United States v. Marcus Dixon

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2427

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARCUS T. DIXON,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 4:21-cr-40020-SLD-JEH-1 — Sara Darrow, Chief Judge.

____________________

ARGUED SEPTEMBER 17, 2024 — DECIDED MAY 7, 2025

____________________

Before EASTERBROOK, HAMILTON, and MALDONADO,

Circuit Judges.

HAMILTON, Circuit Judge. In 2019 defendant-appellant

Marcus Dixon was on supervised release after a federal prison

sentence. The United States Probation Office that was

supervising him obtained a warrant to arrest him based on his

suspected involvement in a hit-and-run accident and drug

dealing. After arresting Dixon, probation officers invoked a

condition of his supervised release that authorized

2 No. 23-2427

warrantless searches of his property under certain conditions.

On the day Dixon was arrested, officers conducted a series of

searches of a Pontiac, a cellphone, a home in Silvis, Illinois, an

Audi, and a duffel bag. Each search built on information

learned in the prior searches. The officers found text messages

discussing the distribution of cannabis, several handguns and

ammunition, and drug paraphernalia. Based on this evidence

and evidence about the earlier hit and run, Dixon was

convicted on two counts each of possessing narcotics with

intent to distribute, possessing a firearm in furtherance of a

drug trafficking crime, and being a felon in possession of a

firearm. He moved to suppress all the evidence obtained in

the searches conducted on the day he was arrested, arguing

that the searches had exceeded the scope authorized by his

supervised release search condition. The district court denied

his motion, and Dixon challenges that decision on appeal.

Our review of the district court’s decision is complicated

by the fact that both parties failed to submit actual evidence

supporting the factual assertions in their briefs on the motion

to suppress. We therefore find significant gaps in the record.

In denying Dixon’s motion, the district court appears to have

relied substantially on the government’s unsupported

statement of facts. During oral argument before this court, the

government told us that courts in the Central District of

Illinois regularly rely on one party’s unsupported statement

of facts to decide motions to suppress, so long as those facts

are not disputed by the other party. We do not have before us

a clear and complete picture of how this practice works. But

whatever efficiency gains might be achieved by this practice,

it does not, in the absence of a clear stipulation of facts,

produce a proper evidentiary basis for a district court’s

factual findings or for appellate review.

No. 23-2427 3

Still, although the pretrial record is less complete than we

might wish, we ultimately affirm the denial of the motion to

suppress. Dixon failed to offer evidence on the threshold issue

of his Fourth Amendment standing, i.e., that he had legitimate

expectations of privacy in the places and items searched. As a

result, he cannot challenge any of the allegedly unconstitu-

tional searches. Further, the record we have shows that at

least the searches of the Pontiac and the cellphone were rea-

sonable and permissible under the terms of Dixon’s super-

vised release.

I. Factual and Procedural Background

During the early hours of October 20, 2019, an Illinois state

trooper saw a gray Mitsubishi crash into another car. The

Mitsubishi’s driver immediately left the car and ran away.

Searches of the car found a photograph of Dixon, a rental

agreement in the name of Dixon’s mother, three guns, a box

of ammunition, three clear baggies of suspected crack cocaine,

a scale, a shoebox with several bags of suspected cannabis,

and a car key with an Audi logo. Shortly after the crash, the

state trooper identified Dixon as the driver of the car. The

Rock Island Police Department contacted the Probation Office

to report Dixon as a suspect in a hit and run.

Based on the investigation of the hit and run, the federal

Probation Office requested and received an arrest warrant for

Dixon and petitioned to revoke his supervised release. The

petition cited three violations of law: leaving the scene of an

accident, possessing a firearm, and possessing a controlled

substance. The Probation Office arranged for Dixon to meet

his probation officer on December 18 and planned to search

Dixon and his property for any contraband during the

appointment. On December 18, officers saw Dixon arrive at

4 No. 23-2427

the Probation Office in a purple Pontiac. After Dixon entered

the building, officers arrested him on the warrant and

searched him. On his person, the officers found a key ring

with three keys: two regular keys and one electronic remote

key bearing an Audi logo.

The probation officers then invoked a condition of Dixon’s

supervised release authorizing warrantless searches of his

property. Officers searched the Pontiac that Dixon had driven

to the courthouse. They found a locked cellphone, a

marijuana cigarette, and a small scale. The officers returned to

the office and asked Dixon for the passcode for the phone. He

refused to answer, but officers correctly guessed the passcode.

They searched the cellphone’s text messages, internet search

history, social media accounts, and photo gallery. They found

two categories of incriminating evidence: (1) text messages

discussing the distribution of cannabis and telling unnamed

recipients to come to an address in Silvis, Illinois, and

(2) pictures and videos depicting Dixon with large amounts

of cannabis or a white Audi with a specific license plate.

