United States v. Kenyon Walton , 763 F.3d 655 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1177
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENYON R. WALTON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12-cr-30266-MJR-1 — Michael J. Reagan, Judge.
____________________
ARGUED MAY 28, 2014 — DECIDED AUGUST 13, 2014
____________________
Before FLAUM, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Kenyon Walton appeals the district
court’s denial of his motion to suppress for lack of Fourth
Amendment standing. For the reasons explained below, we
conclude that Walton’s alleged illegal acts did not deprive
him the opportunity to vindicate his privacy interests
against a government search and seizure of his rental vehi-
cle. We therefore reverse the district court’s decision and
remand for further proceedings.
2 No. 14-1177
I. Background
On August 29, 2012, Walton was a passenger in a rented
Chevrolet Suburban driven by his companion, Darrallyn
Smoot, when the pair was pulled over on an interstate
highway for a traffic stop by a state trooper in Madison
County, Illinois. According to the trooper, Walton and
Smoot were nervous, their breath heavy and their hands
shaking, and they gave a confusing and implausible descrip-
tion of their travel plans. In particular, they apparently failed
to pack any luggage for their supposed trip. Having become
suspicious of the two, the trooper decided to extend the stop
for approximately twenty minutes so that a police canine
could smell around the car. The dog allegedly alerted while
sniffing around the Suburban, and troopers then searched
the vehicle and found seven kilograms of cocaine hidden in
the back.
This was not Walton’s first brush with the law. In fact, at
the time of the stop he was on parole in Kentucky, and one
of the terms of his release was that he could not leave that
state without his parole officer’s permission. He was also
subject to regular searches by his parole officer. However,
the Illinois state trooper who stopped and searched the Sub-
urban did not yet know Walton was on parole.
Walton 1 was indicted in the Southern District of Illinois
for possession with intent to distribute cocaine. He filed a
motion to suppress the narcotics found in the Suburban. In
opposition, the government argued that Walton lacked
standing to challenge the search and seizure of the rental car
for two reasons: first, he had violated his parole by leaving
1 Smoot was also indicted, but her case is not part of this appeal.
No. 14-1177 3
Kentucky without notifying his parole officer; and second,
he lacked a reasonable expectation of privacy in the Subur-
ban. 2
As to the first point, the government argued that because
Walton was on parole and violated the terms of his release
by leaving the state, he had a diminished privacy interest. It
suggested that Walton could not have had a subjective ex-
pectation of privacy while he knew he was violating his pa-
role. He should have known that he was subject to a search,
and arrest, if he were found outside the state without his pa-
role officer’s permission.
In support of its second argument, the government pro-
vided evidence that Walton’s rental agreement with Dollar
Rent-A-Car, which authorized him to drive the Suburban,
required that he have a valid license. Then the government
entered two pieces of evidence to demonstrate that Walton’s
Ohio driver’s license was suspended at the time of his arrest:
(1) an email, dated October 30, 2012 and sent by the Illinois
state trooper who stopped Walton, which purported to relay
a state record of Walton’s Ohio license status showing that it
was suspended; and (2) a traffic ticket for improper signal-
ing that Walton received in Kansas, in which a highway pa-
trolman indicated that Walton was driving with a suspend-
ed license. The ticket is dated August 28, 2012—the very
same day that Walton rented the Suburban, and the day be-
fore he was arrested.
Based on this evidence, the government argued that Wal-
ton had violated both the rental agreement that authorized
2 The government also defended the reasonableness of the search and
seizure, but that issue is not relevant to this appeal.
4 No. 14-1177
him to possess the car, and the rules by which the state of
Ohio had issued him a license to drive it. As such, the gov-
ernment argued that Walton lacked a legitimate expectation
of privacy in the Suburban. It primarily relied on two cases,
United States v. Haywood, 324 F.3d 514 (7th Cir. 2003), and
United States v. Figueroa-Espana, 511 F.3d 696 (7th Cir. 2007),
for the proposition that the unauthorized, unlicensed driver
of a rental car lacked standing to challenge a search of the
vehicle.
The district court held a hearing on Walton’s motion to
suppress. There, Walton for the first time argued that he had
a valid license on the day of his arrest, and that any record of
his license being suspended was a mistake. He did not pro-
vide any evidence for that assertion, however, and did not
dispute the government’s evidence that his license was sus-
pended. The district court denied Walton’s motion to sup-
press due to lack of standing. The court found that Walton
lacked a subjective expectation of privacy because he knew
he was in violation of his parole simply by being in Illinois.
