” and it “h[eld] Mr. Azam responsible, not only for the actions of his tenants
on his property, but the actions of his tenants when not at Azam’s rental properties,
or even the actions of non-residents on his property.” The municipal ordinance
establishing nuisance-call fees expressly declares the purpose of such fees is to
“protect the public safety, health and welfare and to prevent and abate repeat service
response calls by the city to the same property or location for nuisance service
calls . . . which prevent police or public safety services to other residents of the
city . . . [and] that generate[] extraordinary costs to the city.” Safety Code § 8.801
(emphasis added). By imposing these fees, the City seeks to forgo City officials from
having to repeatedly respond to troublesome properties—regardless of the number of
-11-
units—to address nuisance violations. By imposing these fees, the City was not acting
in an arbitrary manner.
Second, the City’s increased enforcement efforts against Azam were not an
oppressive use of its police power. Azam claims the City intended to and succeeded
in revoking his rental licenses through its enforcement efforts. But the record reflects
approximately four years of housing and safety problems at Azam’s rental properties,
and efforts by the City to remedy these problems. The City alleges it increased its
enforcement efforts at Azam’s rental properties because of the persistent,
disproportionate housing- and safety-code problems at the properties. The City’s
enforcement efforts against Azam were, as the City asserts, “for the legitimate
purpose of protecting the health, safety, and welfare of residential tenants.” For
example, the City points to an incident where a handgun was recovered from a baby’s
crib as an incident leading “the City to believe more effective measures were
necessary to protect citizens living in Azam’s buildings.” In support of his argument,
Azam highlights the fact that the City’s police officers discontinued their enforcement
efforts at Azam’s rental properties after he sold the rental properties. This, too, the
City explained, stating it “stop[ped] the walkthroughs to provide the new owner an
opportunity to improve conditions at the apartment complexes without additional
enforcement measures.” Even accepting Azam’s assertion the City intended to revoke
his rental licenses, the City’s actions were not an oppressive use of its police power.
Third, Azam has failed to show the City acted with deliberate indifference to
Azam’s constitutional rights. In support of this claim, Azam asserts many of the same
arguments discussed above. This claim fails for the same reasons—the City did not
act in an arbitrary, oppressive manner. Additionally, although a municipality can be
liable under 42 U.S.C. § 1983 for failing to adequately train its police officers “where
the failure to train amounts to deliberate indifference to the rights of persons with
whom the police come into contact,” City of Canton v. Harris, 489 U.S. 378, 388
(1989), there is no evidence of such a violation here.
-12-
Fourth, Azam’s claim does not overcome the high standard required for the last
element of a substantive-due-process claim—i.e., that the City’s actions shock the
conscience. It does not shock the conscience that the City increased its enforcement
efforts at properties with persistent, significant criminal conduct, nuisance violations,
and Property Code violations; that the City issued nuisance-call fees to Azam after
repeatedly responding to his rental properties for nuisance calls; or that the City cited
Azam for nuisance violations by his tenants or by non-residents at the rental
properties. Simply put, the City’s actions do not shock the conscience.
The government, by oppressively and arbitrarily imposing its police power on
a person, can violate that person’s substantive-due-process rights. See Rochin v.
California, 342 U.S. 165, 209–10 (1952). But the City’s use of its powers to deal with
historically unmanageable properties—even in the manner Azam alleges—does not
rise to the level of a Fourteenth Amendment violation. We therefore affirm the district
court’s ruling granting the City summary judgment on Azam’s Fourteenth
Amendment claim.
B. Fourth Amendment Claim
Azam contends the district court erred in dismissing his Fourth Amendment
claim. The district court held the City did not, as a matter of law, violate Azam’s
Fourth Amendment rights, concluding Azam did not have a reasonable expectation
of privacy in the rental properties’ common areas and the City did not intrude on a
constitutionally protected area. The question now before the Court is whether there
is a genuine dispute of material fact as to whether Azam had a reasonable expectation
of privacy that was violated.6
6
The Supreme Court has also expounded a property-rights paradigm for
analyzing whether a Fourth Amendment search occurred. The property-rights
paradigm is largely based on the “trespass test.” Under this test, a Fourth Amendment
-13-
The Fourth Amendment prohibits the government from conducting
unreasonable searches and seizures. U.S. Const. amend. IV. It provides, in pertinent
part: “The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .” Id. It
is well established the Fourth Amendment protects a person in his home7 and place
of business. See Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978) (concluding,
based on the Fourth Amendment’s history, “it is untenable that the ban on warrantless
searches was not intended to shield places of business as well as of residence”); G.M.
Leasing Corp. v. United States, 429 U.S. 338, 353 (1977) (“The respondents do not
contend that business premises are not protected by the Fourth Amendment. Such a
proposition could not be defended in light of this Court’s clear holdings to the
contrary.”); See v. City of Seattle, 387 U.S. 541, 546 (1967) (“We hold only that the
basic component of a reasonable search under the Fourth Amendment—that it not be
enforced without a suitable warrant procedure—is applicable in this context, as in
search occurs when the government trespassers or “physically intrud[es] on a
constitutionally protected area.” Grady v. North Carolina, 135 S. Ct. 1368, 1370
(2015) (per curiam) (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)).
