In the
United States Court of Appeals
For the Seventh Circuit

No. 99-4022

United States of America,

Plaintiff-Appellee,

v.

Terrill A. Walker, also known as Bishop,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 40013--James L. Foreman, Judge.


Argued November 7, 2000--Decided January 17, 2001



  Before Bauer, Coffey, and Easterbrook, Circuit Judges.

  Bauer, Circuit Judge. Terrill Walker was
convicted of possessing crack cocaine with intent
to distribute in violation of 21 U.S.C. sec.
841(a)(1) and of carrying a firearm in connection
with a drug trafficking offense in violation of
18 U.S.C. sec. 924(c). The district court
sentenced Walker to 295 months in federal prison.
Walker now appeals his conviction arguing that:
(1) the search warrant lacked probable cause and
the district court erred when it denied hearings
for Walker’s two Motions to Suppress; (2) nine
evidentiary errors denied him a fair trial; and
(3) the district court erroneously considered a
November 1998 transaction involving 28.35 grams
of cocaine for sentencing purposes. We affirm the
district court.

I.   Background

  The Carbondale, Illinois police department
received an anonymous tip on December 15, 1998
that Janai Gails, the tipster’s aunt, had rented
cars and driven to Chicago five or six times to
buy crack cocaine. The tipster informed police
that the rental cars had license plates beginning
with "LJRENT" and that other people, including
defendant Terrill Walker, rode with Gails to
Chicago. The tipster believed that Walker and
Gails were planning another trip.
  As part of their investigation, police contacted
Lois Forquer, the owner of L.J.’s Auto Rentals.
Forquer reported that Gails previously rented
multiple cars and returned them with mileage
consistent with trips to Chicago. Forquer
notified police when Gails returned rental cars
on December 18, 1998 and January 7, 1999. Drug-
sniffing police dogs searched both cars and
indicated that drugs had been present in each.
Walker did not go on either the December or the
January trip.

  On February 11, 1999, Walker’s girlfriend, Dawna
Locke rented a car from Forquer. The rental
agreement listed Walker as an approved driver. On
February 12, Forquer informed police that Walker
and Locke had rented cars on several occasions
during the past month. Forquer believed that they
were renting cars instead of Gails because Gails
owed money to L.J.’s Auto Rentals. Two of
Walker’s and Locke’s trips resulted in mileage
consistent with trips to Chicago. Forquer advised
police that Locke and Walker were then currently
renting a teal four-door 1995 Oldsmobile Cutlass
Supreme and were scheduled to return it on
February 13, 1999.

  On February 13, the police obtained an
anticipatory search warrant for the Cutlass
Supreme and its occupants. The issuing
magistrate, however, neglected to designate the
date by which the search warrant had to be
executed ("expiration date"). Mere hours after
the magistrate issued the search warrant, the
police stopped Walker and Locke in the Cutlass
Supreme. Officers ordered Walker and Locke to put
their hands up. Locke complied, but Walker
proceeded to stuff his crack cocaine down Locke’s
pants. The police took Locke and Walker into
custody and transported them to the Carbondale
FBI office.

  The police searched Walker and Locke. They
discovered approximately one ounce of crack
cocaine in the crotch of Locke’s pants. Walker
admitted that the crack belonged to him and that
he placed it in Locke’s pants during the traffic
stop. Further, he admitted that he obtained the
crack in Chicago and that he planned to return to
purchase two more ounces.

  The police searched the car and discovered a
loaded semi-automatic gun in the trunk. During
the interrogation, Walker told police that they
would not be able to find his fingerprints on the
gun, but that it did not belong to Locke. Walker
stated that the gun was in the trunk when he and
Locke rented the vehicle. After the
interrogation, Walker engaged in a proffer
interview. He was later indicted for possessing
crack with intent to distribute and for carrying
a firearm in relation to a drug offense.

  Walker filed two Motions to Suppress, requesting
hearings. The first claimed that the warrant
lacked probable cause as to Walker and that the
search of the trunk was out of the scope of the
search warrant. The second argued that the search
warrant was invalid because it lacked an
expiration date. The district court denied both
motions.