It also concluded that Walton lacked an objective expectation
of privacy in the Suburban because he rented it without a
valid license, in violation of the rental agreement.
Walton moved for reconsideration, and this time offered
evidence in support of his cause. He provided a document
discussing the conditions of his parole in Kentucky. Walton
argued that he was subject to search only by his parole of-
ficer, not by a law-enforcement officer who was ignorant of
his parole status. He also offered two records indicating that
his license was valid at the time of his arrest. First, he pro-
duced a printout of an official Kentucky record indicating
that his license was transferred to Ohio and was, as of that
No. 14-1177 5
time, still valid. Second, he provided an official Ohio abstract
of his driving record, which documented five driving “con-
victions” he had received while possessing an Ohio’s driv-
er’s license, but nevertheless indicated that his driver’s li-
cense was valid “as of 6/26/2013”—a year after the car search
and his arrest. Walton noted that this abstract, which record-
ed incidents before his arrest, did not indicate that his license
had been suspended at any point.
The district court denied Walton’s motion for reconsider-
ation. It reasoned that Walton’s evidence established only
that he had a valid Ohio license as of June 26, 2013, but that
he could not show that he had a valid license on August 29,
2012, when he was arrested. His evidence could not rebut
the government’s proof that his license was suspended on
the relevant date. Because Walton bore the burden of show-
ing he had standing to challenge the search and seizure, the
district court declined to reconsider its decision.
Walton then entered into a conditional guilty plea,
whereby he reserved the right to challenge the denial of his
suppression motion. He now appeals to this court.
II. Discussion
In reviewing a district court’s decision on a motion to
suppress, this court reviews its findings of fact for clear error
and its legal conclusions de novo. United States v. Peters, 743
F.3d 1113, 1116 (7th Cir. 2014). The question of Fourth
Amendment standing is “one involving the substantive
question of whether or not the proponent of the motion to
suppress has had his own Fourth Amendment rights in-
fringed by the search and seizure which he seeks to chal-
lenge.” Rakas v. Illinois, 439 U.S. 128, 133 (1978). To have
6 No. 14-1177
standing to challenge the search and seizure in this case,
Walton bears the burden of establishing that he had both a
subjective and an objectively reasonable expectation of pri-
vacy. United States v. Walker, 237 F.3d 845, 849 (7th Cir. 2001).
An objective expectation of privacy is one that “that society
is prepared to recognize as ‘reasonable.’” Katz v. United
States, 389 U.S. 347, 361 (1967). The subjective prong of the
expectations analysis presents a fact-specific inquiry that
looks “to the individual[‘s] affirmative steps to conceal and
keep private whatever item was the subject of the search.”
United States v. Yang, 478 F.3d 832, 835 (7th Cir. 2007).
We now must apply these principles to determine
whether the district court clearly erred in determining that
Walton did not have a valid license on the day of the search,
and if not, whether Walton nevertheless had standing to
challenge the search and seizure.
A. Walton’s License
This factual question is very murky. The government
provides only two pieces of evidence indicating that Wal-
ton’s license was suspended, and neither one is conclusive.
First, the government points to an email from the Illinois
state trooper who pulled the Suburban over, in which the
trooper observes that Walton’s license was “SUSPENDED in
Ohio.” But that email is dated October 30, 2012, and nothing
in the purported driver’s record indicates that Walton’s li-
cense was suspended in August of 2012, when he was ar-
rested. Indeed, the only date on the record appears to be
“10/30/12”—the same date as the email. The email does not
state that Walton’s license was suspended on the relevant
date.
No. 14-1177 7
The government’s second piece of evidence is stronger,
but still indirect. It consists of a ticket written by a Kansas
highway patrolman, which has a check mark by the printed
term, “Driver’s license” and a written description of “other
violations” that reads, “D.L. suspended.” This ticket was
dated August 28, 2012, at 9:00 p.m.—the night before the
search of the Suburban and Walton’s arrest. It is made out to
a “Kenyon R. Walton,” but it lists an address different from
that identified in the state trooper’s email discussed above.
How the ticket was resolved is unknown, but it is unlikely
Walton had an opportunity to challenge it after his arrest the
following day.
