“This case presents the novel issue of whether an individual can have a ‘reasonable expectation of privacy’ in a storage unit rented with a stolen identity.” He doesn’t. Using a stolen ID to rent the building was the crime of identity theft. United States v. Johnson, 584 F.3d 995 (10th Cir. 2009):
Even assuming that Johnson established that he had a subjective expectation of privacy in the storage unit, we conclude that he did not show that his expectation of privacy was one that society would recognize as objectively reasonable.
2. No One Approach Can Accurately Distinguish Whether a Defendant Has a Reasonable Expectation of Privacy
There is no talismanic test to determine whether an expectation of privacy is one that society is prepared to accept as reasonable. See O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality) (“We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable.”). Instead, as LaFave’s definitive treatise notes, the Supreme Court has appeared to utilize four distinct but coexisting approaches to the “reasonable expectation of privacy” test, reflecting “four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model.” 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 2.1(b), at n.82.1 (4th ed. 2004 & Supp. 2008-09) (quoting Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 503 (2007)). Thus, at times the Court has looked to positive law, such as property and contract law, to determine whether a defendant could establish a reasonable expectation of privacy. See Rakas, 439 U.S. at 143 n.12, 148 (“[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society”; passengers could not establish a reasonable expectation of privacy because they “asserted neither a property nor a possessory interest in the automobile [searched] nor an interest in the property seized”); see also United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001) (“[W]ithout a possessory or property interest in the vehicle searched, passengers lack standing to challenge vehicle searches.”) (internal quotation omitted); Kerr, supra, at 516-19. Other times the Court has considered whether government conduct interfered with social customs and norms and “the everyday expectations of privacy” that a reasonable person would expect to remain hidden. See Minnesota v. Olson, 495 U.S. 91, 98 (1990) (overnight social guest had reasonable expectation of privacy in host’s home; social customs and norms made it reasonable to expect that guest could object to government’s presence at the home); see also United States v. Rhiger, 315 F.3d 1283, 1286-87 (10th Cir. 2003) (social guests have legitimate expectation of privacy in the host’s home); Kerr, supra, at 508-12.
Ultimately, however, Professor Orin Kerr suggests that the first three models are primarily components to be considered in applying the ultimate fourth test. Kerr, supra, at 506. Indeed, seemingly since the advent of the reasonable expectation of privacy test in Katz5 scholars have emphasized that the “‘ultimate question’” of whether a privacy expectation is reasonable “‘is a value judgment.’” 1 LaFave, supra, § 2.1(d), at 443 (quoting Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974)). “‘It is whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.’” Id. (quoting Amsterdam, supra, at 403); see also Sherry F. Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy, 55 Stan. L. Rev. 119, 124 (2002) (arguing that the reasonable expectation of privacy test that determines which police activity is outside the scope of the Fourth Amendment forces the courts to engage in a normative inquiry reflecting social norms).
3. Johnson Did Not Have a Reasonable Expectation of Privacy in a Storage Unit that his Girlfriend Rented with a Stolen Identity
People generally have a reasonable expectation of privacy in a storage unit, because storage units are secure areas that “command a high degree of privacy.” United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir. 1992) (“Common experience of life … [s]urely teaches all of us that the law’s enclosed spaces … are frequently the objects of [our] highest privacy expectations.” (quotation omitted)). And an individual can have a recognized privacy expectation in a storage space even when he or she is not the lessee of the unit. See, e.g., United States v. Johns, 851 F.2d 1131, 1135-36 (9th Cir. 1988) (owner of objects in storage unit on which he paid part of rent had a reasonable expectation of privacy in the unit, even though his name did not appear on the lease); United States v. Chaves, 169 F.3d 687, 690-91 (11th Cir. 1999) (defendant had standing to challenge search of warehouse he did not rent, where defendant possessed the only key to the warehouse and stored personal and business papers there); 6 LaFave, supra, § 11.3(f), at 221 (citing cases).However, the record indicates that Johnson’s rental of the storage unit at issue here was not orthodox. Specifically, Johnson directed Christensen to enter into the rental agreement using Haroldsen’s stolen identity. For several reasons, this fraud convinces us that the reasonableness of any privacy expectations Johnson might have had were undermined by his and Christensen’s decision to use Haroldsen’s identity fraudulently to obtain the unit. [It was identify fraud.]
While some courts have found an expectation of privacy when an individual uses an alias or a pseudonym, see, e.g., United States v. Villarreal, 963 F.2d 770, 774 (5th Cir. 1992) (“[I]ndividuals may assert a reasonable expectation of privacy in packages addressed to them under fictitious names.”), such a situation is distinguishable because it is not necessarily illegal to use a pseudonym to receive mail unless fraud or a stolen identification is involved. Here, however, stolen identification was clearly involved. And because of the potential harm to innocent third parties, there is a fundamental difference between merely using an alias to receive a package and using another’s identity. Indeed, courts have similarly found that a defendant does not have a reasonable expectation of privacy in the contents of property that he had fraudulently purchased using another’s financial information. (bracketed material added)
The Volokh Conspiracy post on the case, by Orin Kerr, here.
