                       FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                     No. 18-10341
           Plaintiff-Appellee,
                                                D.C. No.
                  v.                      2:16-cr-00231-RFB-1

 JAY YANG,
        Defendant-Appellant.                     OPINION

        Appeal from the United States District Court
                 for the District of Nevada
      Richard F. Boulware II, District Judge, Presiding

         Argued and Submitted November 12, 2019
                 San Francisco, California

                        Filed May 4, 2020

Before: Carlos T. Bea and Kenneth K. Lee, Circuit Judges,
        and Lawrence L. Piersol, * District Judge.

                   Opinion by Judge Piersol;
                   Concurrence by Judge Bea




     *
       The Honorable Lawrence L. Piersol, United States District Judge
for the District of South Dakota, sitting by designation.
2                   UNITED STATES V. YANG

                          SUMMARY **


                          Criminal Law

    The panel affirmed the district court’s denial of a
suppression motion in a case in which the defendant entered
a conditional guilty plea to receipt of stolen mail and being
a prohibited person in possession of a firearm.

    After the defendant was observed on surveillance
cameras driving a rented GMC Yukon and stealing mail out
of post office collection boxes, a Postal Inspector located the
defendant at his residence, and the Yukon, by inputting the
Yukon’s license plate number into a license-plate location
database, which receives license plate images and the GPS
coordinates from digital cameras mounted on tow truck,
repossession company, and law enforcement vehicles.

    The defendant moved to suppress the evidence seized
from his residence and the statements he made to law
enforcement on the basis that the automatic license plate
recognition technology used by the Postal Inspector without
a warrant violated his Fourth Amendment right to privacy in
the whole of his movements under Carpenter v. United
States, 138 S. Ct. 2206 (2018).

    The panel held that the defendant did not have a
reasonable expectation of privacy in the historical location
data of the rental vehicle after failing to return it by the
contract due date, where there was no policy or practice of

    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 UNITED STATES V. YANG                    3

the rental company permitting lessees to keep cars beyond
the rental period and simply charging them for the extra
time. The panel concluded that the defendant therefore
lacked standing to challenge the warrantless search of the
database.

    Judge Bea concurred in the judgment. He disagreed with
the majority’s holding that because the defendant’s lease on
the Yukon had expired when its license plate was
photographed by the automatic license plate reader, he has
not alleged a violation of his reasonable expectation of
privacy and therefore lacks standing to challenge the
warrantless search of the database. He would affirm on the
grounds that the search of the database did not reveal the
whole of the defendant’s physical movements, and therefore
did not infringe on that reasonable expectation of privacy.


                       COUNSEL

Cristen C. Thayer (argued), Assistant Federal Public
Defender; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Defendant-Appellant.

Nancy M. Olson (argued) and Phillip N. Smith Jr., Assistant
United States Attorneys; Elizabeth O. White, Appellate
Chief; Nicholas A. Trutanich, United States Attorney;
United States Attorney’s Office, Las Vegas, Nevada; for
Plaintiff-Appellee.

Jennifer Lynch and Andrew Crocker, Electronic Frontier
Foundation, San Francisco, California; Nathan Freed
Wessler and Brett Max Kaufman, American Civil Liberties
Union Foundation, New York, New York; Jennifer S.
4                 UNITED STATES V. YANG

Granick, American Civil Liberties Union Foundation, San
Francisco, California; Amy M. Rose, American Civil
Liberties Union of Nevada, Las Vegas, Nevada; for Amici
Curiae Electronic Frontier Foundation, American Civil
Liberties Union, and American Civil Liberties Union of
Nevada.


                         OPINION

PIERSOL, District Judge:

    In April 2016, Defendant Jay Yang was observed on
surveillance cameras driving a rented GMC Yukon and
stealing mail out of collection boxes at the Summerlin Post
Office in Las Vegas, Nevada. When U.S. Postal Inspector
Justin Steele spoke with representatives of Prestige Motors,
from which Yang rented the Yukon, he was informed that
the vehicle was approximately six days overdue and that
Prestige had attempted to repossess the vehicle by activating
its Global Positioning System unit (“GPS”) and remotely
disabling the vehicle. Inspector Steele was also informed
that the vehicle was not at the location indicated and that the
GPS unit was no longer functioning, apparently having been
disabled by a third party.

    Two days later, Inspector Steele queried the largest
license plate-location database in the country, operated by a
private company called Vigilant Solutions, with hopes of
locating the Yukon and Yang. This database receives license
plate images and GPS coordinates from digital cameras
mounted on tow truck, repossession company, and law
enforcement vehicles. These camera-mounted vehicles
photograph any license plate they encounter while driving
around in the course of business. The Automatic License
                  UNITED STATES V. YANG                      5

Plate Recognition (“ALPR”) technology loaded on a laptop
inside the camera-mounted vehicles interprets the
alphanumeric characters depicted on the plate into machine-
readable text and records the latitude and longitude of a
vehicle the moment it photographs a license plate. The
software also generates a range of addresses estimated to be
associated with these GPS coordinates. This information is
uploaded to the database and is searchable by law
enforcement agencies that pay a subscription fee.