  Walker went to trial in July of 1999, where the
evidence mounted against him. Regarding the
drugs, Locke corroborated Walker’s admission that
he owned the crack cocaine found in her pants. As
to the gun, Forquer testified that her company’s
routine vehicle inspection found no gun in the
trunk of the Cutlass Supreme at the time she
rented it to Locke and Walker. Walker’s half-
brother testified that he saw the gun in Walker’s
bedroom shortly before the Chicago trip. Walker
argues that nine evidentiary errors made at trial
deprived him of a fair trial. The jury convicted
Walker on both counts after deliberating for only
14 minutes.

  The proceedings moved to the sentencing stage.
The Pre-Sentencing Report ("PSR") contained
information regarding approximately one ounce
(28.35 grams) of crack cocaine that Walker
possessed after a November trip to Chicago that
he made with Gails. Although Gails provided this
information to police, she refused to testify to
it on the stand. Walker objected to the PSR,
arguing that sentencing based on this information
was wrong because (1) the November trip was too
far removed in time from the February trip to be
included in the same course of conduct, and (2)
for various reasons, Gails was not a credible
witness. At the sentencing hearing, defense
counsel orally argued the course-of-conduct
objection and stated that it was his only
objection. The prosecutor clarified that the
defense counsel meant to object only on the legal
course of conduct argument and not the factual
credibility argument. The defense counsel agreed
with the prosecutor’s characterization of his
objection. The district court included the 28.35
grams of crack cocaine in Walker’s total for
sentencing purposes. This amount pushed Walker’s
total of crack cocaine over 50 grams, giving him
an offense level of 32. The judge sentenced
Walker to 295 months in prison. Walker appeals
both his conviction and his sentence.

II.    Discussion

  A.    Validity of the Search Warrant
  Walker contends that the evidence produced by
the search of his person, Locke, and the rental
car should be suppressed because the search
warrant was invalid for two reasons. First,
Walker contends that police lacked probable cause
as to Walker because the anonymous tipster had no
direct knowledge that Walker was involved with
the drug ring and because the police failed to
sufficiently investigate Walker’s involvement.
Second, Walker contends that the warrant was
facially invalid because the issuing judge failed
to write an expiration date on the warrant.


     1. Does Defendant Have a Protected Fourth
Amendment Interest?

  We must first address the threshold issue of
whether Walker has a protected Fourth Amendment
interest that allows him to challenge the search
warrant. Neither the Supreme Court nor this
Circuit has squarely decided whether a driver who
is not the primary vehicle lessee, but who is
included on the lease as an approved driver may
challenge the validity of a search warrant issued
for the rental car and its occupants. However,
the Supreme Court addressed a highly similar
factual situation in Rakas v. Illinois, 439 U.S.
128 (1978). In Rakas, "passengers in a car which
they neither owned nor leased" wanted to suppress
evidence gleaned from a search of the car. Id. at
140. Applying substantive Fourth Amendment law,
the Court held that the passengers could not
challenge the legality of the search because they
did not have a "legitimate expectation of
privacy" in the car as they "asserted neither a
property nor a possessory interest in the
automobile." Id. at 148.

  The Rakas concurrence further explained the
test. It conceived the relevant test to be a two-
pronged inquiry into whether the defendant had
reasonable objective and subjective expectations
of privacy. See id. at 151 (Powell, J.,
concurring). The concurrence viewed the
majority’s inquiry regarding possessory and
property interest as addressing the objective
expectation prong of the test. See id.