As we have seen, Walton provided two pieces of evi-
dence of his own. 3 A record from Kentucky shows that his
driver’s license had been transferred from that state to Ohio
at some point. The record notes his Kentucky license had
been suspended at one time, but his driving privileges were
restored as of April 4, 2012. The Kentucky license, up to the
point it was transferred to Ohio, was “in force.” The second
piece of evidence is an “abstract” of Walton’s driving record
in Ohio. The record reflects that the Ohio driver’s license
was issued on July 30, 2012. The abstract also purports to list
Walton’s traffic “Convictions.” It lists five total offenses, but
it does not state that Walton’s license was ever suspended.
The abstract states that his license “as of 6/26/2013” is “val-
id.”
3 Although Walton belatedly introduced this evidence with his motion
for reconsideration, the district court considered it, and the government
does not argue that the court erred in doing so. And as it turns out, Wal-
ton’s evidence will have no bearing on our decision.
8 No. 14-1177
Walton argues that the district court clearly erred by fail-
ing to infer that his license was not suspended because no
suspension was listed on the Ohio abstract. The problem
with this argument is that it is entirely unclear whether the
abstract would list a suspension. The applicable Ohio statute
provides that “the registrar of motor vehicles shall search
and furnish a certified abstract of the following information
with respect to any person: (1) An enumeration of the motor
vehicle accidents in which such person has been involved …
[and] (2) Such person's record of convictions for violation of
the motor vehicle laws.” Ohio Rev. Code Ann. § 4509.05.
This statute makes no mention of recording whether a li-
cense has been suspended. Sections 4509.31–40 and Chapter
4510 deal with suspensions of licenses, but they do not indi-
cate that a suspension is to be listed on the abstract.
Without the assumption that the abstract would list any
past suspensions, all the document shows is that Walton’s
license was valid as of June 26, 2013. It is certainly possible
that the license could have been suspended for, to take an
example, three months, including August 28, 2012, and still
be valid in 2013. See id. § 4510.02(B)(5) (providing for a Class
E suspension lasting three months). And because Walton
was arrested on August 29, 2012, it is unlikely that he com-
mitted an infraction afterward that would have caused his
driver’s license to be suspended as of October of 2012, the
date of the state trooper’s email record. Perhaps Ohio belat-
edly suspended his license in October for an earlier infrac-
tion, but that is pure speculation.
Of course, the government’s evidence is not much
stronger. The state trooper’s email indicates only that Wal-
ton’s license was suspended on October 30, 2012. The Kansas
No. 14-1177 9
ticket is the most chronologically precise evidence, but it is
second-hand, based on the observations of a highway pa-
trolman and not challenged in any adversarial legal proceed-
ing. It is also unclear why, if Walton was driving with a sus-
pended license, the patrolman let him go with just a ticket.
The government asserts that, upon receiving the ticket, Wal-
ton let his companion Smoot drive. Letting Smoot drive
would have violated Walton’s rental agreement because she
was not an authorized driver, but the Kansas patrolman may
not have known that.
Another awkward problem for the government is that
Walton successfully rented a car with his license; his Ohio
license number is on the rental paperwork. The Dollar Rent-
A-Car rental agreement clearly states that a driver must
“warrant” that he possesses “a valid driver’s license.” This is
significant proof that Walton did have a valid license, and
the district court was not able to square this circle: “[T]he
Court is unsure as to how Walton was able to enter into a
rental agreement with Dollar Rent-A-Car without a valid li-
cense.”
In light of the paucity of evidence either way, we cannot
be confident that the district court committed clear error.
And in any event, Walton bore the burden of establishing
that he had standing, and we doubt that he has met that
burden. Because we can resolve the standing issue regard-
less of whether Walton’s license was valid, we may safely
assume for present purposes that the government is correct
that his license was suspended.
10 No. 14-1177
B. Standing
The government argues that Walton lacks standing to
challenge the search and seizure because he violated his pa-
role and because he did not possess a valid driver’s license.
We deal with those arguments in turn.
1. Expectation of Privacy as a Parolee
The government rightly points out that Walton’s expecta-
tion of privacy was reduced due to the fact he was a parolee.