    In December 2016, there were approximately 5 billion
license plate scans and associated data stored in the database.
The database continues to grow as these camera-mounted
vehicles go about their daily business capturing images and
location data at thirty frames per second, and as the use of
these cameras and technology becomes more ubiquitous. It
was estimated that as of March 2019, the database contained
over 6.5 billion license plate scans and affiliated location
data.

    When Inspector Steele inputted the license plate number
for the Yukon in the LEARN database, his query revealed
that it had been photographed on April 5, 2016, at
approximately 11:24 p.m., after the deadline to return the
Yukon had passed. Inspector Steele promptly proceeded to
the gated condominium complex that had been identified by
the ALPR software as most closely associated with the GPS
coordinates of the repossession vehicle at the time it
photographed the Yukon’s plate. In short order, Inspector
Steele located Yang at his residence as well as the Yukon.
After further investigation and visual surveillance, Inspector
Steele obtained a warrant to search Yang’s residence. There,
he found devices known to be used for stealing mail out of
mailboxes, numerous pieces of stolen mail, and a Phoenix
Arms model HP22 pistol. After waiving his Miranda rights,
6                UNITED STATES V. YANG

Yang spoke to law enforcement and admitted to stealing
mail from collection boxes in the area and to owning the
firearm.

    Yang moved to suppress the evidence seized from his
residence and the statements he made to law enforcement on
the basis that the search warrant obtained by the Postal
Inspection Service relied on evidence that was obtained
illegally. Yang argues that the ALPR technology used by
Inspector Steele without a warrant to track and locate Yang
at his residence violated his Fourth Amendment right to
privacy on the whole of his movements under Carpenter v.
United States, 138 S.Ct. 2206 (2018)—a decision issued by
the Supreme Court after Yang’s motion to suppress was
denied.

    We have jurisdiction under 28 U.S.C. § 1291 and affirm
the district court’s decision denying Yang’s motion to
suppress.      We do not address the potential Fourth
Amendment privacy interests that may be implicated by the
warrantless use of this ALPR technology because we
conclude that Yang does not have a reasonable expectation
of privacy in the historical location data of the Yukon under
the facts of this case.

    FACTUAL AND PROCEDURAL BACKGROUND

I. Warrant and Search

    In April of 2016, the U.S. Postal Inspection Service
received information that mail theft was occurring at the
Summerlin Post Office located in Las Vegas, Nevada. On
April 6, 2016, Postal Inspector Steele obtained video footage
from surveillance cameras at the Summerlin Post Office
which showed a person engaging in “fishing”—a method of
stealing mail from a mailbox in which an individual lowers
                 UNITED STATES V. YANG                     7

an object—which usually has adhesive or some grasping
mechanism—into the box and then retrieves mail from the
box by pulling it out with this object.

    The surveillance footage showed that on April 5, 2016,
at 2:17 AM, a slim Asian or white male with short hair exited
a dark colored GMC Yukon (“Yukon”) and placed a fishing
device into the collection box. Although the April 5th
surveillance footage showed the individual losing his fishing
device in the collection box prior to removing mail,
surveillance video on April 6, 7 and 8, 2016, showed the
same individual exit the Yukon and use a fishing device to
remove mail from the collection box. The surveillance video
did not capture a discernable license plate for the Yukon on
those days.

    On April 7, 2016, afternoon surveillance video from the
Summerlin Post Office revealed another vehicle, a Budget
rental truck with Oklahoma license plate 2QD483 (“Budget
Truck”), with what appeared to be the same driver as that of
the Yukon on the previous days. On this day, the driver
again was observed on the video engaging in fishing activity
with a collection box.

    On April 9, 2016, the Yukon was again observed on
surveillance video with the same driver engaging in
“fishing” activities as seen on the previous days. On this
day, the license plate for the Yukon was viewable and was
identified as California license plate 7RIV310.

    On April 11, 2016, Inspector Steele conducted a DMV
records check for the Yukon and its license plate number and
learned that the vehicle was registered to Prestige Motors, a
car rental company located in Las Vegas, Nevada. That
same day, Inspector Steele visited Prestige Motors to obtain
additional information. There, he learned that the Yukon
8                 UNITED STATES V. YANG

had been reserved and rented on a third-party website by Jay
Yang. The contract rental period began on April 2, 2016,
and the vehicle was due back on April 5, 2016, at 10:48 a.m.,
but had not yet been returned. The credit card used to
complete the transaction was subsequently revealed to be
stolen.

    Inspector Steele testified at the suppression hearing that
Prestige had attempted to repossess the vehicle by activating
its GPS unit and remotely disabling the vehicle. Inspector
Steele was also informed that the vehicle was not at the
location indicated by the GPS unit and that the GPS unit was
no longer functioning, apparently having been disabled by a
third party. Although a representative of Prestige Motors
stated that Prestige considered the vehicle to be stolen,
Prestige had not filed a stolen vehicle report with the police.

