Defendant packed marijuana in a trailer and entrusted it to a driver to take it to him in Vermont. The trailer was stopped in Illinois, subjected to a dog sniff, and the marijuana was found. The driver agreed to continue to drive it on to defendant in Vermont, and he did. When it arrived, defendant was arrested. Even as a bailor, defendant had no reasonable expectation of privacy in the trailer entrusted to another who was driving to him. United States v. Grossman-Crist, 2014 U.S. Dist. LEXIS 177178 (D.Vt. December 22, 2014). Of note is the court’s sensitive discussion of reasonable expectation of privacy; some judges would have just blown this off:
The court finds that Grossman-Crist successfully demonstrates a subjective expectation of privacy in the trailer from which the cannabis was seized. He alleges that he owned the cannabis, placed it himself in the secret compartment in the driver’s trailer, entrusted the cannabis to the driver to transport, and “expected [the cannabis] to remain undisturbed until [it] reached Vermont.” (Doc. 55 at 4.) See Paulino, 850 F.2d at 97 (holding that defendant demonstrated a subjective expectation of privacy where he hid counterfeit bills under a rubber mat beneath his feet in the passenger side of a vehicle); United States v. Roy, 734 F.2d 108, 110 (2d Cir. 1984) (concluding defendant’s act of locking weapons and other items in the trunk of a Subaru manifested subjective expectation of privacy).
Grossman-Crist has failed to show, however, that his expectation of privacy was reasonable. Various factors derived from property law and societal customs weigh against him. Grossman-Crist owned neither the truck that was stopped nor the trailer attached to it. He therefore had no authority to exclude others from the trailer or its hidden compartment. See Perea, 986 F. 2d at 639-40; United States v. Soule, 908 F.2d 1032, 1036 (1st Cir. 1990); Paulino, 850 F.2d at 97; Smith, 621 F.2d at 487; United States v. Galante, 547 F.2d 733, 739 (2d Cir. 1976); Mikelic, 2011 WL 1837844, at *4 (all analyzing, inter alia, defendant’s ownership interest and ability to exclude or control access to premises searched in finding no reasonable expectation of privacy). Nor was Grossman-Crist present at the scene of the search he challenges or at the scene of the seizure. See Soule, 908 F.2d at 1036; Smith, 621 F.2d at 487; Galante, 547 F.2d at 739 (all finding defendant’s absence from the scene of the search a factor militating against a reasonable expectation of privacy in the premises searched).
Additionally, the “purely commercial nature of the transaction” between Grossman-Crist and the driver and the “fleeting and insubstantial connection” Grossman-Crist had with the trailer weigh against finding that Grossman-Crist’s expectation of privacy was reasonable. Minnesota v. Carter, 525 U.S. 83, 91, 102, (1998); see also Rawlings v. Kentucky, 448 U.S. 98, 104-06 (1980) (stating that petitioner who stuffed drugs in the purse of an acquaintance of three days had no reasonable expectation of privacy in it); Paulino, 850 F.2d at 97 (noting fact that defendant only knew automobile owner for one week weighed against finding reasonable expectation of privacy in the automobile); cf. United States v. Eldridge, No. 09CR329A, 2012 WL 2131890, at *4 (W.D.N.Y. June 12, 2012) (finding that defendant had reasonable expectation of privacy in girlfriend’s residence in which he stored personal property while he was incarcerated where he was in a committed relationship with the resident of the address; he used the storage address as his mailing address; and he intended to reside at the storage address when he got out of prison).
The one factor weighing in Grossman-Crist’s favor is his asserted and uncontested ownership of the cannabis. Although privacy—and not property rights—provides the basis for “standing” under current Fourth Amendment jurisprudence, the Supreme Court continues to recognize that ownership and lawful possession of premises, vehicles and other places may provide the basis for a reasonable expectation of privacy. See Oliver v. United States, 466 U.S. 170, 190 (1984) (“[PJroperty rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas.”) (quoting Rakas, 439 U.S. at 153 (Powell, J., concurring)) (internal quotations omitted). As any child who has learned to shut the bathroom door understands, the right to exclude others is where privacy begins. But ownership of an object which is no longer in one’s possession has never been sufficient by itself to establish an expectation of privacy. See, e.g., United States v. Lisk, 522 F.2d 228, 231 (7th Cir. 1975) (holding that owner of an explosive device hidden in the trunk of someone else’s car lacked standing to object to a search of the car).
A reasonable expectation of privacy requires more than a general hope of evading detection by law enforcement. See Rawlings, 448 U.S. at 105 (“Had petitioner placed his drugs in plain view, he still would have owned them, but he could not claim any legitimate expectation of privacy.”); Galante, 547 F.2d at 739 (“One who conceals contraband or stolen goods on the premises of another does not thereby acquire an interest in those premises.”). As the Supreme Court explained in Katz, 389 U.S. at 353, “the Fourth Amendment protects people—and not simply ‘areas’—against unreasonable searches and seizures ….” In the case of vehicle searches, the people most obviously protected are owners, drivers and to a lesser degree other occupants. No case, however, extends this protection to absent owners of contraband or other evidence of crime who lack any other basis for an expectation of privacy in the area searched.
Grossman-Crist specifically argues that he derived a reasonable expectation of privacy from his status as bailor of the cannabis, and he cites United States v. Perea in support of this proposition. (Doc. 55 at 1.) In Perea, however, the Second Circuit held that a bailee had a protected privacy interest in the bailed item by virtue of his right and duty “to exclude others from possession of the property entrusted to him.” 986 F.2d at 640. Perea was silent on the privacy interest of a bailor. See also Eldridge, 2012 WL 2131890, at *1 (“Perea does not discuss the Fourth Amendment rights of bailors.”); United States v. Miller, No. 96 Civ. 0412, 1997 WL 109565, at *2 n.2 (S.D.N.Y. Mar. 12, 1997) (“Perea stands only for the proposition that bailees—not bailors … can have sufficient interest in bailed property to give them standing to make a Fourth Amendment challenge.”). Grossman-Crist’s status as bailor, therefore, is insufficient to give him a reasonable expectation of privacy in the driver’s trailer. See also United States v. Sullivan, 544 F. Supp. 701, 714 (D. Me. 1982), aff’d, 711 F.2d 1 (1st Cir. 1983) (“[W]here restrictions on access are neither imposed by the bailor nor fairly inferable from the surrounding circumstances, courts have held that the bailor assumed the risk that the bailee might consent to a governmental search.”).
Although extending Fourth Amendment protections to bailors as well as to bailees has the appeal of symmetry, this case illustrates the very different expectations of privacy which the court can reasonably attribute to each. As the only person in possession of the trailer and the drugs at the time of the roadside stop, the driver plainly had “standing” to challenge every aspect of his interaction with the Illinois State Police, including the initial stop, his arrest, the initial search of the trailer, and the subsequent search at the barracks. He also had authority to consent to a search. His expectation of privacy is derived less from the bailment—the legal relationship between himself and Grossman-Crist—than from his ownership of the trailer, his presence at the stop and roadside search, and his possession of the contraband.
In contrast, the basis on which Grossman-Crist as bailor may claim a reasonable expectation of privacy is much thinner. He owned the cannabis and obviously did not wish it to be discovered because he helped to conceal it beneath the trailer’s false floor. But then he left the vehicles and the contraband in the driver’s care. He retained a proprietary interest as owner but no possession or control of the cannabis during its trip across the United States. He was not present at the stop. If contacted, he could not have consented to the search since he neither owned nor occupied the vehicles involved.
