United States v. Kenyon Walton

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 at

703–04. 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).