IL: The borrower of a car has standing to contest GPS installation

The borrower of a car has standing to contest GPS installation. Even Jones was driving his wife’s car. People v. Leflore, 2013 IL App (2d) 100659, 996 N.E.2d 678 (2013):

[*P17] With respect to standing, the Jones Court emphasized that, although the Jeep was registered to Jones’s wife, the government conceded that Jones was the exclusive driver. Id. at n.2, 132 S. Ct. at 949 n.2. Thus, the Jones Court noted that, “[i]f Jones was not the owner he had at least the property rights of a bailee.” Id. at ___ n.2, 132 S. Ct. at 949 n.2. However, because the government did not challenge the court of appeals’ conclusion that the Jeep’s registration did not affect Jones’s ability to make a fourth amendment objection, the Jones Court did not consider the fourth amendment significance of Jones’s status. Id. at __ n.2, 132 S. Ct. at 949 n.2.

[*P18] Since Jones, other courts have addressed issues similar to the one presented here, i.e., whether, pursuant to Jones’s holding on the property-rights aspect of the fourth amendment, a person can claim the fourth amendment’s protections for a search conducted while he was borrowing another person’s car. In United States v. Batista, No. 5:cr11, 2013 U.S. Dist. LEXIS 28710 (W.D. Va. Feb. 28, 2013), the defendant, Albert Batista, was charged with conspiring to distribute heroin. Id. at *2-3. During the course of the investigation, law enforcement agents learned that Albert and his brother, Alex, were using their vehicles to drive between Pennsylvania and Virginia. Id. at *3. Albert primarily drove a Celica and Alex primarily drove an Intrepid; the Intrepid was registered to their mother and shared by both brothers. Id. at *3, *7. Acting on that information, law enforcement agents placed a GPS tracking device on each of the vehicles. Id. Subsequently, a confidential informant notified law enforcement agents that the brothers would be traveling to Philadelphia, and the GPS indicated that Alex’s Intrepid was driving west from Philadelphia. Id. at *3-4. Law enforcement agents pulled over the Intrepid while Alex was driving and Albert was riding as a passenger. Id. at *4. A subsequent search revealed more than 80 bundles of heroin located on the passenger side, stuffed underneath the dashboard near the glove box. Id.

[*P19] Citing Jones, Albert contended that the warrantless placement of the GPS on the Intrepid constituted a search under the fourth amendment and that as a result, the exclusionary rule should bar all evidence derived from the GPS tracking. Id. at *5. The government countered that Albert lacked standing, arguing that he did not have a reasonable expectation of privacy because he was not the primary driver of the Intrepid, he was merely a passenger in the vehicle at the time of the stop, and he was not in “possession” of the vehicle when law enforcement installed the GPS. Id. at *6-7.

[*P20] The court in Batista phrased the issue as whether Albert “ha[d] standing to challenge both the placement of the GPS tracking device as well as its use.” Id. at *12. With respect to placement, the court concluded that Albert had a reasonable expectation of privacy when the GPS was placed on the Intrepid, because Albert was in possession of that vehicle at the time. Id. The court noted that the government could establish that Alex, the purported primary driver of the Intrepid, drove that vehicle only five times, and therefore it was reasonable to infer that Albert also drove the Intrepid “from the fact that the Intrepid was parked at [Albert’s] apartment late at night when the GPS was installed.” Id. at *13. The court further emphasized that the fact that the Intrepid was parked at Albert’s apartment complex showed that Albert had a possessory interest. Id. at *13-14. The court rejected the government’s argument that Alex could have merely been visiting Albert when the device was installed, noting that a GPS device was placed on the Celica that same night, and at a poultry plant where Alex worked. Thus, the court concluded that “[a]lthough the issue is a close one, it is reasonable to conclude that at the time of the placement of the GPS tracking device, [Albert] was in possession of the Intrepid.” Id. at *14.