The probation officers split up. One group searched the

East Moline house where Dixon had told his probation officer

he was living. Dixon does not challenge the legality of that

search. Another group went to the house in Silvis mentioned

in Dixon’s text messages. Officers used another key on

Dixon’s key ring to unlock the front and back doors. They also

found the white Audi pictured in the phone’s photo gallery in

a parking area behind the Silvis house and used Dixon’s car

key to unlock it. Inside the car, they found a duffel bag on the

backseat. Inside the duffel bag, they found two vacuum-

sealed bags of suspected cannabis, a handgun, and a baggie

of ammunition.

No. 23-2427 5

Dixon was later charged with two counts of possessing

drugs with intent to distribute (counts 1 and 4), two counts of

possessing a firearm in furtherance of a drug trafficking crime

(counts 2 and 5), and two counts of being a felon in possession

of a firearm (counts 3 and 6). Counts 1, 2, and 3 arose from the

October 20 hit and run. Counts 4, 5, and 6 arose from the

December 18 searches.

Dixon has not challenged the evidence seized from the

October 20 hit and run, but he moved to suppress the

evidence seized on December 18 from the Pontiac, cellphone,

Silvis house, Audi, and duffel bag. He argued that the

warrantless searches exceeded the scope authorized by his

supervised release search condition and thus violated the

Fourth Amendment. He argued that once he was arrested,

probation officers needed a warrant to conduct the challenged

searches. Dixon also requested an evidentiary hearing. The

government argued that Dixon had abandoned any

reasonable expectation of privacy in the places and items

searched and therefore lacked standing to challenge any of

the searches. It also argued that all the warrantless December

18 searches were lawful under the search condition in Dixon’s

supervised release order.

The district court denied Dixon’s request for an

evidentiary hearing. On the merits the court denied his

motion to suppress the evidence discovered in the December

18 searches. It concluded that Dixon did not have a legitimate

expectation of privacy in any of the items or places searched

and that all the searches were supported by reasonable

suspicion to believe contraband connected to the October 20

hit and run would be found.

6 No. 23-2427

Dixon went to trial. A jury found him guilty on all six

counts. The district court sentenced him to 260 months in

prison. Dixon has appealed, challenging only the denial of his

motion to suppress as it affects counts 4, 5, and 6.

II. Standard of Review

On appeal, Dixon argues that he had a legitimate

expectation of privacy in the Pontiac, cellphone, Audi, Silvis

house, and duffel bag, and that all the December 18 searches

were unreasonable. He also challenges the district court’s

denial of his request for an evidentiary hearing.

A district court’s denial of a motion to suppress entails

mixed questions of fact and law. We “review factual

determinations for clear error and legal questions de novo.”

United States v. Carlisle, 614 F.3d 750, 754 (7th Cir. 2010).

“Determinations of probable cause and reasonable suspicion

are normally mixed questions of fact and law, but when ‘what

happened?’ is not at issue, the ultimate resolution of whether

probable cause or reasonable suspicion existed is a question

of law which we review de novo.” Id.; accord, Bufkin v. Collins,

604 U.S. ___,___, 145 S. Ct. 728, 740 (2025), first citing Ornelas

v. United States, 517 U.S. 690, 699 (1996) (holding de novo

review applies to findings of probable cause and reasonable

suspicion under Fourth Amendment), and then citing U.S.

Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Village at

Lakeridge, LLC, 583 U.S. 387, 396 n.4 (2018). We review for

abuse of discretion the denial of an evidentiary hearing on a

motion to suppress. United States v. Black, 104 F.4th 996, 1001

(7th Cir. 2024).

No. 23-2427 7

III. Legitimate Expectations of Privacy

Fourth Amendment rights are personal. They may not be

asserted vicariously, on behalf of others. Carlisle, 614 F.3d at

756, citing Rakas v. Illinois, 439 U.S. 128, 134 (1978). An accused

defendant seeking to suppress evidence obtained from an

allegedly unconstitutional search bears the burden of

establishing that the search violated his own Fourth

Amendment rights. Id. at 758, citing United States v. Salvucci,

448 U.S. 83, 95 (1980). This is a question of substantive Fourth

Amendment law, but courts often refer to it as a question of

standing. E.g., United States v. Walton, 763 F.3d 655, 658 (7th

Cir. 2014), citing Rakas, 439 U.S. at 133. A defendant has

standing to challenge a search only if he has a “legitimate

expectation of privacy” in the searched area. Carlisle, 614 F.3d

at 758. “A legitimate expectation of privacy exists when the

defendant exhibits a subjective expectation of privacy and the

expectation is one that society is prepared to recognize as

reasonable.” United States v. Pitts, 322 F.3d 449, 456 (7th Cir.

2003). Only Dixon’s subjective expectations of privacy are at

issue in this case.

The district court gave two reasons for finding that Dixon

lacked standing to challenge the December searches. First, the

court found that prior to those searches, Dixon had made

statements disassociating himself from the Pontiac, the

cellphone, the Silvis house, and the Audi. Based on those

statements, the court held that Dixon lacked a subjective

expectation of privacy in any of the items or places searched.

