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.
The Volokh Conspiracy » Blog Archive » Our Own Orin Kerr Cited Five Times by Tenth Circuit Decision says:
[...] the one that Orin discusses below, but he was too modest to note the court’s reliance on his own work. Categories: [...]
October 28, 2009, 1:44 amOff Kilter says:
Would one lose one’s 4th amendment expectations if one rented the storage locker using a nom de plume?
October 28, 2009, 1:44 amMike McDougal says:
The court seems to use a lot of questionable arguments to get to its conclusion. Examples:
How could Haroldsen possibly consent to the search of something over which she had no responsibility or control?
Nonsense. When some unkown person calls you up asking about a storage unit you know nothing about, you don’t drop by with a few of your best cop friends and check it out. You tell them you don’t know what the hell they’re talking about.
October 28, 2009, 2:29 amgwinje says:
What happens if my older brother lends me his ID on prom night, I decide a night at the Holiday Inn is in order, leave for dinner, and get back to the cops holding my weed after having searched the hotel room with no warrant?
What if [same thing but with a rental car and I get pulled over]?
Hoo’s aboot if they were married, he didn’t steal the ID and didn’t know she used it?
Very interesting. I’d read the hell out of a longer post on your thoughts on the issue (rather than an addendum to a post about a specific case). Where are the splits? Over the “scale” of the fraud (i.e. smoking in your rental car (and knowing you were gonna smoke when you signed the contracts) v. stealing an ID to rent a storage unit)? Is there a lessened expectation of privacy or none? This seems sort of “terms of use” related. Could the MySpace issues get solved along with this issue by some perfect case and brilliant opinion?
October 28, 2009, 3:33 amCash says:
So a teenager who borrows his brother’s or father’s jacket without permission is subject to being frisked by the cops?
October 28, 2009, 8:51 ampmorem says:
The officers’ theory seems to be that the owner of the stolen property (the identity) retains ownership of it. This is not the arguement put forth in the case.
Instead of a rental car, I see this as being more like a stolen car, where the owner would have full rights to allow search of the car.
As a matter of policy, I think I like the theory.
October 28, 2009, 9:26 amAultimer says:
No. Only if the wearer picked up the jacket from the drycleaners’ without a power of attorney from the owner. The acquisition of the searched property under false pretenses is critical under the court’s reasoning.
October 28, 2009, 9:42 amCash says:
Ok, Brother tells me not to wear his jacket. I do it anyway. How is that different from any other false pretense?
October 28, 2009, 10:59 amCash says:
Ok, Bother tells me not to wear his jacket. I do it anyway. How is that different from any other false pretense?
October 28, 2009, 10:59 ampmorem says:
Cash,
To bring your scenario in line with this case, your brother would have to at least affirm that the jacket was stolen (as a criminal act) and authorize the search of his jacket.
October 28, 2009, 11:34 amSandy MacHoots says:
There are some hard potential questions here, but this case seems easy. The defendant took significant steps to tell the entire world that he had nothing to do with this storage unit, and he did so to ensure that whatever might be found in the unit could not be linked to him. Once you’ve told the whole world that nothing in the unit is yours, I don’t see how you have any reasonable claim that you had a privacy interest in it.
October 28, 2009, 12:19 pmShelbyC says:
Fine. I steal a jacket off a hook in a restaurant. Two years later, the cops conduct an illegal search and find contraband. Admissible?
October 28, 2009, 12:25 pmpmorem says:
ShelbyC
Did you bother reading the decision?
Part of the court’s logic was that property (the identity) was demonstrably stolen.
Another part of the decision was that the verifiable owner consented to the search.
I don’t see how you’re going to get either of those two conditions to apply to your hypothetical. Try again with a hypo that resembles the case.
October 28, 2009, 12:39 pmShelbyC says:
Well, he concealed his possession of the unit, but that’s consistant with a privacy interest. You wouldn’t argue that he wouldn’t have a privacy interest if he’d done the same thing, but legitimately, correct? Say he had the gf rent the locker under her own name to conceal evidence of embarrassing but legal activity?
October 28, 2009, 12:40 pmTom Gunn says:
So a guy takes extraordinary steps to protect his privacy and has that privacy breached due to the manner he chose to protect it?
That name up there is an alias.
Can some REAL Tom Gunn come along now and claim that is not he and get the cops to search for an impostor sans a warrant?
Seems to me the cops should have determined the true owner of the storage space before searching without a warrant
Why not get a warrant if there is good reason – seems a simple to accomplish requirement.