    On April 12, 2016, Inspector Steele contacted Budget
Truck Rental (“Budget”) and obtained the rental information
for the Budget Truck that had been viewed in the
surveillance video on April 7, 2016. Inspector Steele was
informed that the Budget Truck had been rented to Jay Yang
on March 14, 2016, and had not been returned by the contract
due date on March 16, 2016.

    On April 13, 2016, Inspector Steele requested a vehicle
detection report for the Yukon through a license plate-
location database called LEARN. The LEARN database
was created and is maintained by a private company named
Vigilant Solutions. The LEARN database receives license
plate images from digital cameras mounted on tow truck,
repossession company and law enforcement vehicles. These
camera-mounted vehicles photograph at thirty frames per
second any license plate they encounter while driving around
in the course of business. ALPR technology loaded on a
laptop inside the camera-mounted vehicles interprets the
                  UNITED STATES V. YANG                     9

alphanumeric characters depicted on the plate into machine-
readable text and records the latitude and longitude of a
vehicle the moment it photographs a license plate. The
software also generates a range of addresses estimated to be
associated with these GPS coordinates. This information is
uploaded to and stored in the database for years after its
collection, and is searchable by law enforcement and
government agencies that pay a subscription fee.

     The LEARN database receives about thirty-five percent
of its images from law enforcement vehicle cameras and the
remaining sixty-five percent of its images from commercial
vehicle cameras. Access to the LEARN database is limited
to law enforcement subscribers. The Postal Inspection
Service has a user access subscription to the LEARN
database, but does not contribute any images to the database.
There is a companion database used by commercial clients,
but this database only contains information obtained from
commercial vehicles, not law enforcement vehicles. All
commercial scans and attendant location information are
transferred to the LEARN database and law enforcement has
access to those commercial scans.

    At the suppression hearing, Mr. Hodnett, president of the
holding company of Vigilant Solutions, testified that there
were approximately 5 billion license plates scans and
affiliated location data stored in LEARN’s database and that
on average, the license plate for any particular vehicle is
scanned and uploaded to the database approximately four
times per year. Inspector Steele testified that his queries of
the LEARN database have sometimes produced one record,
sometimes twenty, and sometimes none at all. While there
was no evidence in the record that definitively established
how long scans and location data are retained in the LEARN
database, Inspector Steele testified that vehicle detection
10                  UNITED STATES V. YANG

reports he has received from the database, have returned
records “go[ing] back years.”

    The LEARN database continues to grow. The amici
brief noted that as of March 2019, it was estimated that the
company’s commercial database alone had grown to include
over 6.5 billion license plate scans.

    The LEARN database also maintains license plate
numbers of vehicles that have been reported stolen and those
reported as being associated with a crime. Users can receive
real-time alerts when a license plate number has been
captured that matches one of those flagged in the database as
being associated with a crime. In addition, the database
permits subscribers to search for license plate numbers
captured within a certain time period and radius of where a
crime occurred.

    The vehicle detection report 1 that Inspector Steele
obtained on April 13, 2016, for the license plate associated
with the Yukon showed the images of the license plate that
had been captured and the software’s first and second best
interpretations of the alphanumeric characters on the license
plate, 7RIV310, RIV310. The vehicle detection report
showed that the images were captured on April 5, 2016,
around 11:24 p.m. and identified the latitude and longitude
of the camera-mounted vehicle 2 at the time it took the
photographs. The database generated a range of addresses,
7810–7898 Tenshaw Ave., that were estimated to be

     1
      As the district court had noted, there are actually two detection
reports based on two images that had been captured of the license plate
approximately a second apart.
    2
      The images of the Yukon in the vehicle detection report had been
taken by a commercial repossession vehicle.
                  UNITED STATES V. YANG                    11

associated with the GPS coordinates in the report and
identified the nearest intersection as being Tenshaw Avenue
and Devonhall Street.

     On April 13, 2006, the same day that Inspector Steele
obtained the vehicle detection report, he went to the area of
Tenshaw Avenue where the repossession company captured
images of the Yukon’s license plate on April 5, 2006.
Tenshaw Avenue is located within a large, gated
condominium complex. To get to Tenshaw Avenue,
Inspector Steele testified at the suppression hearing that he
had to enter through the condominium complex’s security
gate using his law enforcement-issued transponder to open
the gate. Once he passed beyond the gate, he had to make a
left turn at the beginning of the complex, another right turn,
and then a little left turn to arrive at Tenshaw Avenue. Once
on Tenshaw Avenue, Inspector Steele observed the Yukon
parked in a general community parking lot within the gated
condominium complex. Inspector Steele testified that he
would not have been able to see the Yukon from the entrance
of the complex.

    During Inspector Steele’s first visit to the condominium
complex, he spoke with a Postal Service letter carrier for the
complex and learned that an Authorization to Hold Mail was
in place as of April 5, 2016, with no listed end date, for Jay
Yang at 7821 Tenshaw Ave. Unit #103, Las Vegas, Nevada
89145. As Inspector Steele left the area of 7821 Tenshaw
Avenue on April 13, 2016, he observed the Budget Truck
used for fishing mail on April 7, 2016, parked just outside of
the area and across the street. Inspector Steele was able to
observe, in plain view on the dashboard of the Budget Truck,
fishing devices consistent with what he observed were used
on the surveillance video.
12               UNITED STATES V. YANG

   Inspector Steele also obtained subscriber information
from the local utility, NV Energy, for 7821 Tenshaw Ave.
Unit #103. The subscriber information indicated that the
power was turned on by “Jay Yang.”