Second, and independent of those statements, the court also

held that Dixon had simply failed to meet his burden of proof

on standing.

8 No. 23-2427

We affirm because we agree that Dixon failed to meet his

burden of proof on standing. We do not believe, however, that

the district court had evidence before it that could support its

findings that Dixon made statements disassociating himself

from the items and places searched.

A. Dixon’s Burden to Establish a Privacy Interest

Because Dixon bears the burden of establishing his

standing to challenge the December searches, he needed to

come forward with some evidence that he had a subjective

expectation of privacy in the Pontiac, the Silvis house, and the

Audi. See United States v. Mendoza, 438 F.3d 792, 795 (7th Cir.

2006) (affirming denial of motion to suppress where

defendant failed to produce any evidence of a privacy

interest); United States v. Meyer, 157 F.3d 1067, 1080 (7th Cir.

1998) (same); United States v. Ruth, 65 F.3d 599, 605 (7th Cir.

1995) (same). 1

As we have noted before, it is almost impossible to find a

privacy interest without an affidavit or testimony from the

1 Because Fourth Amendment standing to challenge a search is not

jurisdictional, ordinary rules of waiver and forfeiture apply. If the

government concedes that the defendant has a reasonable expectation of

privacy in the searched area, the district court may proceed directly to

evaluating the merits of the challenged search. See Byrd v. United States,

584 U.S. 395, 411 (2018) (“Because Fourth Amendment standing is

subsumed under substantive Fourth Amendment doctrine, it is not a

jurisdictional question and hence need not be addressed before

addressing other aspects of the merits of a Fourth Amendment claim.”);

United States v. Cellitti, 387 F.3d 618, 623 (7th Cir. 2004) (accepting

government’s concession that defendant had standing to challenge

seizure of keys). In this case, though, the government challenged Dixon’s

standing, and Dixon had an opportunity to respond if he wished with

evidence supporting his asserted privacy interest.

No. 23-2427 9

defendant. Mendoza, 438 F.3d at 795, quoting Ruth, 65 F.3d at

605. During the pretrial suppression proceedings, Dixon

offered only a conclusory assertion that he had an expectation

of privacy in the searched properties. He did not claim to own

or to possess legitimately any of the searched properties or to

have a right to exclude others from them. He also did not

testify, submit an affidavit, or produce any other evidence

regarding his subjective expectation of privacy. Because

Dixon failed to offer evidence from which the district court

could find a privacy interest in the Pontiac, the Silvis house,

or the Audi, he failed to show that those searches intruded on

his Fourth Amendment rights. And because the cellphone

and the duffel bag were found within the Pontiac and the

Audi respectively, he also cannot challenge the searches of

those items. See Mendoza, 438 F.3d at 795 (“[A] defendant

must show a privacy interest not only in the seized good, but

also in the area where the good was found.”), citing Salvucci,

448 U.S. at 85.

Dixon might have been reluctant to provide evidence of

his privacy interest because such evidence also would have

tended to prove he was guilty of the charged offenses. It has

long been established, though, that the government cannot

use testimony given to meet Fourth Amendment standing

requirements as direct evidence against the defendant at trial

on the question of guilt or innocence. Simmons v. United States,

390 U.S. 377, 393–94 (1968). To benefit from Simmons, a

defendant may assert his subjective expectation of privacy

and request an opportunity to testify to the facts

demonstrating his asserted privacy interest.2

2 Our case law has consistently required a defendant to show

disputed, material facts to receive an evidentiary hearing. E.g., United

10 No. 23-2427

Dixon’s problem is that he never submitted any evidence

or requested an opportunity to testify to his standing. Instead,

he relied on the government’s argument that the December

searches were reasonable executions of Dixon’s supervised

release search condition. On appeal, he reprises his argument

that the government conceded his proprietary interest in the

items and places searched by relying on his search condition,

since that condition authorized searches of “his” property.

We disagree. Dixon cannot rely on legal theories in the

government’s brief to establish his reasonable expectation of

privacy. As other circuits have recognized, a defendant “is not

entitled to rely on the government’s allegations in the

pleadings, or positions the government has taken in the case,

to establish standing.” United States v. Zermeno, 66 F.3d 1058,

1062 (9th Cir. 1995); accord, United States v. Maxwell, 778 F.3d

719, 732 (8th Cir. 2015) (quoting Zermeno). The Ninth Circuit’s

analysis in Zermeno is persuasive on this point.