But the Supreme Court has expressly declined to hold that a
parolee categorically has no expectation of privacy in any
context. See Samson v. California, 547 U.S. 843, 850 n.2 (2006)
(“Nor . . . do we equate parolees with prisoners for the pur-
pose of concluding that parolees, like prisoners, have no
Fourth Amendment rights. That view misperceives our
holding. If that were the basis of our holding, … there would
have been no cause to resort to Fourth Amendment analy-
sis.”) (internal citations omitted); United States v. Williams,
702 F. Supp. 2d 1021, 1029 (N.D. Ill. 2010) (“[T]he Court [in
Samson] specifically explained in the opinion that it was not
concluding that parolees have no expectation of privacy.”).
Samson did hold that, under California’s parole system, a
suspicionless search of the petitioner in that case did not vio-
late the Fourth Amendment. But the Court never held that
the petitioner or any other parolee lacked standing to chal-
lenge a search. Indeed, as the Court observed, the Fourth
Amendment analysis conducted in the opinion would have
been unnecessary had the petitioner lacked standing.
Possibly anticipating that problem, the government as-
serts that Walton lacked a subjective expectation of privacy
because he knew that he was violating parole by leaving
No. 14-1177 11
Kentucky without permission, and that he therefore knew he
was subject to being stopped and searched at any time. But
that modification does little to limit the breadth of the gov-
ernment’s position. Its rule would still deny virtually any
parolee standing to challenge a search. After all, if a parolee
seeks to suppress evidence of a parole search, it will almost
always be the case that the government found evidence of
illegal activity, known to the parolee, that would violate the
conditions of parole. Under the government’s proposed re-
gime, any parole search that uncovered a violation, even if it
were conducted at random and based on no suspicion what-
soever, would escape Fourth Amendment scrutiny entirely if
the parolee subjectively knew that she was violating parole.
The government does not cite a single case for that astonish-
ing proposition, because there is none. In fact, the Third Cir-
cuit has held that a parolee has an expectation of privacy in a
car even if he is driving without a license in violation of the
conditions of his parole. See United States v. Baker, 221 F.3d
438, 440, 443 (3d Cir. 2000). Society is prepared to accept that
parolees have an expectation of privacy, even if they are up
to no good. Samson does teach that a suspicionless search of
a parolee may, under the “totality of the circumstances,” be
reasonable. 547 U.S. at 852. But it does not deprive a defend-
ant of a chance to challenge the reasonableness of the search.
Walton’s behavior is also entirely consistent with his sub-
jective belief that he had a reasonable expectation of privacy
in the vehicle despite his parole violation. He rented the ve-
hicle alone, with himself listed as the only authorized driver.
The fact that he transported a passenger with him and let her
drive a portion of his journey is not evidence that he thought
the car was open to public scrutiny and search. See Walker,
237 F.3d at 848–49 (an authorized driver of a rental car can
12 No. 14-1177
object to a search of the car “and its occupants.”). Walton’s
subjective expectation of privacy was not defeated by his
knowing parole violation.
2. Expectation of Privacy in a Rental Car
a) Legal Background
In Walker we held that “a person listed on a rental
agreement as an authorized driver has a protected Fourth
Amendment interest in the vehicle and may challenge a
search of the rental vehicle.” 237 F.3d at 849. Indeed, “[a]
person listed as an approved driver on a rental agreement
has an objective expectation of privacy in the vehicle due to
his possessory and property interest in the vehicle.” Id. That
is a very clear statement, presented without qualification, in
support of Walton’s position. In that case we held that
Walker had standing to challenge a search of a rental car that
uncovered a firearm and drugs on a passenger. Id. at 848-49.
Our ruling did not state whether or not Walker had a valid
license, and it does not indicate that the status of the license
would have influenced the analysis. We simply stated that
“a person listed on a rental agreement as an authorized
driver” had Fourth Amendment standing. We must there-
fore decide whether the suspended license distinguishes this
case from Walker.
The government, by contrast, wants to resolve this ap-
peal under an expansive reading of Haywood. In that case,
the defendant was not an authorized driver of the rental car
that was searched, and he also drove the car with a revoked
license. We readily concluded that Haywood lacked stand-
ing to challenge a search of the rented car:
No. 14-1177 13
Haywood was not simply an unauthor-
ized driver, he was also an unlicenced
one. Haywood should not have been
driving any car, much less a rental car
that Enterprise never would have given
him permission to drive. As a result,
Haywood's expectation of privacy was
not reasonable.