    On April 19, 2006, Inspector Steele observed that Budget
had taken repossession of the Budget Truck.             The
repossession company allowed Inspector Steele to look into
the cab of the Budget Truck from the sidewalk with the doors
open and he was able to observe fishing devices in the
vehicle.

    On April 25, 2016, Inspector Steele and Postal Inspector
Hudson (“Inspector Hudson”) engaged in a ruse by
attempting to deliver a package to a fictitious person at
7821 Tenshaw Ave. Unit #103. Inspector Hudson knocked
on the door and it was answered by a male who identified
himself as “Jay Yang.”

    On May 6, 2016, a search warrant was served on the
residence of 7821 Tenshaw Ave. Unit #103. Yang, along
with three other individuals, were present at the residence
when the search warrant was executed. Therein, law
enforcement found fishing devices, numerous pieces of
stolen mail, and a Phoenix Arms model HP22 pistol. Yang
waived his Miranda rights and agreed to speak to law
enforcement.        During his conversation with law
enforcement, Yang admitted to fishing from collection boxes
in the area, including the collection boxes at the Summerlin
Post Office, and stated that he used devices like those found
at his residence to steal mail. Yang also admitted to owning
the firearm that was recovered from his bedroom.

   On May 6, 2016, Inspector Steel contacted Prestige
Motors to notify them about the location of the Yukon.
Representatives of Prestige came to 7821 Tenshaw to
                 UNITED STATES V. YANG                    13

repossess the vehicle. Prestige opened the doors of the
vehicle and allowed contractors for the Postal Inspection
Service to take pictures of the interior and Prestige Motors
cleared the vehicle of its contents.

II. Suppression Motion

    In July 2016, a federal grand jury in the District of
Nevada returned an indictment against Yang, charging him
with receipt of stolen mail in violation of 18 U.S.C. § 1708,
and being a prohibited person in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In
October 2016, Yang moved to suppress the evidence seized
from his apartment and the statements he made to law
enforcement on the basis that the search warrant obtained by
the Postal Inspection Service relied on evidence that was
obtained illegally. Yang argued that the ALPR technology
used by Inspector Steele without a warrant to track and
locate the Yukon within Yang’s gated condominium
complex constituted a “search” under the Fourth
Amendment. The suppression motion was fully briefed by
the parties.

   The district court held an evidentiary hearing over the
course of three days in December 2016 and January 2017,
and the parties filed supplemental briefs in May 2017.

    On November 20, 2017, the district court orally denied
Yang’s motion to suppress and issued its written order on
January 25, 2018. In its written order denying Yang’s
motion, the district court held that there was no common-law
trespass because: 1) the Yukon’s license plate and associated
location was only captured when the vehicle traveled on
public streets; 2) no officer placed any device on the Yukon
or used technology targeting the Yukon which would permit
law enforcement officers to peer into areas thought to be
14                UNITED STATES V. YANG

private by Yang or others; and 3) Yang did not have a
reasonable expectation of privacy in the observation of the
license plate of the vehicle he was driving on public streets.
The district court also held that no “electronic trespass” had
taken place that might implicate a reasonable expectation of
privacy because: 1) the location information was not
generated by Yang electronically or digitally surrendering
private or confidential information to a third-party working
in cooperation with law enforcement; 2) the location
information for the Yukon was not identified by use of any
invasive digital technology regarding its whereabouts or
those of Yang; and 3) the location information was obtained
through random observations recorded on public streets.

    In April 2018, Yang pleaded guilty to the charged
offenses, reserving the right to appeal the district court’s
denial of his motion to suppress. The district court accepted
Yang’s conditional plea and sentenced Yang to 35 months in
prison and three years of supervised release. Yang timely
appealed.

                STANDARD OF REVIEW

    A district court’s denial of a motion to suppress is
reviewed de novo, while the factual findings underlying the
denial of the motion are reviewed for clear error. United
States v. Gust, 405 F.3d 797, 799 (9th Cir. 2005). “Whether
or not an individual’s expectation of privacy was objectively
reasonable is also reviewed de novo.” Id. (quoting United
States v. Bautista, 362 F.3d 584, 589 (9th Cir. 2004)).

                        ANALYSIS

    The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.” U.S.
                  UNITED STATES V. YANG                    15

Const. amend. IV. “The Fourth Amendment does not
proscribe all state-initiated searches and seizures; it merely
proscribes those which are unreasonable.” Morgan v. United
States, 323 F.3d 776, 780–81 (9th Cir. 2003) (quoting
Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Generally,
“searches conducted outside the judicial process, without
prior approval by judge or magistrate, are per se
unreasonable under the Fourth Amendment—subject only to
a few specifically established and well-delineated
exceptions.” See Arizona v. Gant, 556 U.S. 332, 338 (2009)
(quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

    Whether an individual has a Fourth Amendment privacy
interest normally embraces two questions. Bond v. United
States, 529 U.S. 334, 338 (2000). “First, we ask whether the
individual, by his conduct, has exhibited an actual
expectation of privacy; that is, whether he has shown that ‘he
[sought] to preserve [something] as private.’” Id. (quoting
Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal
quotation marks omitted)). “Second, we inquire whether the
individual’s expectation of privacy is ‘one that society is
prepared to recognize as reasonable.’” Id. (quoting Smith,
442 U.S. at 740).