In Zermeno the defendant argued that he had a reasonable

expectation of privacy based on his proprietary interest in the

searched house. 66 F.3d at 1061. Instead of presenting

evidence to support his interest, however, he relied on

statements in the indictment that he leased and operated the

searched home as a “stash house.” Id. at 1061–62. The Ninth

Circuit rejected his attempt to rely on the government’s

States v. Edgeworth, 889 F.3d 350, 353 (7th Cir. 2018). But a defendant may

testify to meet his burden of proof on standing even if an evidentiary

hearing is not otherwise necessary. As Simmons explained, a defendant’s

testimony given to meet standing requirements is “an integral part of his

Fourth Amendment exclusion claim.” 390 U.S. 377, 391 (1968). The use

immunity provided by Simmons is therefore not contingent on the

existence of disputed, material facts.

No. 23-2427 11

position about his guilt for the charged crime. The court

explained that the “government’s assertions in its pleadings

are not evidence” and did “not relieve Zermeno of his burden

to establish standing.” Id. at 1062; see also United States v.

Long, 301 F.3d 1095, 1099–1100 (9th Cir. 2002) (affirming

denial of motion to suppress where defendant relied on

government’s argument at bail hearing that he resided at

searched property and failed to present any evidence

supporting his standing).

So too here. It was Dixon’s “obligation to present evidence

of his standing, or at least to point to specific evidence in the

record which the government presented and which

established his standing.” Zermeno, 66 F.3d at 1062. The

government’s argument that the December searches were

reasonable executions of Dixon’s search condition is a

litigating position, not evidence that Dixon had a proprietary

interest in the items and places searched. The government’s

argument did not relieve Dixon of his burden to produce

evidence showing his standing. Because he failed to meet that

burden, he cannot challenge the December searches. 3

3 For the first time on appeal, Dixon also asks us to recognize “a

limited form of standing where, as here, the Government derives its

authority to search third-party property from a supervisee’s release

conditions.” We decline to consider this novel theory of standing, which

was not presented to the district court.

Like the district court, we recognize the tension between the courts

saying that Dixon failed to establish standing to challenge the searches

while saying at the same time that searches were justified under the

supervised release condition allowing searches of “his” property.

Nevertheless, we think the better analytic path is to keep questions of

standing and reasonableness separate because of the different burdens of

12 No. 23-2427

B. Dixon’s Supposed Statements Denying Links to Searched

Locations and Items

Dixon’s failure to produce any evidence from which the

court could find a privacy interest was a sufficient basis for

denying his motion to suppress. See Mendoza, 438 F.3d at 795.

The district court went further to address alternative grounds

and found that Dixon had made statements disassociating

himself from the Pontiac, the cellphone, the Audi, and the

Silvis house during his appointment at the Probation Office.

Based on those supposed statements, the court held that

Dixon lacked a subjective expectation of privacy in any of the

searched properties. Such statements of disassociation can

indeed support a district court’s finding that a defendant

lacks standing to challenge a search. See United States v.

Carlisle, 614 F.3d 750, 759 (7th Cir. 2010) (affirming denial of

motion to suppress based in part on defendant’s statements

to officers that he did not own bag that was searched); see also

United States v. Amaral-Estrada, 509 F.3d 820, 827 (7th Cir.

2007) (similar where defendant denied knowledge of car or

bag inside).

The problem in this case is that there is no actual evidence

in the pretrial record showing that Dixon made the alleged

statements. To make its factual findings, the district court

appears to have relied on the government’s unsupported

statement of facts. 4

production and persuasion and the potential for factual variations posed

by, for example, issues of abandonment or disclaimers.

4 Dixon did attach the February 6 Revised Petition for Mandatory

Revocation of Supervised Release to his Additional Argument/Briefing

Motion to Suppress. Like the government’s brief, the February 6 Petition

No. 23-2427 13

The district court erred by relying on the government

lawyers’ unsupported statement of facts to make factual

findings. The unsupported assertions of attorneys are not

evidence, so they cannot support a district court’s factual

findings. E.g., United States v. Diaz, 533 F.3d 574, 578 (7th Cir.

2008); Campania Management Co. v. Rooks, Pitts & Poust, 290

F.3d 843, 852–53 (7th Cir. 2002). Although evidentiary

standards are relaxed in pretrial proceedings, Fed. R. Evid.

104(a), both the government and the defendant are entitled to

“procedures sufficient to ensure a reliable determination of

the facts underlying a motion to suppress.” United States v.

Raddatz, 592 F.2d 976, 982 (7th Cir. 1979), rev’d on other grounds,

447 U.S. 667 (1980), citing Jackson v. Denno, 378 U.S. 368, 376–

77 (1964); United States v. Watson, 87 F.3d 927, 928 n.1, 932 (7th

Cir. 1996) (remanding for new suppression hearing where

district court “deprived the government of a fair hearing, and

therefore ruled on an incomplete record”). Relying on

unsupported assertions from either party fails to clear that

bar. 5

Because the government lawyers’ assertions about what

Dixon said during his appointment at the probation office

asserted that Dixon made statements disassociating himself from the

objects of the December searches. Because those assertions by government

lawyers were also unsupported by evidence, they do not fill the evidence

gaps.

