SIXTH CIRCUIT HOLDS PAROLEE HAS NO REASONABLE EXPECTATION OF PRIVACY IN HIS LOCATION

On August 23, 2023, the Sixth Circuit Court of Appeals decided the United States v. Lenhart[i], which is instructive regarding the Fourth Amendment rights of parolees.  The relevant facts of Lenhart are as follows:

In late May 2019, officers from the Northern Ohio Violent Fugitive Task Force sought to locate Lenhart, an Ohio parolee, and execute two outstanding warrants for his arrest. Those warrants stemmed from Lenhart’s (1) failing to charge or physically removing his electronic ankle monitor, leaving his whereabouts unknown to the Ohio Adult Parole Authority, and (2) leading local police on a high-speed chase. Lenhart was last known to be with his girlfriend, Alexa Curtan, at her house in Parma, Ohio.

On May 30, 2019, Parma Police Sergeant Nathan Savetski, a task-force member, spoke with Curtan’s teenage daughter in an effort to find Lenhart. Curtan’s daughter informed Savetski that that she had not seen her mother in two days, which was unusual and concerning. Curtan’s daughter also told Savetski that she believed that her mother was with Lenhart and that they were likely traveling in her mother’s Chevrolet Traverse. Later that day, an acquaintance of Curtan’s informed Savetski that Lenhart and Curtan had been at her residence that morning; they drove Curtan’s Traverse; Lenhart and Curtan were arguing with each other and using drugs; and Lenhart possessed a firearm and verbally threatened Curtan’s safety. Based on this information, the Parma Police Department’s dispatch contacted OnStar to locate Curtan’s Traverse. OnStar provided the task force with a general location for the Traverse. Using this information, the officers located the Traverse in a residential driveway in Cleveland, Ohio. Shortly after locating the vehicle, officers saw Curtan leave the residence, confronted her, and learned that Lenhart was inside the residence. After a standoff, Lenhart surrendered to the officers. Lenhart had two rounds of .38 caliber ammunition in his pocket, and a protective sweep of the residence recovered a .38 caliber firearm.[ii]

Lenhart was ultimately charged under federal law with being a felon in possession of ammunition and firearm. Lenhart filed a motion to suppress and argued that the officer violated his rights under the Fourth Amendment when they obtained the location information from OnStar without a search warrant.  The district court denied his motion and held that a parolee subject to electronic monitoring did not have a reasonable expectation of privacy in his location.  He entered a guilty plea with the right to appeal.

On appeal, he argued that the district court erred in denying his motion to suppress.  The court of appeals first examined the legal principles relevant to Lenhart’s case.  The court stated

[A] person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search.” Byrd v. United States, 138 S. Ct. 1518, 1530, 200 L. Ed. 2d 805 (2018). To have a Fourth Amendment interest—or put another way, to have Fourth Amendment “standing”—the person claiming the constitutional violation needs to have “had a ‘legitimate expectation of privacy in the premises’ searched.” Id. at 1526 (quoting Rakas, 439 U.S. at 143). This legitimate expectation of privacy exists only if “the defendant exhibited an actual subjective expectation of privacy” and “the defendant’s subjective expectation of privacy is ‘one that society is prepared to recognize as reasonable.'” United States v. Gillis, 358 F.3d 386, 391 (6th Cir. 2004) (quoting United States v. Knox, 839 F.2d 285, 293 (6th Cir. 1988)).[iii]

Thus, in order to claim that his rights under the Fourth Amendment were violated by the warrantless tracking of the vehicle in which he was an occupant, Lenhart must demonstrate that he had a reasonable expectation of privacy in his location.  The court stated

The government rightly points out that Lenhart’s status as a parolee reduced his expectation of privacy. See Samson v. Cal., 547 U.S. 843, 855, 126 S. Ct. 2193, 165 L. Ed. 2d 250 (2006) (concluding that parolees have a “substantially diminished expectation of privacy“). Although the Supreme Court has expressly declined to hold that a parolee categorically has no expectation of privacy in any context, see id. at 850 n.2 . . . Lenhart, as a parolee who was subject to electronic monitoring as a condition of his parole, had no reasonable or legitimate expectation of privacy in his location, see United States v. Lambus, 897 F.3d 368, 412 (2d Cir. 2018).[iv]

Thus, the court held that Lenhart, as a parolee, did not have a reasonable expectation of privacy in his location.  Lenhart argued that he restored his reasonable expectation of privacy when he improperly failed to charge or removed his ankle monitor.  The court explained, however, that this just demonstrated that Lenhart had a subjective expectation of privacy, or simply put, a personal belief that his location should be private.  The court of appeals noted that subjective expectation of privacy is not legitimate or reasonable if it stems from doing something illegal, such as failing to charge or removing an ankle monitor.

Therefore, the court of appeals affirmed the denial of the motion to suppress.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 22-3111 (6^th Cir. Decided August 23, 2023 Unpublished)

[ii] Id. at 1-3

[iii] Id. at 4-5 (emphasis added)

[iv] Id. at 5-6 (emphasis added)