landlord does not have the right to consent to the search of a tenant's premises. In Chapman, the landlord went to the rented house to invite a new tenant to attend church and noticed a strong odor of whiskey mash coming from inside the house. He contacted the police and when they arrived the landlord told them to go in through an unlocked window. The police went in and found a distillery and 1,300 gallons of whiskey mash. The Supreme Court held that the evidence found during this search was obtained unlawfully and should have been suppressed because "to uphold such an entry without a warrant would reduce the Fourth Amendment to a nullity and leave tenants' homes secure only in the discretion of landlords." Id. at 616-17.
The Supreme Court, in Stoner v. California, 376 U.S. 483, 11 L. Ed. 2d 856, 84 S. Ct. 889 (1964), held that a hotel clerk does not have the right to consent to the search of a guest's room. The court noted that certain hotel personnel have the implied right to enter a guest's room to perform hotel duties, e.g., maid service, janitorial service, etc., but that there is no right to enter where the sole purpose for entering the room is to conduct a search. Id. at 489. By way of analogy, even though a landlord may have the right to enter a tenant's premises to perform certain tasks, e.g., repair fixtures, etc., this does not give the landlord the right to enter the premises for the purposes of conducting a search. Id. at 480-90; United States v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992). The Stoner court further stated that "our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of apparent authority." Id. at 488.
The only indication in this case that the agents from the realty company may have had an independent right to enter the premises is the fact that they had the keys to the padlocks. Even assuming that agents from the realty company did have the right to enter because they had these keys, the question remains for what purposes did the agents have the right to enter. Nothing in the record before this Court indicates that these agents had the right to enter 239 Barrow Street for the purpose of conducting a search or for the purpose of permitting the police to conduct a search.
Thus, the consent to enter given by the agents from the realty company was not a valid consent and does not justify the warrantless search.
This court recognizes the likelihood that the police officers here were motivated by humanitarian concerns. Nevertheless, given the absence of exigent circumstances or a valid consent, these concerns do not obviate the constitutional requirement that a warrant be issued by a neutral and detached magistrate based on a finding of probable cause prior to the search of private property.
Since neither the search which took place when the officers climbed on top of the roof and peered in the second story windows nor the search which took place when the officers gained entry through the door were legal, any and all evidence which was seized during these searches, whether it was in plain view or not, should be Suppressed. Horton v. California, 496 U.S. 128, 136-37, 110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990) ("It is, of course, an essential predicate to any valid warrant less seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed."); United States v. Benish, 5 F.3d 20, 24 (3d Cir. 1993); United States v. Pacheco-Ruiz, 549 F.2d at 1207-08.
IT IS, therefore, on this 23rd day of November, 1993, hereby ORDERED that the motion by defendants Gi Hun Jen, An Di Li, Chun Ming Li and Ming Shan Lu, to suppress the evidence seized from 239 Barrow Street on May 24, 1993 on the basis that it was obtained as the result of an illegal search and seizure is GRANTED.
MARY LITTLE PARELL, United States District Judge