October 28, 2009, 1:11 pmSandy MacHoots says:
Good question. If I took steps to make sure that nobody knew I had any connection to the property, I don’t see why I can suddenly come up with a claim that it really is my property. I don’t see why you should get to have it both ways. If you trick the world into thinking it’s not yours, why should the world have to respect your ownership rights?
October 28, 2009, 1:29 pmModa says:
It seems to me that this should enhance the reasonableness of his expectation of privacy.
October 28, 2009, 1:39 pmjackseattle says:
How handy. A crime-fraud exception swallow the 4th Amendment. This fetish with ownership confuses the analysis – was there a reasonable expectation of privacy in the area/item that was searched w/o a warrant?
October 28, 2009, 1:39 pmLoboSolo says:
So if A buys property with under a fake identity, does that mean that the cops can search the house on that property without a warrant?
As for the storage unit, if the person who rented the unit gives consent, I don’t see a problem. If I store my stuff in my girlfriends unit and she allows the police to search and they find something illegal in my stuff, I don’t have an argument … or do I?
October 28, 2009, 1:56 pmShelbyC says:
You made both of those points in your 1st comment, but you can sure see stuff in the decision that I can’t see.
1. Assume for the hypo both cases, that a) the cops know the jacket is stolen before the search, and b) the cops find out after the search. Why does that matter? (except for the good-faith exception)
2. Why does it matter what the owner did? He can’t waive my 4A rights, and I can’t assert his.
October 28, 2009, 2:11 pmShelbyC says:
Why shouldn’t they? It’s certainly possible, especially with embarassing material, that I could want to retain property rights to something, but not want anyone to know it. And in this case the defendant didn’t try to abandon the property or anything. He made sure the world knew that somebody owned it, he just didn’t want anyone to know it was his.
And btw, if you lay on a towel your machoots won’t get sandy :-).
October 28, 2009, 2:19 pmDavid Nieporent says:
I don’t understand how keeping something private somehow costs you your rights. What’s the “both ways”?
Perhaps you’re trying to make some sort of analog of a judicial estoppel type argument, where you can’t take contrary positions to ones you prevailed on before? If you tell the police, “This isn’t mine,” and they search it, you can’t then say, “Tricked you, it was mine, and you searched it without a warrant, so it’s excluded”? Maybe that’s your argument? But here he didn’t affirmatively deny to the police that it was his; he simply kept his ownership secret. (It’s not as if it’s legal for police to search third parties’ storage units without warrants; it’s just that the remedy isn’t necessarily exclusion.)
October 28, 2009, 5:27 pmMark Horning says:
It seems to me that it is self evident that a storage location, which generally has a padlock on it, has an expectation of privacy, regardless of the details of how it was rented.
Certainly a judge can issue a warrant to search storage container #1234 at ABC storage if he wants to. Renting the unit under a stolen identity does not pose an impediment to issuing a warrant.
October 28, 2009, 5:36 pmHarryEagar says:
Does anybody think the reasoning here applies to numbered Swiss bank accounts?
October 28, 2009, 6:00 pmShelbyC says:
Interesting scenario. Is the evidence excluded? Seems like it should be, but I sure wouldn’t want to be in front of Roberts with that one.
October 28, 2009, 6:18 pmAlexia says:
I’m not involved with the law at all, which is probably painfully obvious to most of you, but I could argue that he had a higher expectation of privacy because the unit wasn’t easily connected to him. Not saying he should have had it, but I can see him thinking that they’d never be able to get a warrant to open the unit because it was in the name of a person totally unrelated to the case.
October 28, 2009, 6:40 pmjccamp says:
Shelby –
If the police know the jacket is stolen, they have to right – indeed, the obligation – to seize it when and where they discover it, and retain it for the true owner. The police cannot reasonably be expected to seize items and then not inventory them before storing them. As examples, the (old) items may contain other items of value, and the police have the right to protect themselves against accusations of theft. Or there may be something dangerous within, and, as you note, there may be evidence of other crimes within. it is established law that a person can have no expectation of privacy within something he/she obtained via theft or fraud.
In the Utah case cited, the act of renting the storage unit using stolen identification is a crime of Utah’s fraud laws.
In the second instance you ask about, if the police search the jacket without a legal basis before they discover its nature as contraband, they could conceivably argue the new evidence would have been inevitably discovered when they discovered the jacket was stolen, and so the timing of the seizure of the new evidence was immaterial. That argument may or may not work, and a prosecutor may or may not decide to try it. It would probably depend on how significant the suspect was in terms of past conduct and perceived future threat, for instance.
