Anytime law-enforcement officers show up at your self-storage facility gate, it can be an anxiety-inducing experience. But a recent decision by the 2nd U.S. Circuit Court of Appeals in United States v. McKenzie offers some helpful guidance for this situation. The case focused on whether a dog sniff of the area outside a storage unit is considered a search 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’s allowable if police show up at your self-storage facility, warrantless, 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 no warrant, asking to sniff around the area of a suspected drug dealer’s unit. Officers ultimately 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 as a result of a warrantless dog sniff, which violated his Fourth Amendment rights.

The court held that the dog sniff wasn’t considered a search within the meaning of the Fourth Amendment because the officers and drug dog were in the storage facility’s common areas, which were accessible to other tenants and personnel. A search would have required actual entry into the rented space.

The Reasoning Behind the Ruling

In arriving at its decision, the court examined several items. First, the self-storage business cooperated with the investigation, and the officers had permission to enter the property. The site manager agreed to be interviewed and permitted access to surveillance footage and rental records. They also gave the officers access to the front gate.

Second, a tenant doesn’t have the authority to exclude police officers from a storage facility. They are merely a renter of the business, and officers’ entry and presence on the property grounds aren’t an infringement on their interests. Though a self-storage tenant does have a reasonable expectation of privacy regarding the interior of their rented unit, they do not when it comes to the air and space outside the unit. Thus, a smell test isn’t a violation of a tenant’s Fourth Amendment right.

Police can—whether by themselves or through the use of a canine—use sense of smell to identify an odor outside of a self-storage unit that might signify the presence of contraband. Just as a person smoking pot can’t expect such activity to be private if an open window carries the odor onto the street, a person storing items in a unit that emit odors permeating the walls and doors can’t have an expectation of privacy.

The Meaning for Self-Storage Operators

In light of the McKenzie decision, self-storage operators may want to consider adding language to their rental agreement that explains what a tenant can expect in terms of rights and protections in cases when they’re suspected of criminal activity within the premises. It would also be to your advantage to define “criminal activity.”

For example, a contract clause might define it as anything that constitutes a felony under state or federal law, or a misdemeanor under state law. It might 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, maintaining a public nuisance, and engaging in prohibited drug or alcohol sales and/or possession.

A self-storage rental agreement should be straightforward in forbidding criminal activity on the premises and set forth that any tenant who conducts such activity would be evicted at a minimum. In addition, the tenant should expect the business to cooperate with local and state police as well as any other official agency investigating such matters. There should be specific mention that facility access would be granted to such authorities, along with a disclaimer of liability for doing so.

Having these provisions in your lease sets tenant expectations for privacy. It can also save you from worry and potential liability if a search does take place at your self-storage facility.

Searches Under the Fourth Amendment

The Fourth Amendment prohibits the U.S. government from conducting “unreasonable searches and seizures.” In general, this means police can’t search a person or their property without a warrant or probable cause. However, what’s considered a “reasonable search” is a question with which the courts have grappled for years. The Fourth Amendment guarantees:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly 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’s based on reliable information and shows probable cause that a suspect has committed a crime. In addition, there are times when a search without a warrant may be considered reasonable under the circumstances. When authorities show up at your self-storage facility, it’s important to know what they’re actually requesting. When they ask for access to stand and observe the area outside of a unit, it’s different from—and has different legal implications than—asking 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 is produced, they’re entitled to enter the premises with or without your consent. There’s little you can do to prevent an officer’s search pursuant to a valid warrant, however, you can and should do the following:

Ask to see the numbered unit(s) listed on the search warrant. Make sure they correspond to the officers’ location on the grounds before the search begins. Police are only permitted to search the areas listed in the warrant. If the warrant indicates they can search units 292 and 293, they can’t access and search adjacent units. The last thing you want is to grant a mistaken search that turns up 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 permitted to search and what items they’re seeking. If you give an officer consent to search an area that isn’t listed, you give up any right to challenge that search. If you consent, you can’t challenge, even if the officers wouldn’t otherwise have been able to search that location.

Be familiar with the “plain view doctrine.” If officers are lawfully in a place where a contraband item can be viewed, then observation of that item is permitted under the Fourth Amendment. For example, if an officer with a warrant or an invited officer without a warrant somehow views illegal items stored in a tenant’s self-storage unit through a crack or some other opening, the view is permitted as a basis to procure a warrant, then come back and seize the item. The officer wouldn’t be authorized to access the tenant’s unit to seize the item without a warrant.

Complying With Search Requests

If officers or agents request permission to access your self-storage facility without a warrant, you’re within your rights to ask which areas they’re interested in viewing and why. While it’s generally wise to cooperate with local, state and federal authorities, it’s also important to protect your tenants’ rights.

As a self-storage operator, you can grant officers’ requests to look inside vacant units, unpaid rented units or common areas within the facility perimeters. If you grant them access to these limited spaces—even without a warrant—a violative search wouldn’t likely ensue, but you’re within your rights to permit such a search in any case.

Margaret E. Cooper of Margaret E. Cooper LLC is a solo practitioner based in Cleveland. Practicing law since 2000, she represents self-storage operators on legal matters including facility acquisitions, lease negotiation and preparation, and property litigation. She’s been a presenter at industry conferences and authored articles published in industry publications. To reach her, call 216.262.8776; email [email protected].