324 F.3d at 516. The government cites the case for the propo-
sition that “an unlicensed and unauthorized driver does not
have standing to contest the search of a rental car.” Appel-
lee’s Br. at 14. But of course, Walton was the authorized
driver listed under the rental agreement. The Haywood court
necessarily relied on both the fact that Haywood was unau-
thorized, and the fact that he was an unlicensed driver. Wal-
ton’s authorization to drive the rental car distinguishes this
case from Haywood.
The district court also cited Figueroa-Espana, 511 F.3d at703–04. In that case the court found that “[i]n addition to be-
ing an unauthorized driver, Figueroa–Espana failed to pro-
duce a valid driver’s license to either trooper. He should not
have been driving any vehicle, let alone a truck of dubious
origins, and therefore his objective expectation of privacy in
the truck was neither legitimate nor reasonable.” Id. at 704.
Again, we noted that the defendant had failed to establish he
was authorized to drive the vehicle. The court believed that
the question of authorization was unclear, and that the de-
fendant had failed to satisfy his burden of establishing
standing. That case is therefore also distinguishable.
It is also important to note that all three of the above cas-
es—Haywood, Figueroa-Espana, and Walker—left open the
14 No. 14-1177
question of whether an unauthorized, but properly licensed,
driver of a rental car enjoys standing to challenge a search of
the vehicle. See Haywood, 324 F.3d at 516 (“[W]e have not ad-
dressed the [standing] question with respect to an unauthor-
ized driver.”). To frame the matter more systematically,
Walker established that an authorized, (presumably) licensed
driver of a rental car had standing. In Haywood and Figueroa-
Espana, we concluded that an unauthorized, unlicensed
driver lacked standing. The question of whether an unau-
thorized, properly licensed driver of a rental car enjoys
standing remains undecided, and we also leave that issue for
another day. Finally, this case presents the new, and hope-
fully rare, instance in which a defendant somehow manages
to become the authorized driver of a rental car without hav-
ing a valid license. We present this information in chart form
for convenience.
Licensed Unlicensed
Authorized Standing Walton’s
case
Unauthor- Undecided No standing
ized
Some of our sister circuits have touched upon the specific
license issue in this case. The Eighth Circuit recognized the
standing of a defendant who drove a rental car with a sus-
pended license. See United States v. Best, 135 F.3d 1223, 1225
(8th Cir. 1998) (an unauthorized driver of a rental car with
an invalid license would have standing if he had the author-
ized driver’s permission to use the car). So has the Ninth
Circuit. United States v. Thomas, 447 F.3d 1191, 1195–96 (9th
No. 14-1177 15
Cir. 2006) (same). But both these decisions also grant stand-
ing to a defendant not named on the rental agreement if she
has permission from the authorized driver, a situation that
we have not decided. On the other hand, courts that deny
standing to unauthorized drivers typically do so without
considering whether the driver has a valid license. See United
States v. Wellons, 32 F.3d 117 (4th Cir. 1994); United States v.
Roper, 918 F.2d 885 (10th Cir. 1990); United States v. McCulley,
673 F.2d 346 (11th Cir. 1982). The Sixth Circuit is unique in
considering possession of a valid license as one factor in the
standing analysis. United States v. Smith, 263 F.3d 571, 586
(6th Cir. 2001). In Smith the court granted standing where
the driver was unauthorized, but had a valid license. This
case involves a driver with no valid license, but who was au-
thorized. In short, decisions of our fellow circuits are con-
flicting and of limited help in this very peculiar case.
b) Haywood and Figueroa-Espana
In urging that Haywood and Figueroa-Espana are disposi-
tive, the government must read these two cases for a broad
principle. One possible reading comes from the language
that appears in both opinions. Hayward observed that, due to
his suspended license, “Haywood should not have been
driving any car.” 324 F.3d at 516. Likewise, Figueroa-Espana
stated that the defendant “should not have been driving any
vehicle.” 511 F.3d at 704. This language points to two possi-
ble readings of these cases, either of which, if valid, would
require an affirmance.