5 For the same reason, we reject Dixon’s argument that the facts

known to the district court at the time of the pretrial suppression

proceeding were sufficient to establish his standing. Those facts were also

presented in the government’s unsupported statement of facts. It would

also have been erroneous for the district court to rely on the government’s

statement of facts to find that Dixon had a reasonable expectation of

privacy in the searched property.

14 No. 23-2427

were not supported by record evidence, the district court

should not have considered them. Nonetheless, the district

court’s error was harmless because we agree that Dixon failed

to meet his burden of proof on standing.

IV. Reasonableness

We also affirm the district court’s denial of Dixon’s motion

to suppress evidence found during the searches of the Pontiac

and the cellphone on the alternative ground that those

searches were reasonable. Both searches were authorized by

Dixon’s supervised release search condition and supported

by probable cause. It is less clear that the searches of the Silvis

house, the Audi, and the duffel bag were authorized by

Dixon’s search condition, but because he failed to show

standing, we need not resolve definitively the reasonableness

of those searches. Before reaching the reasonableness of the

December searches, we first address the government’s failure

to produce evidence supporting the reasonableness of the

searches.

A. The Government’s Burden to Support the Warrantless

Searches.

Because the December 18 searches were executed without

warrants, the government bears the burden of proving the

searches were reasonable. United States v. Longmire, 761 F.2d

411, 417 (7th Cir. 1985), citing Coolidge v. New Hampshire, 403

U.S. 443, 455 (1971). Instead of submitting affidavits, officer

testimony, or other evidence, the government relied on

unsupported factual assertions in its brief. The district court

relied in part on those unsupported facts to hold that the

December searches were reasonable. For the reasons

explained above, the government lawyers’ unsupported

No. 23-2427 15

assertions simply did not provide a sufficient basis for the

court’s factual findings.

It is especially problematic for courts to rely on a

government lawyer’s unsupported statement of facts to hold

that a warrantless search is reasonable. Requiring the

government to prove the reasonableness of warrantless

searches is one way that courts enforce the Fourth

Amendment’s “strong preference for searches conducted

pursuant to a warrant.” Ornelas v. United States, 517 U.S. 690,

699 (1996) (internal quotation marks omitted), quoting Illinois

v. Gates, 462 U.S. 213, 236 (1983); Longmire, 761 F.2d at 417.

A warrant must be supported by probable cause, an oath,

and particularity. United States v. Castetter, 865 F.3d 977, 978

(7th Cir. 2017). These requirements are typically satisfied

through an officer’s warrant affidavit. United States v.

McMurtrey, 704 F.3d 502, 508 (7th Cir. 2013). It is inconsistent

with the constitutional preference for a warrant to allow the

government to justify a warrantless search without producing

at least evidence comparable to what would have been

required to obtain a warrant. An attorney’s unsworn, second-

hand account is not an adequate substitute for the sworn

statement of the officers who gathered the information

justifying a search. Cf. United States v. Gibbs, 26 F.4th 760, 766

(7th Cir. 2022) (in sentencing, a prosecutor’s representation

about what the defendant said during the proffer session was

not “a substitute for calling the official who was present at the

proffer session and obtaining that person’s testimony”).

Although the government failed to meet its burden to

prove that the December searches were reasonable, we can

use the evidence presented at trial to evaluate the

reasonableness of the searches. As we explained in United

16 No. 23-2427

States v. Howell, 958 F.3d 589, 597 (7th Cir. 2020), we may

exercise our discretion to consider trial evidence when

reviewing a motion to suppress. Our decision in any

particular case must strike a balance between two interests:

“avoiding a windfall reversal of a conviction while also

steering clear of unfair prejudice to the defendant.” Id. at 596.

In Longmire, we relied on trial evidence to sustain the trial

court’s decision in similar circumstances. During the

suppression hearing in that case, the government did not call

the officer who gathered the facts justifying the challenged

Terry stop. 761 F.2d at 416. At trial, however, the officer

testified to the facts supporting the Terry stop. Id. at 418. His

testimony established by a preponderance of the evidence

that the challenged search was supported by reasonable

suspicion. Id. Because the defendant did not challenge the

trial testimony or attempt to show that it unfairly prejudiced

her, we relied on the officer’s trial testimony to affirm the

denial of the motion to suppress. Id.; accord, Howell, 958 F.3d

at 596.

Our considering the trial evidence here poses even less

danger of unfair prejudice to the defendant than in Longmire,

where the government did not identify any of the relevant

facts during the suppression proceedings. 761 F.2d at 413–16.