    The burden of proof is on a defendant to demonstrate that
he has a reasonable expectation of privacy in the subject of
the Government’s warrantless search. See United States v.
Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005).

I. Did Yang have a reasonable expectation of privacy in
   his movements as revealed by the historical location
   data of a rental vehicle that was not returned by the
   rental contract due date?

    The Government argues that Yang does not have a
reasonable expectation of privacy in the historical location
16                    UNITED STATES V. YANG

information of the Yukon because at the time the
Government queried the LEARN database, the Yukon was
approximately eight days overdue and Prestige Motors had
attempted to repossess the vehicle by activating the vehicle’s
GPS unit and remotely disabling the vehicle. 3 The
Government correctly framed its argument as an issue
regarding the defendant’s standing to challenge the alleged
search in this case. See United States v. Taketa, 923 F.2d
665, 669–70 (9th Cir. 1991) (“[T]o say that a party lacks
fourth amendment standing is to say that his reasonable
expectation of privacy has not been infringed.”).

    While the mere expiration of the rental period does not
automatically end a lessee’s expectation of privacy, see
United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001),
we conclude that Yang has failed to establish that he has a
reasonable expectation of privacy in the historical location
information of the Yukon under the facts of this case. There
is no evidence in the record that Prestige Motors had a policy
or practice of allowing lessees to keep cars beyond the rental
period and Prestige had made affirmative attempts to
repossess the vehicle by activating the GPS unit to locate and
disable the vehicle. In so holding, we find instructive our
decisions in United States v. Dorais and United States v.
Henderson, 241 F.3d 638 (9th Cir. 2000) which both analyze


     3
       The district court made no findings of fact regarding the attempts
by Prestige Motors to repossess the vehicle, but concluded that “Yang
did not have a right to be in possession of the vehicle . . . as he had not
returned it pursuant to the Rental Agreement.” Inspector Steele testified
at the suppression hearing that he had been informed by Prestige Motors
that when the GPS system in a vehicle is activated, it disables the vehicle.
However, when Prestige Motors activated the GPS unit on the Yukon,
the vehicle was not at the location indicated and the GPS unit was no
longer functioning, apparently having been disabled by a third party.
                  UNITED STATES V. YANG                     17

a lessee’s expectation of privacy in rental property after the
expiration of the rental period.

   A. Applicable Caselaw

    In United States v. Dorais, police were informed by the
hotel manager of suspicious activity occurring in the room
occupied by defendants. 241 F.3d at 1126. Although the
manager was not informed that the occupants were subjects
of a drug investigation, he was told to call the police if he
noticed further suspicious activity. Id. at 1126–27. At
10 a.m. on the day of checkout, the hotel left a message on
the voicemail of the defendants’ room, reminding them of
the noon checkout time. Id. at 1127. Although one
defendant left the room before noon, the other defendant
remained in the room beyond checkout time. Id. Shortly
after noon, a housekeeper inquired when the remaining
defendant would be checking out and was informed by the
remaining defendant that he intended to check out at 12:30.
Id.

    Around noon, police officers inquired of the hotel
manager whether the defendants had checked out. Id. The
officers were informed that guests still remained in the room
and that the manager wished to evict them if they stayed past
the noon checkout time. Id. At approximately 12:40, the
hotel manager, accompanied by six officers, knocked on the
door and told the defendant that he was there to evict him.
Id. When the defendant opened the door, he was informed
by an officer that the police would assist in the eviction. Id.
When the officers entered the room, they saw a substance on
the coffee table that resembled methamphetamine and
arrested the defendant. Id. A pat-down search incident to
arrest yielded a substance resembling crystal
methamphetamine. Id.
18                UNITED STATES V. YANG

    In evaluating whether the defendants maintained a
reasonable expectation of privacy in the hotel room at the
time of the search, the court in Dorais examined two cases
from the Tenth and Fourth Circuits, as well as our decision
in United States v. Henderson, 241 F.3d 638 (9th Cir. 2000).
In United States v. Owens, the Tenth Circuit held that the
defendant maintained a reasonable expectation of privacy in
his motel room although the checkout time had expired.
782 F.2d 146, 150 (10th Cir. 1986). There, after police
arrested the defendant, they informed the motel manager of
the arrest and told the manager that an occupant remained in
the defendant’s room. Id. at 148. The police were told that
the rental period on the room had expired and the manager
authorized officers to evict the remaining occupant who was
not listed on the rental agreement. Id. at 148–49. Officers
then entered the room and found white powder and drug
paraphernalia in plain view. Id. at 149.