First, perhaps Hayward and Figueroa-Espana stand for the
proposition that a driver with an invalid license loses an ex-
pectation of privacy in any car. After all, driving without a
license is illegal. But that principle cannot be correct. A driv-
16 No. 14-1177
er of a car does not lose all Fourth Amendment protections
simply because his license is invalid. See United States v. Grif-
fin, 729 F.2d 475, 480, 483 n.11 (7th Cir. 1984) (a driver lack-
ing a valid license “had standing to claim that the inventory
search of the 1982 Corvette violated [his] privacy rights”);
United States v. Fiala, 929 F.2d 285, 287 n.1 (7th Cir. 1991) (a
driver whose license was suspended “may properly chal-
lenge the constitutionality of [a] traffic stop”). The opposite
principle would lead to absurd results. Courts do not resolve
car search cases in which the driver has a suspended license
by omitting the Fourth Amendment analysis and simply
concluding the driver lacks standing. In Arizona v. Gant, 556
U.S. 332 (2009), the defendant was arrested for driving with
a suspended license, and his car was searched. If it were true
that a suspended license stripped a driver of Fourth
Amendment standing, Gant would have been an easy stand-
ing case. Instead, the Court proceeded to conduct a Fourth
Amendment analysis as to whether the search was reasona-
ble. Although we must take care not to mistake the Court’s
silence for its view of substantive Fourth Amendment law,
we of course have long followed the same practice in our de-
cisions. See, e.g., United States v. Balanow, 528 F.2d 923, 924
(7th Cir. 1976) (discussing reasonableness of an impound
search following arrest for driving with a suspended li-
cense). Haywood and Figueroa-Espana cannot be read this
broadly.
The government’s preferred, narrower reading of Hay-
wood and Figueroa-Espana is that, because a license is typical-
ly a prerequisite for renting the car, a driver who lacks a val-
id license has no objective expectation of privacy therein. See
Appellee’s Br. at 14 (“[Walton’s] violations of the terms of
the agreement rendered his possession of the vehicle unau-
No. 14-1177 17
thorized.”). If Walton lacked a valid driver’s license, the ar-
gument goes, he necessarily cannot be an authorized driver
of a rental car. This interpretation was the basis for the dis-
trict court’s ruling:
The fact that Walton had a suspended li-
cense calls into question the “authoriza-
tion” granted to him by Dollar Rent-A-
Car. The Government’s argument is well-
taken that no car rental company would
rent a car to a driver who lacks a valid li-
cense.
But this reading of Haywood and Figueroa-Espana is almost
as problematic. To begin with, it is in tension with the direct
statement in Walker that “a person listed on a rental agree-
ment as an authorized driver has a protected Fourth
Amendment interest in the vehicle and may challenge a
search of the rental vehicle.” 237 F.3d at 849. Walton was the
sole authorized driver listed on the rental agreement. Not
only that, but Dollar handed him the keys and permitted
him to drive the car off the lot. This renders highly dubious
the district court’s assertion that “no car rental company”
would do so. The government’s standing argument relies on
a tension, if not an outright paradox. It insists, with equal
vigor, that Walton had a suspended license and that of
course Dollar Rent-A-Car would never rent him a car with a
suspended license. And yet here we are.
Of course, the most likely explanation—although this is
speculation unsupported by the record—is that Dollar erro-
neously believed that Walton did have a valid license. But it
is unclear how Walton can reasonably be held responsible
for catching the rental company’s oversight. For standing
18 No. 14-1177
purposes, it is typically enough that “the driver is operating
[a] vehicle with the permission of the owner.” Johnson v.
United States, 604 F.3d 1016, 1020 (7th Cir. 2010) (“[A] driver
of a borrowed vehicle may establish a reasonable expecta-
tion of privacy in a vehicle even though that driver is not the
owner of the vehicle” because she “has the right to exclude
others.”). We do not generally ask if the owner was wise to
let the driver borrow the car, or whether the driver operated
the vehicle in a way that violated a private agreement be-
tween the two parties.
The government nevertheless insists that Walton’s defec-
tive license voids any real or apparent authorization ex-
pressed in the rental agreement. It is true that the written
agreement required Walton to “warrant” that he possessed
“a valid driver’s license.” But the same form also provides
that the “[v]ehicle may not be used … for any illegal purpos-
es, or in the commission of a crime.” It warns the driver in
loud print that “ANY PROHIBITED USE OF THE VEHICLE
… WILL VOID” the agreement. Walton therefore clearly
breached the renter’s agreement by transporting seven kilo-
grams of cocaine in the trunk, irrespective of his invalid li-
cense.