Here, the government’s briefs identified all the facts it

believed were pertinent to the reasonableness of the

December searches. The trial evidence did not reveal new

material facts but only provided actual evidence to support

them. Further, Dixon had a strong incentive to contest the

relevant facts during trial because those facts also tended to

prove that he was guilty of the charged offenses. Cf. Howell,

958 F.3d at 597 (declining to consider officer’s testimony at

No. 23-2427 17

trial because it revealed a new material fact that the defendant

may have had sound strategic reasons for not challenging at

trial). Because the trial evidence supports the district court’s

denial of Dixon’s motion to suppress and we see no risk of

unfair prejudice to Dixon, considering the trial evidence

strikes the right balance between the interests at stake in this

case.

B. The Searches of the Pontiac and the Cellphone

The touchstone of the Fourth Amendment is

reasonableness. United States v. Knights, 534 U.S. 112, 118

(2001). Warrantless searches of parolees, probationers, and

their property are evaluated under the general Fourth

Amendment approach of examining the totality of the

circumstances, including sharply diminished privacy

interests during parole and probation. See Samson v.

California, 547 U.S. 843, 848 (2006); United States v. White, 781

F.3d 858, 862 (7th Cir. 2015). We balance the degree to which

a search intrudes on individual liberty against the degree to

which it promotes legitimate governmental interests. White,

781 F.3d at 862, citing Wyoming v. Houghton, 526 U.S. 295, 300

(1999). Dixon’s status as a federal supervisee affects both sides

of the scales. See Knights, 534 U.S. at 118. His legitimate

expectation of privacy was significantly diminished while the

government’s law-enforcement interest in supervising

probationers was substantial. Id. at 119–20; White, 781 F.3d at

862.

Balancing these interests, the Supreme Court has held that

a warrantless search of a probationer’s home or property

satisfies the Fourth Amendment if it is “supported by

reasonable suspicion and authorized by a condition of

probation.” United States v. Caya, 956 F.3d 498, 502 (7th Cir.

18 No. 23-2427

2020) (internal quotation marks omitted), quoting Knights, 534

U.S. at 122; United States v. McGill, 8 F.4th 617, 621–22 (7th Cir.

2021) (applying Knights’ reasonable-suspicion standard to

person on federal supervised release).

Dixon’s search condition reads in relevant part:

The defendant shall submit to search of his

person, property, residence, adjacent structures,

office, vehicle, papers, computers … and other

electronic communications or data storage

devices or media, conducted by a U.S. Probation

Officer. … An officer may conduct a search

pursuant to this condition only when

reasonable suspicion exists that the defendant

has violated a condition of his release and/or

that the area(s) or item(s) to be searched contain

evidence of this violation or contain contraband.

Dixon argues that his search condition did not authorize any

of the December searches for two independent reasons. First,

he argues that the probation search team lacked sufficient

reason to believe that the cellphone, Audi, duffel bag, or Silvis

house were “his” within the meaning of his search condition.

Second, he argues that the team lacked reasonable suspicion

that evidence of the October hit and run would be found in

any of the items and places searched. We take each argument

in turn.

1. The Pontiac and Cellphone

First, we agree with Dixon that his search condition

authorizes searches of only “his” property. Its language does

not authorize warrantless searches of third-party property,

nor could it. The government’s “overwhelming interest” in

No. 23-2427 19

supervising parolees and probationers “warrant[s] privacy

intrusions that would not otherwise be tolerated under the

Fourth Amendment.” Samson, 547 U.S. at 853 (internal

quotation marks omitted), quoting Pennsylvania Bd. of

Probation and Parole v. Scott, 524 U.S. 357, 365 (1998). People

outside of the parole and probation systems cannot be

subjected to the same kinds of warrantless intrusions on their

privacy without their consent.

We have not before addressed what the government needs

to show to establish that the items and places searched were

sufficiently controlled by the supervisee to be searched

without a warrant. Dixon argues that we should join the

Eighth and Ninth Circuits in holding that an “officer must

have probable cause to believe a dwelling is the residence of

a parolee in order to initiate a warrantless search of a

residence not known to be the home of a parolee.” United

States v. Thabit, 56 F.4th 1145, 1151 (8th Cir. 2023); accord,

Motley v. Parks, 432 F.3d 1072, 1080 (9th Cir. 2005). The Ninth

Circuit also requires lower levels of suspicion for other kinds

of property searched pursuant to a supervised release order.

See United States v. Dixon, 984 F.3d 814, 818–19 (9th Cir. 2020)

(vehicles); United States v. Bolivar, 670 F.3d 1091, 1096 (9th Cir.

2012) (items inside a residence). The government does not

take a position on whether some version of a sufficient

certainty requirement exists. It argues that if such a

requirement exists, the probation officers satisfied it here

under either a reasonable suspicion or a probable cause

standard.

We agree that when the government invokes a supervised

release order to justify a warrantless search, it bears the

burden of showing that the items or places searched were

20 No. 23-2427

sufficiently controlled by or connected to the defendant to fall

within the terms of his supervised release order and the

parolee/probationer exception to the warrant requirement.

We leave more precise mapping of the contours of that

requirement for future cases, perhaps with better evidentiary

records.