  Four of our sister circuits have applied the
legitimate-expectation-of-privacy test used in
Rakas to factual situations highly similar to
this case. While some circuits have adopted the
concurrence’s two-pronged view of the privacy
test and others have used only the majority’s
"possessory or property interest" language,
without exception, these circuits have held or
implied that a person who is listed on a vehicle
rental contract has a protected Fourth Amendment
interest and may challenge a search of the
vehicle. See United States v. Riazco, 91 F.3d
752, 754-55 (5th Cir. 1996) (holding that a
driver and a passenger in a rental car who did
not rent the car, were not listed as authorized
drivers on the rental agreement, and did not have
permission of the renter to drive it lacked a
protected Fourth Amendment right and thus could
not challenge evidence produced by a search
because they lacked an objectively reasonable
expectation of privacy in the vehicle); United
States v. Pino, 855 F.2d 357, 360-61 (6th Cir.
1988) (holding that a passenger in a rental car
who was not listed on the rental agreement as an
approved driver did not have the possessory
interest in the car necessary to create a
protected Fourth Amendment right and therefore
could not challenge the search of the vehicle),
modified 866 F.2d 147; United States v. Best, 135
F.3d 1223, 1225 (8th Cir. 1998) (holding that to
have a protected Fourth Amendment right to
challenge a search of a rented vehicle, the
defendant/driver must be on the rental agreement
or have the permission of the vehicle renter to
drive the vehicle); United States v. Shareef, 100
F.3d 1491, 1499-1500 (10th Cir. 1996) (holding
that the defendant, who was hired to drive a U-
Haul, but who was not an authorized driver on the
rental agreement had no protected Fourth
Amendment right necessary to challenge the search
of the U-Haul because he did not have a
reasonable expectation of privacy due to his lack
of a legitimate ownership or possessory interest
in the rented vehicle).

  Today, we adopt the rule that a person listed
on a rental agreement as an authorized driver has
a protected Fourth Amendment interest in the
vehicle and may challenge a search of the rental
vehicle. We arrive at this conclusion by applying
the two-pronged objective and subjective
expectation-of-privacy test. A person listed as
an approved driver on a rental agreement has an
objective expectation of privacy in the vehicle
due to his possessory and property interest in
the vehicle. Given Walker’s obvious subjective
expectation of privacy, we find that Walker, an
approved driver on the rental contract, may
challenge the search warrant issued for the
rented Cutlass Supreme. We now consider whether
the search warrant was supported by probable
cause.


     2.   Probable Cause and Suppression Hearings

  Walker contends that the search warrant lacked
probable cause because it was supported by no
legitimate evidence besides the anonymous
tipster’s uncorroborated belief that Walker was
involved with drugs. The issuing judge must
determine if probable cause exists by "making a
practical, common-sense decision" whether given
all the circumstances, there exists "a fair
probability that contraband or evidence of a
crime will be found in a particular place."
Illinois v. Gates, 462 U.S. 213, 238 (1982). To
uphold the search warrant, we must find that the
affidavits "provid[ed] the magistrate with a
substantial basis for determining the existence
of probable cause." United States v. Leon, 468
U.S. 897, 915 (1983). Our Circuit has interpreted
this standard to require review for clear error
on the part of the issuing magistrate. See United
States v. Pless, 982 F.2d 1118, 1124 (7th Cir.
1992). We will not invalidate a warrant by
interpreting the affidavits in a "hypertechnical,
rather than a common-sense manner." Gates, 462
U.S. at 236.

  The record discloses that the police had
sufficient information to support the search
warrant. The tipster linked Walker to the trips
to Chicago, and the police corroborated enough of
the anonymous tipster’s information to confirm
that the tipster was a reliable source. The
purpose of corroborating information given by an
anonymous source is to establish the source’s
reliability and credibility, not to confirm all
the information the source provided. See, e.g.,
Gates, 462 U.S. at 227. We have determined that
four factors are important in assessing a
tipster’s credibility: (1) firsthand observation
by the tipster; (2) degree of detail provided by
the tipster; (3) corroboration of tipster’s
information by the police; and (4) testimony by
the tipster at the probable cause hearing. See
United States v. Lloyd, 71 F.3d 1256, 1263 (7th
Cir. 1995). Here, the tipster was Gails’ niece
and had personal knowledge of her aunt’s trips.
The tipster gave details, including the rental
car company, Gails’ destination, Gails’
companions, and the type of drugs Gails
purchased. The police corroborated that the
tipster’s aunt frequently rented cars from L.J.’s
Auto Rentals, and that many of these cars were
returned with mileage consistent with trips to
Chicago. Investigation with drug-sniffing dogs
showed the police that Gails transported drugs on
two of the trips. This information was sufficient
to establish the reliability and credibility of
the tipster. The police did not need to confirm
any information specific to Walker to establish
the tipster as a suitable source on which to base
the search warrant for the car Walker and Locke
rented.

