{"id":4183,"date":"2010-06-22T15:01:06","date_gmt":"2010-05-17T00:51:53","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-05-16T16:31:53","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4183","title":{"rendered":"CA7: Denial of \u00a7 2255 reversed where defense counsel failed to recognize standing in a borrowed car"},"content":{"rendered":"

District Court’s denial of defendant’s \u00a7 2255 was reversed. Defense counsel’s choice to waive the motion to suppress because defendant was a borrower of the car he was driving was unreasonable because defendant showed that he had a reasonable expectation of privacy in the car. Johnson v. United States<\/a>, 604 F.3d 1016 (7th Cir. 2010):<\/p>\n

It is well-established that a driver of a borrowed vehicle may establish a reasonable expectation of privacy in a vehicle even though that driver is not the owner of the vehicle. See United States v. Garcia<\/a>, 897 F.2d 1413, 1418-19 (7th Cir. 1990); United States v. Thomas<\/a>, 447 F.3d 1191, 1197-98 (9th Cir. 2006); United States v. Soto<\/a>, 988 F.2d 1548, 1553 (10th Cir. 1993); United States v. Miller<\/a>, 821 F.2d 546, 548-49 (11th Cir. 1987). In determining whether such a non-owner may claim a privacy interest in a car that he is driving, courts consider two factors: whether the driver manifested a subjective expectation of privacy in the area searched; and whether that expectation of privacy is one that society would find objectively reasonable. United States v. Amaral-Estrada<\/a>, 509 F.3d 820, 826-27 (7th Cir. 2007). Courts have repeatedly recognized the right of a driver to assert a Fourth Amendment right to be free from unreasonable searches of a vehicle where the driver is operating that vehicle with the permission of the owner. Garcia, 897 F.2d at 1418-19; Soto, 988 F.2d at 1553; Miller, 821 F.2d at 548-49; see also Thomas, 447 F.3d at 1197-98 (holding that even a driver not listed as an authorized driver for a rental car could nevertheless have an expectation of privacy if given permission to use the car by an authorized driver). In lawfully possessing and controlling the car, the driver has the right to exclude others which corresponds with an expectation of privacy. Similar to an owner driving the car, the authorized driver may have an expectation of privacy in that circumstance. The inquiry is a fact specific one, however, because as we recognized in Amaral-Estrada, some facts may eviscerate any implication of a subjective expectation of privacy. In that case, Amaral-Estrada was operating the car for the purpose of transporting contraband such as U.S. currency, and his expectation was that others would enter the car, taking and leaving items therein. Amaral-Estrada, 509 F.3d at 826-27. In those circumstances, there was no subjective expectation of privacy and therefore he could not challenge the search of the vehicle. Id.<\/p>\n

As the driver of the vehicle borrowed from his relative, Johnson could have sought to establish that he had a reasonable expectation of privacy in the vehicle and that the search violated the Fourth Amendment. The facts relating to this issue are of course scarce in the record, because it was never explored at trial. Nevertheless, those facts that are present do nothing to cast doubt on the existence of that reasonable expectation of privacy and in fact support a finding that Johnson exercised possession and control of the vehicle in a manner establishing an objectively reasonable expectation of privacy. The evidence indicates that Johnson borrowed the vehicle from a relative and that he was the driver and sole occupant of the vehicle during the relevant time period. There is no indication that he opened the vehicle to general access by other individuals such as would defeat that expectation of privacy.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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