Under any standard, the probation officers were

sufficiently certain that Dixon possessed or owned the Pontiac

and the cellphone. Dixon drove the Pontiac alone to his

appointment with his probation officer, indicating that he

controlled it. Regarding the cellphone found in the Pontiac,

Dixon did not have a cellphone on his person when he was

searched. More important, the officers managed to unlock the

phone by using information they had about Dixon from

independent sources, including his tattoos. Based on these

facts, a reasonable person could easily find a “fair probability”

that the cellphone belonged to Dixon. United States v. Simon,

937 F.3d 820, 833 (7th Cir. 2019) (internal quotation marks

omitted), quoting Florida v. Harris, 568 U.S. 237, 244 (2013); see

also United States v. Wood, 16 F.4th 529, 532–33 (7th Cir. 2021)

(applying parolee exception to warrant requirement to search

cellphone found on a “junk pile” in defendant’s home);

Bolivar, 670 F.3d at 1092–93 (officers had reasonable suspicion

to believe that backpack lying in closet of defendant’s shared

one-bedroom apartment was controlled by defendant).

2. The Silvis House, the Audi, and the Duffel Bag

The Silvis house, the Audi, and the duffel bag present a

different story. It is unlikely that the officers were sufficiently

certain that Dixon resided at the Silvis house. Dixon’s

reported residence was in East Moline, Illinois, not Silvis. The

only connections between Dixon and the Silvis house were

No. 23-2427 21

text messages discovered on the cellphone telling unnamed

recipients to come to the Silvis house. Although the text

messages revealed a connection between Dixon and the Silvis

house, they did not provide reasonable suspicion to believe

Dixon resided at the Silvis house. Since homes are the

preeminent focus of the Fourth Amendment’s protections,

e.g., United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir.

1991), a lower standard may not adequately protect the

relevant privacy interests. See Thabit, 56 F.4th at 1151–52;

Motley, 432 F.3d at 1079–80.

The officers discovered the Audi only after searching what

lawyers call the curtilage of the Silvis house, the land

immediately surrounding the house. The Audi was parked

behind the Silvis house and not visible from the street. “When

‘the Government obtains information by physically

intruding’ on persons, houses, papers, or effects, ‘a “search”

within the original meaning of the Fourth Amendment’ has

‘undoubtedly occurred.’” Florida v. Jardines, 569 U.S. 1, 5–6

(2013) (holding that officers conducted a search when they

physically entered and occupied curtilage of defendant’s

house to gather information by conducting a dog sniff),

quoting United States v. Jones, 565 U.S. 400, 406–07 n.3 (2012).

Evidence from the searches of the Audi and the duffel bag

would therefore be admissible only if the search of the Silvis

house and its curtilage was itself reasonable. See Utah v.

Strieff, 579 U.S. 232, 237 (2016) (“the exclusionary rule

encompasses … ‘evidence later discovered and found to be

derivative of an illegality,’ the so-called ‘fruit of the poisonous

tree.’” (quoting Segura v. United States, 468 U.S. 796, 804

(1984)).

22 No. 23-2427

Because Dixon lacks Fourth Amendment standing, we

need not definitively resolve the needed level of certainty for

the search of the Silvis house. When, as here, both the

defendant and the government had the opportunity to submit

evidence and failed to do so, the defendant bears the adverse

consequences of the failure to adduce proof. If the officers

unlawfully entered the Silvis home or its curtilage, it may be

that other persons, such as owners or residents, have civil

claims for damages against the officers. United States v.

Jackson, 576 F.3d 465, 468 (7th Cir. 2009). But Dixon cannot

vindicate those persons’ Fourth Amendment rights in this

proceeding.

3. Reasonable Suspicion for the December Searches

For the searches of the Pontiac and the cellphone to be

authorized by Dixon’s search condition, they also had to be

supported by reasonable suspicion. Dixon’s arguments

assume that the officers needed both (1) reasonable suspicion

that Dixon violated a condition of his release and

(2) reasonable suspicion that the area(s) or item(s) to be

searched contained evidence of this violation or contraband.

We read the “and/or” language of his search condition

differently. Because the language included the disjunctive

“or” between clauses, reasonable suspicion that Dixon

violated a condition of his release was sufficient to invoke his

search condition. See Knights, 534 U.S. at 121 (“When an

officer has reasonable suspicion that a probationer subject to

a search condition is engaged in criminal activity, there is

enough likelihood that criminal conduct is occurring that an

intrusion on the probationer's significantly diminished

privacy interests is reasonable.”).