The district court noted: “The parties did not discuss whether the search intruded on
a constitutionally protected area under” Jones, thus “Azam must rely on the
reasonable expectation of privacy standard.” Because Azam does not put forth any
argument challenging this determination, he has waived appellate review of his
Fourth Amendment claim under the property-rights paradigm. See Chay-Velasquez
v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
7
Azam concedes he never lived in any of the rental properties at issue here. We
therefore conclude Azam is not entitled to the Fourth Amendment protections
afforded a person in his or her home. See Florida v. Jardines, 133 S. Ct. 1409, 1414
(2013) (“At the [Fourth] Amendment’s ‘very core’ stands ‘the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.’”
(quoting Silverman v. United States, 365 U.S. 505, 511 (1961)).
-14-
others, to business as well as to residential premises.”); see also Michigan v. Clifford,
464 U.S. 287, 291–92 (1984) (“Except in certain carefully defined classes of cases,
the nonconsensual entry and search of property is governed by the warrant
requirement of the Fourth . . . Amendment[].” (footnote omitted)); Donovan v. Dewey,
452 U.S. 594, 598 (1981) (“[T]he Fourth Amendment’s prohibition against
unreasonable searches applies to administrative inspections of private commercial
property.”).
The Supreme Court has interpreted the Fourth Amendment as proscribing
unreasonable searches that intrude upon a person’s reasonable expectation of privacy.
Bond v. United States, 529 U.S. 334, 338–39 (2000); see United States v. Jones, 565
U.S. 400, 406 (2012); see also United States v. DE L’Isle, 825 F.3d 426, 431 (8th Cir.
2016). Under this test, a party asserting a violation of his or her reasonable
expectation of privacy must show both: 1) “an actual (subjective) expectation of
privacy,” and 2) “that the expectation [is] one that society is prepared to recognize as
‘reasonable.’” DE L’Isle, 825 F.3d at 431 (alteration in original) (quoting Katz v.
United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring)); accord Bond, 529
U.S. at 338. Based on the reasonable-expectation-of-privacy test, this Court held a
resident of an apartment building did not have a reasonable expectation of privacy in
the common areas, including the hallways, of the building. United States v. Eisler,
567 F.2d 814, 816 (8th Cir. 1977); see also United States v. McGrane, 746 F.2d 632,
634–35 (8th Cir. 1984) (holding the defendant did not have a reasonable expectation
of privacy in his storage locker, kept in the basement of his apartment building, that
was accessible to the building’s residents and landlord). Our sister circuits similarly
held, under analogous fact patterns, that no such reasonable expectation of privacy
existed. See, e.g., United States v. Correa, 653 F.3d 187, 190–91 (3d Cir. 2011);
United States v. Villegas, 495 F.3d 761, 767–69 (7th Cir. 2007); United States v.
Dillard, 438 F.3d 675, 682–83 (6th Cir. 2006); United States v. Ramirez, 145 F.
App’x 915, 922–23 (5th Cir. 2005); United States v. Miravalles, 280 F.3d 1328,
1331–33 (11th Cir. 2002); United States v. Hawkins, 139 F.3d 29, 32–33 (1st Cir.
-15-
1998); United States v. Nohara, 3 F.3d 1239, 1241–42 (9th Cir. 1993); United States
v. Barrios-Moriera, 872 F.2d 12, 14–15 (2d Cir. 1989), abrogated on other grounds
by Horton v. California, 496 U.S. 128 (1990).
This Court has not had occasion to determine whether an owner or landlord of
a multi-unit dwelling has a reasonable expectation of privacy in the common
areas—including the interior hallways and laundry rooms—of the dwelling. We
conclude Azam did not have a reasonable expectation of privacy in the common areas
of his rental buildings because he did not maintain a subjective expectation of privacy
regarding information in these areas, nor would any such expectation have been
objectively reasonable.
First, Azam did not demonstrate he had a subjective expectation of privacy
regarding information within the common areas of his rental buildings. Although
Azam owned the rental buildings, he has not posited sufficient facts to demonstrate
he had an actual, subjective expectation of privacy in the common areas of his
buildings. See, e.g., Dow Chem. Co. v. United States, 476 U.S. 227, 237 & n.4 (1986)
(discussing the alleged facts purportedly evincing a subjective expectation of
privacy); California v. Ciraolo, 476 U.S. 207, 211–12 (1986) (same). The common
areas to these rental buildings were behind doors with locks. But Azam does not
assert he used the locked doors to safeguard certain intimate information from “the
intruding eye . . . [or] the uninvited ear.” Katz, 389 U.S. at 352; cf. McGrane, 746
F.2d at 634–35. Azam therefore has not demonstrated he had a subjective expectation
of privacy.
Second, even assuming Azam had a subjective expectation of privacy regarding
information exposed in the common areas of his rental properties, that expectation of
privacy would not have been objectively reasonable. The common areas in each rental
building were accessible and available to that building’s residents, the residents’
guests, any of Azam’s agents, and others legally passing through with an express or
-16-
implicit license (e.g., canvassers, solicitors, mail-carriers, and more). See Florida v.
Jardines, 133 S. Ct. 1409, 1415 (2013). Therefore, any subjective expectation of
privacy regarding information in the common areas that Azam sought to keep
private—relevant here, evidence of municipal-code violations—would not have been
objectively reasonable. Society would not be willing to endorse as objectively
reasonable Azam’s purported privacy interest in the rental buildings’ common areas,
high-traffic areas that, based on the record, Azam did little to protect or oversee. This
Court already concluded a tenant of an apartment building did not have a reasonable
expectation of privacy in the common areas of the building. See, e.g., McGrane, 746
F.2d at 634–35; Eisler, 567 F.2d at 816. We similarly conclude any subjective
expectation Azam could have demonstrated would not have been objectively
reasonable.
The judgment is affirmed.
______________________________
-17-