Facts
Caleb Parkerson was sleeping in a tent under a San Antonio overpass where there were other unhoused persons. The property belongs to the Texas Department of Transportation and is marked with numerous “No Trespassing” signs. The San Antonio Police Department regularly conducts “cleanups” of these encampments and arrests anyone who has previously been warned to leave.
One or two days prior to a cleanup, police officers visit the encampments to notify the campers. During one such visit, an officer lifted the unzipped flap of the tent where Parkerson was sleeping. The officer found Parkerson sleeping on a mattress with a gun beside him in plain sight. The officer identified Parkerson as having several active arrest warrants and arrested him.
Parkerson, who already had a felony criminal record, was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(d)(1). Before pleading guilty, Parkerson moved to suppress evidence obtained through the search of his tent, including the gun. The district court denied the motion, holding that “Parkerson had no expectation of privacy that society is willing to recognize as reasonable or legitimate.” Parkerson timely appealed. The 5th affirmed.
Analysis
A “search” for purposes of the Fourth Amendment occurs only when (1) the individual has exhibited an actual (subjective) expectation of privacy and (2) that expectation is one that society is prepared to recognize as reasonable. See SCOTUS Smith v. Maryland, 442 U.S. 735 (1979).
Even assuming that Parkerson had a subjective expectation of privacy here, we conclude that expectation was not reasonable. The Supreme Court has not directly addressed whether a trespasser may have a reasonable expectation of privacy, but it has indicated that the answer is no. In Rakas v. Illinois, the Court restated the principle that “ʻwrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. 439 U.S. 128 (1978). For example, a burglar’s expectation of privacy is not one that society is prepared to recognize as reasonable.
A trespasser does not have property rights in the place where he is trespassing, and society does not recognize a reasonable expectation of privacy there. Therefore, we apply this rule here and hold that Parkerson did not have a reasonable expectation of privacy. Parkerson was a trespasser on property owned by the Texas Department of Transportation—a fact Parkerson was made aware of by multiple “No Trespassing” signs. In light of these facts, we see no basis upon which any expectation of privacy would be reasonable, as both property law and the understandings of society support the opposite.
That Parkerson may have thought he was using a tent as a residence does not overcome the requirement for an objectively reasonable expectation of privacy, particularly because he was well aware that he did not have any right to be where he was.
A Fourth Amendment search does not occur—even when the explicitly protected location of a house is concerned—unless the individual manifested a subjective expectation of privacy . . . and society is willing to recognize that expectation as reasonable.
Even if Parkerson was using the tent as a residence and thus had a subjective expectation of privacy, that expectation was not objectively reasonable. Therefore, the Fourth Amendment is not implicated, and the district court did not err in denying Parkerson’s motion to suppress.
https://www.ca5.uscourts.gov/opinions/unpub/24/24-50827.0.pdf