    The court in Owens concluded that the defendant had a
reasonable expectation of privacy in his hotel room even
though the search occurred after the rental period had
expired. Id. at 150. We noted in Dorais that the Owens court
primarily based its conclusion on three factors. Id. First,
when the defendant in Owens had stayed past checkout time
prior to the search, instead of evicting him, the hotel
permitted him to extend his stay and pay for the additional
term of occupancy. Dorais, 241 F.3d at 1129 (citing Owens,
782 F.2d at 150). Second, the hotel manager in Owens
testified that it was the motel’s policy not to evict guests who
were staying past checkout time for brief periods, but to ask
them whether they would be leaving or extending their stay.
Id. (citing Owens, 782 F.2d at 150). Third, the defendant
had given a large cash deposit, which, the court found, may
have led him to believe that he was paid up through the rest
of the week. Id. (citing Owens, 782 F.2d at 150).
                     UNITED STATES V. YANG                          19

    In contrast to Owens, we observed in Dorais that in
United States v. Kitchens, the Fourth Circuit held that the
defendants’ expectation of privacy in their hotel room had
expired at checkout time. Dorais, 241 F.3d at 1129 (citing
Kitchens, 114 F.3d 29, 32 (4th Cir. 1997)). The court in
Kitchens acknowledged that “[a] guest may still have a
legitimate expectation of privacy even after his rental period
has terminated, if there is a pattern or practice which would
make that expectation reasonable.” Kitchens, 114 F.3d at 32
(citations omitted). However, the court found that the
defendants did not have a pattern or practice of staying past
checkout time and that the hotel had a strict policy of
enforcing checkout times. 4 Id. As a result, the court
concluded that defendants’ reasonable expectation of
privacy in the room expired at the checkout time. Id.

    In Dorais, we also considered our decision in
Henderson, which is factually similar to the present case,
because it involves a defendant’s expectation of privacy in a
rental vehicle possessed beyond the terms of the rental
contract. Dorais, 241 F.3d at 1129. In Henderson, we held
that the defendant had a reasonable expectation of privacy in
a rental car even though the lease to the car had expired.
Henderson, 241 F.3d at 647. In support of our holding, we
noted that a representative of the rental company had
testified that it was not unusual for customers to keep their
rental cars beyond the terms of their rental agreements and
that in such cases, the company would charge the customer’s
credit card for the late return. Id. In addition, we found that

    4
      The motel manager in Kitchens testified at the suppression hearing
that he had entered rooms and evicted occupants when they stayed past
checkout time and had, on several occasions, called the police to assist
him in evicting individuals who stayed past checkout without paying for
an additional night. 114 F.3d at 30.
20                UNITED STATES V. YANG

the rental company had not taken affirmative steps to
repossess the vehicle. Id. Based on these facts, we
concluded that “[e]ven though the rental agreement had
expired, the parties to the agreement understood that [the
defendant] would retain possession and control of the car
and would in effect, continue to rent it.” Id.

    Taking into consideration the above-mentioned cases, as
well as others, we concluded in Dorais that the defendants
had failed to establish a reasonable expectation of privacy in
the hotel room at the time of the search at around 12:40 p.m.
Dorais, 241 F.3d at 1130. We found that the hotel had
clearly communicated the noon checkout time to the
defendant because it was posted in the room and the hotel,
following its standard procedure, reminded the defendant of
the checkout time earlier that day. Id. We acknowledged
that although it was not normal hotel policy to issue trespass
notices to overstaying guests immediately at noon, we found
that the defendant was put on notice that any extension past
noon would be of limited duration. Id. As was customary,
the defendant was asked by housekeeping around noon when
he would be leaving. Id. These facts, along with the fact
that the defendant’s co-occupant had already left the room,
and the defendant’s testimony that he had planned to remain
in the room until 12:30, established that the defendant’s
expectation of privacy in the room did not extend past 12:30.
Id.

     B. Application to Case

     At the outset, we reject Yang’s argument that the above-
mentioned cases are inapposite because they regard an
expectation of privacy in property or premises rather than an
expectation of privacy on the whole of one’s movements that
is at issue in this case. We are simply unwilling to conclude
that a person has a reasonable expectation of privacy in his
                   UNITED STATES V. YANG                      21

movements as revealed by the historical location data of a
rental vehicle after failing to return the vehicle by the
contract due date, when there is no policy or practice of the
rental company “permitting lessees to keep cars and simply
charging them for the extra time.” See Dorias, 241 F.3d
at 1128 (citing Henderson, 241 F.3d at 647).

    In this case, the rental contract provided that vehicles not
returned by the due date will be reported as stolen to the
proper authorities. Yang contends that Prestige Motors’
decision not to immediately file a stolen vehicle report after
the rental contract expired is evidence that the company does
not strictly follow this policy. However, unlike in the cases
discussed above, Yang presented no evidence at the
suppression hearing of any other custom or practice by
Prestige that led him to believe that rather than adhering to
the rental contract terms and reporting the vehicle as stolen,
Prestige would, absent any request by him, simply extend the
lease term and charge him the additional fees. While the
rental agreement provided that “[a] charge of $20.00 per day
will be applied to the rental for every day the vehicle is late,”
the contract also provided that “[i]f a customer wishes to
extend, he or she must notify the company 1 day in advance
to make arrangements and additional payments.” There is
no evidence in the record to suggest that Yang notified
Prestige of any intent on his part to extend the rental period.
In addition, the rental contract warned lessees that Prestige
may repossess a vehicle if not returned by the contract due
date and that a $250.00 repossession fee will apply.