October 28, 2009, 7:10 pmSandy MacHoots says:
That’s one of the traditional problem with the “reasonable expectation of privacy” test. If the Government announced that from now on it would search all public storage units without a warrant, no one would have a “reasonable expectation” of privacy because they would know such units could be searched. I don’t read a lot of fourth amendment stuff, but I’ve always thought that this was a very awkward test to apply to what often seems to be something other than an inquiry into what people would actually “expect.”
Sorry if I was unclear, but yes, that’s the gist of my argument. When you’ve effectively said, “this stuff isn’t mine,” why should the courts now allow you to come in and claim that it is yours and your rights were violated?
October 28, 2009, 9:49 pmjccamp says:
Mark –
“It seems to me that it is self evident that a storage location, which generally has a padlock on it, has an expectation of privacy, regardless of the details of how it was rented.”
The contract between storage owner and renter was fraudulent and void (by state law). The storage owner almost certainly had some clause within the contract that allowed him/her/the company to force open the locker and remove any items stored within if the bill wasn’t paid, if the contract contained false or fraudulent info, etc. If you place items within a storage space and sign a contract that essentially voids your expectation of privacy if you commit certain acts or fail to commit certain act spelled out in the contract, you have no complaints when you do exactly those things (which void your privacy rights in effect) as spelled out in the contract.
In this case, the police had the real Mrs X (the stolen identity) come down and give permission to open to locker. They probably could have done just as well as giving the storage owner the information and allowing him to open the locker and remove the contents pursuant to contract.
October 28, 2009, 11:04 pmShelbyC says:
@jccamp — thank you. I hadn’t fully thought through scenario #1.
October 28, 2009, 11:52 pmShelbyC says:
Well, its not really like an estopple type thing. The govt sure isn’t disputing that the locker is his.
October 28, 2009, 11:56 pmjccamp says:
Shelby -
No problem. As for #2, it’s much more dicey. You’d be asserting that the cops clearly violated 4th A rights, but arguing inevitable discovery. That’s not an experience many prosecutors would enjoy (nor many cops either). Unless the case was pretty important, I suspect the decision would be not to fight suppression of the evidence. Even if the evidence was ultimately admitted – far from certain – there would probably be some uncomfortable moments deriving from the bench, so to speak, when the judge addressed the admitted rights violation.
October 29, 2009, 12:03 amArthurKirkland says:
I miss the days when the prosecution of Scooter Libby turned conservatives into forceful proponents of procedural safeguards and ardent supporters of Constitutional rights. I knew it wouldn’t last, but I can’t help but reminisce . . .
October 29, 2009, 10:27 amcjwynes says:
Does anybody have a link to the cert petition? I’m trying to find out what the circuit split lineup is, and where my circuit (8th) stands on this. If I can let the troopers search rental cars when there’s an unauthorized driver, w/o implicating the 4th amendment, that could really help our drug enforcement efforts.
October 29, 2009, 10:28 amShelbyC says:
Now hold the phone on this part. Imagine I rent an appartment using a forged letter of employment. You’re saying that I have no expectation of privacy?
October 29, 2009, 12:02 pmjccamp says:
Shelby -
Sorry, I missed the last post. Haven’t been back for a few days. I’m having to speculate here, because the devil’s in the details (of the contract, applicable law, etc), but if the rental agreement for the apartment allows the owner to invalidate the contract and remove your items because of the forged letter, then I don’t see how you could have an expectation of privacy, since you willfully took actions that you knew would invalidate the contract. However, an apartment, because it is a domicile, may have a much higher protection that a car or a storage locker, and local law may require an eviction process before the owner could reclaim his/her apartment. A better analogy might be a hotel room, which is much closer to a rental car.
In other similar examples, the requirement for an eviction process may not apply under some circumstances, such as using a completely fictitious identity, or using the premises for a criminal enterprise. But I would think that in your specific example, as long as you paid the rent, then using a phony proof of employment might be grounds for terminating the lease agreement and evicting you, but not arbitrarily entering and removing your property, at least until the order for eviction was approved.
Just think as a generality, if the owner can immediately reclaim his/her property because of some action on your part, or because you have no right to possess the property in the first place, then you can’t very well have an expectation of privacy, assuming you were aware of the circumstances.
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September 9, 2010, 9:16 am