The government may happily respond that Walton’s co-
caine transportation is simply another breach of the renter’s
agreement, thus strengthening its argument. But that point
proves too much. If Walton lost his objective expectation of
privacy in the rental car simply because a police search
turned up contraband, then this (again) should have been a
very simple case. He, and any other alleged drug smuggler,
would be unable to challenge a search of a rental car, wheth-
er he had a valid license or not, and whether or not the po-
No. 14-1177 19
lice had any reason to suspect him of wrongdoing. That po-
sition, aside from significantly circumscribing Fourth
Amendment rights, would also contradict the holding in
Walker, where the defendant had standing to challenge a
search that uncovered a gun in the trunk of the rental car, as
well as a search of a passenger that discovered drugs. 237
F.3d at 847, 849. Carrying drugs in the car, as well as a fire-
arm used to facilitate the commission of a drug crime, likely
violated Walker’s rental agreement. (Sadly, Walker is silent
as to which agency supplied the vehicle, and on what terms.)
Our court nevertheless recognized that Walker had stand-
ing. The government’s proposed standing exception—that
drivers have no expectation of privacy in a rental car if they
breach the rental agreement—would swallow the general
rule in Walker.
Admittedly, at least one court has suggested that a driver
abandons any expectation of privacy in a rental car if he
commits illegal activity in violation of the rental agreement.
The defendant in United States v. Boruff, 909 F.2d 111, 117
(5th Cir. 1990), was not authorized to drive the car under the
rental agreement, and this distinguishes his case from Wal-
ton’s. But the court went on to note, as an additional ground
to deny standing, that “[t]he rental agreement also expressly
forbade any use of the vehicle for illegal purposes.” Id. We
do not find this second basis for the decision persuasive, es-
pecially in light of our decision in Walker.
The government’s proposed rule would also lead to other
absurd results. Aside from carrying contraband, another use
of the car prohibited by the rental agreement is to allow it to
be driven “by other than an Authorized Driver.” Walton en-
gaged in this activity by letting Smoot drive. But undoubted-
20 No. 14-1177
ly many drivers violate that term of the agreement, yet they
maintain an expectation of privacy in the car. And the
agreement lists all sorts of other prohibited uses. It violates
the rental agreement to “push or tow anything,” or to en-
gage in any “willful, wanton, or reckless misconduct,” which
includes “carrying passengers in excess of the number of
seat belts in the Vehicle,” “refueling the vehicle with the
wrong type of fuel, i.e. diesel in gasoline engine,” and “fail-
ure to use seat belts.” Many drivers of rental cars must
transgress certain provisions of this rental agreement, yet
they undoubtedly regard the space inside the car as private
while they possess it. An ordinary person would not expect
his rental car to be open to public viewing or police inspec-
tion as a result. Society is willing to recognize a privacy in-
terest in a car even if the driver does not mind her P’s and
Q’s at all times.
One caveat is in order, however. Certain violations of a
rental agreement may be so egregious that society would no
longer be prepared to respect a privacy interest in the car.
For example, if the driver kept the vehicle months beyond its
return date, it would essentially become stolen. A driver of a
stolen car does not have standing to challenge a car search.
United States v. Sholola, 124 F.3d 803, 816 n.14 (7th Cir. 1997).
But a suspended driver’s license is not as severe a lapse. One
would expect Dollar Rent-A-Car to ask the police to recover
a stolen vehicle; by contrast, the agency apparently made in-
sufficient attempts to verify that Walton’s license was valid.
And the Eleventh Circuit has held that, even if a rental car
driver turns in the car a few days late, he nevertheless has an
expectation of privacy in the vehicle. United States v. Cooper,
133 F.3d 1394, 1402 (11th Cir. 1998) (the defendant’s “failure
to call Budget to extend the due date four days may have
No. 14-1177 21
subjected him to civil liability, but it should not foreclose his
ability to raise a Fourth Amendment challenge to [a] search
of the rental car”). This case involves a similarly modest
breach of the rental agreement.
In light of the above discussion, the dicta about “any car”
in Haywood and Figueroa-Espana should be read narrowly.