    And in case there were any lingering doubts about
whether Yang had a reasonable expectation of privacy in the
location of the Yukon at the time Inspector Steele searched
the LEARN database on April 13, 2006, we conclude that
Prestige’s private attempts to repossess the Yukon by
22                UNITED STATES V. YANG

activating the GPS and disabling the vehicle placed Yang,
the sole authorized driver, on notice that Prestige did not
intend to extend the lease term, but rather sought to repossess
the vehicle.

    At oral argument, Yang also argued that he had standing
to object to the query of the LEARN database because it
revealed his location on April 5, 2016, at approximately
11:24 p.m., at which time, he alleges, he still had a
reasonable expectation of privacy in his movements. Given
the rental agreement provided that vehicles not returned by
the “due date” would be reported as stolen, Yang contends
that he had a reasonable expectation of privacy in his
movements, as revealed by the location data of the Yukon
until 11:59 p.m. on April 5th even though the vehicle was
due back by 10:48 a.m. that day. Because the ALPR camera
captured the Yukon’s location information well after the
close of Prestige’s business hours, as clearly advertised on
the rental agreement, we need not determine whether a
defendant has standing to object to a “search” of a rental
vehicle’s historical location information that was captured
and uploaded to a database prior to the expiration of the
rental agreement.

     AFFIRMED.



BEA, Circuit Judge, concurring in the judgment:

    I agree with the majority that Yang’s Fourth Amendment
rights were not violated by the search of the LEARN
database. But I disagree with the majority’s holding that
because Yang’s lease on the Yukon had expired when its
license plate was photographed by the automatic license
plate reader (“ALPR”), he has not alleged a violation of his
                 UNITED STATES V. YANG                   23

reasonable expectation of privacy and therefore lacks
standing to challenge the warrantless search of the LEARN
database. Cf. United States v. SDI Future Health, Inc.,
568 F.3d 684, 695 (9th Cir. 2009) (describing “Fourth
Amendment standing”). I would affirm the district court but
do so on the grounds that the search of the LEARN database
did not require a warrant because the information in the
database did not reveal “the whole of [Yang’s] physical
movements,” and therefore did not infringe on that
reasonable expectation of privacy. Carpenter v. United
States, 138 S. Ct. 2206, 2219 (2018).

                             I

    In Carpenter the Supreme Court confirmed what its prior
cases had implied: in the United States, “individuals have a
reasonable expectation of privacy in the whole of their
physical movements.” 138 S. Ct. at 2217. Therefore, the
Court found, government access to privately held cell phone
location records, which contained more than 100 entries per
day showing where the defendant was located at a specific
time, infringed upon the expectation of privacy in the whole
of one’s physical movements and required a search warrant
supported by probable cause. Id. at 2221. Yang’s argument
is that just as the cell phone records in Carpenter revealed
“the whole of [the defendant’s] physical movements” and
allowed the government to achieve “near perfect
surveillance, as if it had attached an ankle monitor to the
phone’s user,” the LEARN database provided the
government here with the same degree of information and
thus required a warrant to access it. Id. at 2217–18. This
claim falls apart under the barest of scrutiny.

   The evidence in the record that relates to the question
whether the information contained in the LEARN database
revealed the whole of Yang’s physical movements is this:
24                   UNITED STATES V. YANG

The President of Vigilant Solutions (which operates the
LEARN database), Mike Hodnett, testified at the
suppression hearing in January 2017 that the LEARN
database contained approximately 5 billion vehicle location
entries across the United States. He also testified that the
database contained, on average, four unique entries annually
for vehicles that had been identified by an ALPR.
Specifically, in this case, the GMC Yukon that ultimately led
investigators to Yang had been observed only once 1 by
ALPRs that uploaded location information to the LEARN
database, despite having been driven more than 105,000
miles.

    Beyond the record from the district court, amici call our
attention to the increasing ubiquity of ALPRs. Amici note
promotional materials by Vigilant Solutions that state its
commercial license plate database, which is a component of
the LEARN database, currently contains 6.5 billion entries.
Digital Recognition Network, https://drndata.com/ (noting
“6,500,000,000 total vehicle sightings”) (last visited March
12, 2020). This could mean that the LEARN database now
contains upwards of 10 billion entries, since the district court
found the LEARN database receives 65% of its total entries
from the commercial database. 2 Amici also note that
individual police departments maintain separate databases of
information taken from ALPRs that contain millions of
additional entries and are growing rapidly. The point amici
make is that ALPRs are becoming more and more common

     1
      The database contained two entries for the Yukon that were
captured at the same location and one second apart, but these two entries
represented only a single observation of the vehicle.
     2
       Hodnett estimated that the commercial database accounts for 65%
to 90% of the data in the LEARN database.
                  UNITED STATES V. YANG                    25

and therefore capturing more and more data, which when
aggregated, may be able to reveal the whole of one’s
physical movements.

