CA7: A defendant violating parole doesn’t lack all standing just because he crosses a state line violating his parole

A defendant violating parole doesn’t lack all standing just because he crosses a state line violating his parole. United States v. Walton, 2014 U.S. App. LEXIS 15570 (7th Cir. August 13, 2014):

1. Expectation of Privacy as a Parolee

The government rightly points out that Walton’s expectation 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 purpose 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 analysis.”) (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 violate the Fourth Amendment. But the Court never held that the petitioner or any other parolee lacked standing to challenge 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 asserts that Walton lacked a subjective expectation of privacy because he knew that he was violating parole by leaving 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 government’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 regime, any parole search that uncovered a violation, even if it were conducted at random and based on no suspicion whatsoever, 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 astonishing proposition, because there is none. In fact, the Third Circuit 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 defendant of a chance to challenge the reasonableness of the search.

Walton’s behavior is also entirely consistent with his subjective belief that he had a reasonable expectation of privacy in the vehicle despite his parole violation. He rented the vehicle 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 object to a search of the car “and its occupants.”). Walton’s subjective expectation of privacy was not defeated by his knowing parole violation.