CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, April 21, 2021

Choi on Administrative-Turned-Criminal Searches

Joanne Choi has posted Administrative-turned-Criminal Searches: The Fragmented Privacy Rights of Occupants in Condemned Housing (Berkeley Journal of Criminal Law) on SSRN. Here is the abstract:

This Article seeks to bring attention to an area that is currently going unnoticed in legal scholarship: the reasonable expectation of privacy within condemned homes. There are robust debates centered around privacy and Fourth Amendment rights in the context of temporary housing and encampments, but both property and criminal law scholarship have glossed over privacy rights within condemned homes. As society continues to redefine what a “home” is, and as the housing crisis puts more people at risk of property condemnations or unstable housing, there is no better time than now to start a robust discussion on what Fourth Amendment protections are afforded to the home that the municipality condemns.

By analyzing the small but growing number of condemned housing cases, this Article argues that some courts are calibrating privacy rights based on a dangerous categorization of harm that disproportionately affects financially vulnerable individuals. For example, individuals in homes that are deemed unhabitable due to fire damage receive stronger constitutional protections than individuals in homes condemned for failure to maintain utilities. This Article explores the “reasonable expectation of privacy” test articulated by Justice Harlan’s concurrence in Katz v. United States, and how the subjective nature of the test—and its normative determination of the societal value of various places—allows courts to make discretionary decisions that have harmful implications for under-propertied people.

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