Fourth Amendment Rights in a Storage Unit Obtained Using a Stolen Identity

Today the Tenth Circuit handed down a very interesting Fourth Amendment decision, United States v. Johnson, on whether an individual can have a reasonable expectation of privacy in a storage unit rented with a stolen identity.

As I understand the facts of the case, the defendant Johnson asked his girlfriend to rent a storage unit using a fake name where he could store his guns. Johnson and his girlfriend had possession of the driver’s license of a woman named Haroldsen — the license had been stolen in a burglary, perhaps, although not necessarily, by Johnson — and Johnson asked his girlfriend to use Haroldsen’s license to rent the storage unit. (Presumably the idea was that this would make it difficult to connect the stored items with Johnson.) Johnson’s girlfriend went to the storage business posed as Haroldsen, and she paid cash to rent the unit. The police ended up searching the storage unit without a warrant and they found Johnson’s guns. Johnson admitted that he had stored his guns there, leading to charges that Johnson was a felon in possession of the guns.

The question in the case was whether Johnson had Fourth Amendment rights in the storage unit given that the unit had been obtained using Haroldsen’s stolen identity. In an opinion by Judge Ebel, the Tenth Circuit ruled that Johnson did not have Fourth Amendment rights in the unit because Johnson had directed his girlfriend “to enter into the rental agreement using Haroldsen’s stolen identity.” The opinion begins with a rather enjoyable discussion of the nature of the reasonable expectation of privacy test, and it then focuses on the fact that Johnson obtained the rental unit by via unlawful identity theft. The court concludes that this fraud in the obtaining of the unit diminishes the reasonableness of an expectation of privacy in the unit much like occurs with the contents of stolen property, and thus Johnson had no Fourth Amendment rights in the contents of the unit.

This was a really hard case, I think, and the court was right to recognize that there are no clearly correct answers here. Johnson is a subset of a specific kind of Fourth Amendment problem that has long befuddled the lower courts, especially as there is virtually no guidance on the issue from the Supreme Court. The question is, what kind of relationship does a person need over rented or borrowed physical property to establish Fourth Amendment in their contents? Specifically, when the owner of the property rents out the property subject to some limitation that is breached, does that breach eliminate the Fourth Amendment protection in the property?

This issue arises all the time with rental cars, and there is currently a circuit split on it and a pending cert petition that I’ve been following (as well as a recent petition that I helped with that was recently denied). In the car rental cases, A goes to the rental company and rents a car. The contract says that A is the only authorized driver of the car. A nonetheless lets B drive the car, and B is driving the car when the cops stop him and search the car without a warrant or probable cause. The question, then, is whether B has Fourth Amendment rights in the car. Some circuits say no, as he is an unauthorized driver who is driving in violation of the rental agreement. Other circuits say yes, as the legitimate renter gave him permission to drive the car.

The rental car question is hard under existing Fourth Amendment law because the Supreme Court has never answered how breach of rental agreements or other fraud in the obtaining or use of rented property eliminates Fourth Amendment rights. I see today’s decision in Johnson as a close cousin that raises the same basic principle. The Supreme Court will have to deal with these questions eventually, as they come up all the time. But right now the lower courts don’t have clear principles to guide them.