    Looking at the specifics of this case, it’s clear that the
LEARN database did not contain information that revealed
the whole of Yang’s physical movements. Despite its
5 billion total records, the LEARN database contained a
single entry for the Yukon that Yang had rented. Yang was
unlucky that the one observation was recorded when he was
in possession of the vehicle and was made near his residence.
But even accepting that the search of the LEARN database
revealed where Yang lived, it exposed nothing else about his
“particular movements” whatsoever. Carpenter, 136 S. Ct.
at 2217. Pointedly, the database search did not even directly
place Yang near the mailboxes he pilfered, in contrast to the
phone records which showed Carpenter in the areas of his
crimes. The government learned no information about
Yang’s “familial, political, professional, religious, and
sexual associations,” when it ran the search for the Yukon’s
license plate. Id. (quoting United States v. Jones, 565 U.S.
400, 415 (Sotomayor, J., concurring)). Contrasted with the
nearly 13,000 unique data points—more than 100 per day—
that the search of cell phone records in Carpenter revealed,
it’s not hard to see how that search infringed on Fourth
Amendment rights while the search here did not.

    I understand that ALPRs may in time present many of
the same issues the Supreme Court highlighted in Carpenter.
ALPRs can effortlessly, and automatically, create
voluminous databases of vehicle location information. If
enough data is collected and aggregated, this could have the
ability to identify quickly and easily the precise whereabouts
and lifestyle habits of those whose vehicle information is
recorded. ALPRs also collect information without
26               UNITED STATES V. YANG

individualized suspicion, and records can be maintained for
years. In retrospective searches, detailed and potentially
private information may be exposed, though it is debatable
whether license plate location data would ever provide the
same “near perfect surveillance” that cell phone location
data does. See Carpenter, 138 S. Ct. at 2218.

    When applying the Fourth Amendment to emerging
technologies, the Supreme Court has stated that we “must
take account of more sophisticated systems that are already
in use or in development.” Id. (quoting Kyllo v. United
States, 533 U.S. 27, 36 (2001)). Amici argue that this
principle directs a holding that a government search of an
ALPR database requires a warrant currently based on the
future risk of a violation of a reasonable expectation of
privacy if the technology advances as they believe it will.
But both Carpenter and Kyllo made that statement in
decisions that established new rules for government actions
that constituted a “search” under the Fourth Amendment.
Here, Yang asks us to apply Carpenter to the search of the
LEARN database. It’s clear to me that the database search
did not reveal the whole, or even any, of Yang’s physical
movements. It would be folly to hold that searches of ALPR
databases require a warrant without identifying even one
case where the “whole of [one’s] physical movements” was
implicated in an ALPR database search. Id. at 2217. If the
technology evolves in the way that amici hypothesize, then
perhaps in the future a warrant may be required for the
government to access the LEARN database, but this should
only be the case if the database evolves to provide
comparable location information to the records at issue in
Carpenter.
                  UNITED STATES V. YANG                     27

                              II

    As noted, the majority avoids addressing whether a
search of the LEARN database, or other ALPR databases,
requires a warrant because it finds that Yang lacked a
reasonable expectation of privacy in the Yukon when the
photograph of its license plate was taken by an ALPR and
the location data uploaded to the LEARN database. In effect
the majority holds that Yang lacked Fourth Amendment
standing to challenge an illegal search of the Yukon at the
moment the ALPR captured his license plate, and therefore
he lacked a reasonable expectation of privacy in any location
data revealed by searching the LEARN database. Setting
aside the question whether the majority is correct in its
analysis that Yang would not have had standing to challenge
the physical search of a rental vehicle that was 13 hours
overdue, I believe the majority is incorrect to resolve the
case on this ground.

    The cases the majority cites for its holding on Fourth
Amendment standing did not involve alleged violations of
the reasonable expectation of privacy in the whole of one’s
physical movements, and for this reason, I find their utility
here lacking. I do not see how whether Yang had a valid
possessory right in the Yukon when the ALPR photographed
its license plate affects whether Yang may challenge the
search of a database he alleges revealed the whole of his
physical movements. Cf. Jones, 565 U.S. at 425 (Alito, J.,
concurring in judgment) (criticizing a holding that required
the defendant to have “had at least the property rights of a
bailee” in order to allege a Fourth Amendment violation for
warrantless GPS tracking of a vehicle (quoting id. at 404
n.2)). In Carpenter, the Supreme Court was clear that the
relevant inquiry, at least where location data is concerned, is
what personal location information is revealed by a search
28                UNITED STATES V. YANG

of the records, not what type of data was collected and under
what circumstances. See 138 S. Ct. at 2219–20.

    Yang challenges not the photographing of the Yukon’s
license plate but the search of the database that he believes
revealed the whole of his physical movements. Yang is
wrong on the merits of his claim, but he has standing to bring
it. Accordingly, I concur in the judgment affirming the
district court’s denial of Yang’s motion to suppress
evidence.
