Whether a passenger in a borrowed vehicle who has the owner's permission to use the car retains a Fourth Amendment privacy interest even when not driving and unable to produce identification at the time of a warrantless search

No question identified. : 2 jurisdiction would be invoked under 28 U.S.C. § 1254(1). Without an extension, the time for Mr. Rogers to petition for a writ of certiorari would expire on Thursday, September 12, 2024. This application is being filed more than 10 days before that date. A jury convicted Mr. Rogers of certain drug and firearm related offenses, and he challenged his convictions on the ground that key evidence collected from his girlfriend’s car violated his Fourth Amendment rights. The Fourth Amendment claims arose from a warrantless search conducted in January 2020, when police found Rogers sitting in the passenger seat of his girlfriend’s car, while lawfully and safely parked on a residential street. Slip Op. 2. Police approached him to ask about an unrelated incident elsewhere on the block. Rogers rolled down his window “a few inches” to respond to an officer’s initial questions, and told police the car belonged to his girlfriend, and that he did not have identification with him. D.Ct. R.41, Opinion, pgID.215-216. After officers determined that Rogers had an outstanding warrant and wanted to “check” him, Rogers “asked to get out of the car” so they could do so. Ibid. Police promptly handcuffed and secured Rogers in the back of a police cruiser. Apparently confused about the basis for his detention, Rogers “complained that he had not been driving.” Id. at pgID.216. The officers took the keys from Rogers and searched the car, where they found marijuana and a gun. Id. at pgID.217. Before trial, Rogers moved to suppress the results of the search. The district court denied the motion, reasoning that Rogers was “neither the owner . . . nor the driver” of the car, and stated (incorrectly) that there was “no evidence” that Rogers 3 had “permission from the owner to use the vehicle or be present in it.” Id. at pgID.219-220. “Wrongful” presence, the district court reasoned, does not allow a defendant to challenge a search. Ibid. After a trial where the government relied on the fruits of the search, a jury convicted Rogers on several counts stemming from the drugs and firearm. Slip Op. 3. On appeal, the government ultimately conceded that record evidence showed Rogers had his girlfriend’s permission to use her car at the time of the search, as he “often” did. Slip Op. 6; id. at 10 (Stranch, J., dissenting); accord C.A. ECF 64 (6th Cir. Dec. 4, 2023) (quoting D.Ct. R.22-1, Suppression Mot. Exhibits, PageID.79). A divided panel of the Sixth Circuit, however, held that that Rogers “never exhibited a subjective expectation of privacy” in the car, because he “was neither [the] owner nor driver,” could not produce a license at the time of the search, and did not show “dominion and control.” Slip Op. 4. The majority concluded that Rogers had “disclaimed” any privacy interest by “accurately inform[ing] the police” that his girlfriend owned the car, and that he “wasn’t even driving,” and failing to produce identification. Id. at 5. In so doing, the majority appeared to suggest that because Rogers was not driving , he lacked “complete dominion and control” over the car. Ibid. Judge Stranch dissented, emphasizing longstanding precedent holding that “one who borrows a vehicle and stores personal belongings in it has a legitimate expectation of privacy in the car and its contents,” even if the person is not driving. Slip Op. 9 (Stranch, J., dissenting) (cleaned up). Given that Rogers used his girlfriend’s car “often,” rolled down his tinted window only a few inches when first 4 approached, and closed the window before stepping out of the car, it was “unclear . . . how Rogers could have done more to exhibit an expectation of privacy in the vehicle.” Id. at 10, 12. In Judge Stranch’s view, Rogers’ statements that he did not own the car and had not been driving did not abandon his privacy interest. Id. at 13. After surveying decisions from circuit courts and this Court, Judge Stranch explained that the majority’s holding is “incompatible w