Those cases pertain only to unauthorized drivers of rental
cars who also lack a valid license. They do not extend to eve-
ry unlicensed driver of a rental car. Just as those decisions
reserved the issue of an unauthorized driver with a valid li-
cense in this circuit, they also did not resolve the issue of an
authorized driver without one.
c) Application to this Case
We conclude that Walton’s lack of a valid driver’s license
did not categorically deprive him of either a subjective or
objectively reasonable expectation of privacy in the rental
car. We now must decide whether the circumstances of this
particular case indicate that Walton in fact had such an ex-
pectation in the rented Suburban. See United States v. Villegas,
495 F.3d 761, 769 n.3 (7th Cir. 2007) (discussing “the fact-
specific inquiry into a reasonable expectation of privacy”).
One of the central distinctions courts have drawn in simi-
lar cases is that between a driver of a car and her passenger.
See Rakas, 439 U.S. at 149; United States v. Price, 54 F.3d 342,
345–46 (7th Cir. 1995). A mere passenger lacks standing be-
cause he cannot prevent the driver or owner of the car from,
for example, picking up random strangers and showing
them the interior of the car. A driver or owner could invite
the police to enter a vehicle, or drive it to the station herself.
A mere passenger has no right to ward off onlookers or pro-
22 No. 14-1177
tect his privacy in a car that he has no power over. Walton,
by contrast, was the sole authorized driver of the car. Dollar
Rent-A-Car authorized him to drive its vehicle, and Walton
used the Suburban in a way that demonstrated he under-
stood it was under his control. He invited Smoot to join him,
but he appears not to have shared the car with anyone else.
It does not matter that the rental agreement was legally de-
fective because of his illegal activities or his breach of a term
in the contract. As a practical matter, he still had the authori-
ty to exclude anyone from the vehicle, and had no reason to
think Dollar had maintained an immediate possessory inter-
est in the Suburban. An objectively reasonable person would
not assume he had immediately lost possession of a rental
car simply by, for example, not wearing his seat belt. Walton
therefore enjoyed both a subjective and an objective expecta-
tion of privacy.
d) The Government’s Remaining Arguments
The government urges us to consider Walton’s knowing
violation of his parole together with the fact that he drove
without a license, and rule that those two circumstances
combined render his expectation of privacy unreasonable.
But we decline to transform two flawed contentions into a
single winning argument, as if through some sort of legal
alchemy. The government is correct that parolees have a re-
duced expectation of privacy, and the absence of a valid li-
cense certainly affects the standing of an unauthorized driv-
er. But those two factors, even considered together, cannot
entirely extinguish Walton’s expectation of privacy as the
authorized driver of his rental car.
At its core, the government’s argument conflates Wal-
ton’s alleged illegal behavior with his expectation of privacy.
No. 14-1177 23
Obviously, one should not rent or drive a car with a sus-
pended license, violate parole, or transport seven kilograms
of cocaine. But if the Fourth Amendment suppression rule
means anything, it must require that the police have a rea-
sonable basis for searching someone other than that—as it
turns out—the search uncovered illegal activity. That protec-
tion is compromised if Walton loses his standing even to
challenge a car search simply because of alleged unlawful
conduct that has nothing to do with his immediate possesso-
ry interest in the vehicle.
III. Conclusion
The government argued before the district court that
Walton’s suppression motion was legally and factually in-
sufficient on its face. And on appeal, the government stated
in its brief that the Illinois state trooper who stopped Walton
did in fact know that he had breached his rental agreement
by driving with a suspended license. We also do not know
whether there was some connection between the Kansas pa-
trolman’s traffic ticket and the Illinois state trooper’s deci-
sion to stop the Suburban a day later. These points go to the
reasonableness of the search and seizure, and have not yet
been adequately presented in the record. The district court
should have the first chance to resolve them, along with any
other argument pertaining to the reasonableness of the stop
and subsequent search. 4 The order denying Walton’s motion
4 In addition to the reasonableness of the search, the duration of the sei-
zure of the vehicle may also be an issue. See Illinois v. Caballes, 543 U.S.
405, 407 (“A seizure that is justified solely by the interest in issuing a
warning ticket to the driver can become unlawful if it is prolong beyond
the time reasonably required to complete that mission.”); Huff v. Reichert,
744 F.3d 999, 1002 (7th Cir. 2014) (affirming denial of qualified immunity
24 No. 14-1177
to suppress is REVERSED, and we REMAND for further
proceedings consistent with this opinion.
to officer who extended traffic stop for thirty-five minutes after issuing a
warning).