No. 23-2427 23

Before searching the Pontiac and the cellphone, the

probation officers clearly had reasonable suspicion that Dixon

had committed multiple federal crimes in violation of his

supervised release order. Reasonable suspicion requires

“specific and articulable facts” suggesting criminal activity

under the totality of the circumstances. United States v. Uribe,

709 F.3d 646, 650 (7th Cir. 2013) (internal quotation marks

omitted), quoting Terry v. Ohio, 392 U.S. 1, 21 (1968). The Rock

Island Police Department’s investigation of the October hit

and run found a rental agreement tying the car to Dixon’s

mother, three guns, ammunition, and distribution quantities

of suspected cannabis and cocaine. Shortly after the accident,

the state trooper who saw it identified Dixon as the driver of

the car, and another investigator discovered a photo of Dixon

in the car. Further, a judge independently found probable

cause that Dixon had committed multiple violations of law

based on the October hit and run. These facts, and the judge’s

independent finding of probable cause, more than satisfy the

reasonable-suspicion standard in Dixon’s search condition.

In sum, because the probation officers were sufficiently

certain that the Pontiac and the cellphone belonged to Dixon

and had reasonable suspicion to believe he had committed

multiple violations of law, the searches of the Pontiac and the

cellphone were reasonable. Although it is less clear on this

record whether the searches of the Audi, the Silvis house, and

the duffel bag fell within Dixon’s search condition, Dixon’s

failure to produce evidence of his standing is decisive without

our needing to decide whether those searches were

reasonable.

24 No. 23-2427

V. No Evidentiary Hearing

Finally, Dixon argues that the district court erred by

denying his request for an evidentiary hearing on his motion

to suppress. Dixon requested a hearing to elicit testimony

from the probation officers who conducted the December

searches. He urged that “without any evidentiary hearing the

Court does not have any facts to support findings relative to

the Motion.”

As we have explained, the lack of evidence in the pretrial

record was a problem, but it was a problem for both sides.

Neither the Federal Rules of Criminal Procedure nor our case

law require district courts to receive evidence in a particular

way or order when deciding a motion to suppress. To the

contrary, district courts have discretion to choose procedures

when deciding a motion to suppress. As the Supreme Court

explained in Byrd v. United States, district courts may address

Fourth Amendment standing and reasonableness in whatever

order best serves the interests of the case. 584 U.S. 395, 411

(2018). Rule 12 places few restrictions on the procedures

district courts may employ or the evidence they may consider

when deciding pretrial motions.

If there are no material factual disputes, district courts

may, and often do, decide pretrial motions to suppress on the

paper record. See Fed. R. Crim. P. 47(b) (authorizing use of

affidavits to establish facts in pretrial proceedings). If the

record is insufficient to support a fact material to the district

court’s decision, the court can require the parties to

supplement the record before ruling. See, e.g., United States v.

Sims, 879 F. Supp. 883, 889 (N.D. Ill. 1995) (district court

ordered government to provide evidence supporting its

version of facts before relying on those facts to deny

No. 23-2427 25

defendant’s motion to suppress). Alternatively, the defendant

and the government can stipulate to some or all facts material

to a motion to suppress. Our bottom line is simply that a

district court’s factual findings must be supported by record

evidence. 6

While a district court may hold an evidentiary hearing to

fill gaps in the record, it is not required to do so. A district

court is required to hold an evidentiary hearing only if “a

substantial claim is presented and there are disputed issues of

material fact.” United States v. Edgeworth, 889 F.3d 350, 353 (7th

Cir. 2018), quoting United States v. Curlin, 638 F.3d 562, 564

(7th Cir. 2011). To receive an evidentiary hearing, the

defendant’s “allegations and moving papers must be

‘sufficiently definite, specific, non-conjectural and detailed’”

to show that his claim is substantial and that there are

material factual disputes. Curlin, 638 F.3d at 564, quoting

United States v. McGaughy, 485 F.3d 965, 969 (7th Cir. 2007).

Dixon conceded in his moving papers that there “may not

be ‘significant’ disputed facts regarding the Motion.” That

concession defeats his argument on appeal that he met his

burden to establish disputed material facts. Although Dixon

identified fourteen unsupported factual assertions in the

government’s brief, he never provided his own account of the

December searches. Questioning the evidentiary basis for the

government’s factual assertions is not the same as identifying

6 In the absence of an agreement between the parties, even an

undisputed factual assertion ordinarily must be supported by record

evidence for a court to consider it, as in civil summary judgment practice.

Cf. Stewart v. McGinnis, 5 F.3d 1031, 1033–35 (7th Cir. 1993) (in summary

judgment proceedings, district courts may consider an undisputed fact in

a party’s statement of facts only if it is also supported by record evidence).

26 No. 23-2427

specific, disputed facts. See United States v. Harris, 914 F.2d

927, 933 (7th Cir. 1990) (“Moreover, the series of questions

Harris raises in his brief concerning the circumstances of his

confession are just that—a series of questions. Not a single

contention is backed up by clearly articulated factual charges.

None is worthy of a hearing.”).

Because Dixon did not identify any disputed, material

facts, he did not establish the need for an evidentiary hearing,

and the district court did not abuse its discretion by denying

his request.

AFFIRMED.