  The police’s investigation also turned up
information that directly implicated Walker.
Through the rental company, police learned that
Walker rented several cars from L.J.’s Auto
Rentals within a time span of several weeks.
Further, it confirmed that Walker returned two of
these cars with mileage consistent with trips to
Chicago. We believe that this information
provided the magistrate who issued the search
warrant with a "substantial basis for determining
the existence of probable cause"; thus the
magistrate did not commit clear error.

  Walker finally contends that the district court
erred by refusing to grant a hearing for either
of his motions to suppress the evidence uncovered
by the search of the car. The first motion
contended that the search warrant lacked probable
cause and the second motion urged invalidation of
the warrant because the issuing judge failed to
designate an expiration date for the warrant.

  A defendant who seeks a hearing to suppress
evidence has the burden to show that there are
disputed issues of material fact. See United
States v. Woods, 995 F.2d 713, 715 (7th Cir.
1993) rev’d on other grounds, United States v.
Monroe, 73 F.3d 129 (7th Cir. 1995). As to the
motion to suppress based upon lack of probable
cause, the district court found that Walker did
not meet his burden of showing a disputed issue
of material fact. The judge reviewed the evidence
and found that under the totality of the
circumstances test, undisputed facts relevant to
Walker, supplied by L.J.’s Auto Rentals and the
tipster, created probable cause for the search
warrant. Further, the judge found that the search
was valid under the good-faith exception. The
district court correctly found that there were no
material facts in dispute and therefore correctly
denied Walker’s first motion for a suppression
hearing.

  Further, we find no error as to the second
motion to suppress, which was based upon the
warrant’s lack of an expiration date. The record
(R. 29) reflects that Walker requested only
suppression of the evidence, not a hearing. Even
if Walker did request a hearing, we find that the
district court did not err in denying the motion
because the lack of an expiration date on the
search warrant does not destroy the good-faith
exception when the warrant was executed mere
hours after it was issued and the police had no
reason to believe the warrant was stale.


 B.   Evidentiary Issues

  Walker argues that nine evidentiary errors
deprived him of a fair trial. Because Walker did
not object to any of these evidentiary matters at
trial, we review for plain error. See United
States v. Lampkins, 47 F.3d 175, 179 (7th Cir.
1995). A plain error occurs when there is "an
’error’ that is ’plain’ and that ’affect[s]
substantial rights.’" United States v. Olano, 507
U.S. 725, 732 (1993) (citation omitted). The
court should exercise its discretion to correct
only errors that "’seriously affect[ ] the
fairness, integrity or public reputation of
judicial proceedings.’" Id. (citations omitted).
None of the claimed errors rise to the level of
plain error; indeed, none indicate error at all.
Rather than detail the meritless claims, we
simply reject the position that, individually or
collectively, the rulings constitute reversible
error.


  C.   Sentencing

  Walker argues that we should reverse and remand
his sentence with instructions to the district
court to disregard the 28.35 grams of cocaine
that Walker obtained in November of 1998. On
appeal, Walker argues that the 28.35 ounces of
crack he obtained in November should not have
been considered in sentencing for three reasons:
(1) Gails’ statement lacked reliability; (2)
Gails denied the statement on the stand; and (3)
Gails’ estimate of the amount of cocaine was an
approximation. The prosecution, however, argues
that Walker has waived these objections to Gails’
credibility by intentionally relinquishing them
at the sentencing hearing.

  A waiver is "’the intentional relinquishment or
abandonment of a known right.’" Olano, 507 U.S.
at 733 (citation omitted). Waiver precludes
appellate review. See id. at 732; United States
v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)
(citation omitted); United States v. Redding, 104
F.3d 96, 99 (7th Cir. 1996). In Redding, we held
that when a party asserted an objection which it
later affirmatively abandoned at the sentencing
hearing, the objection was waived. See 104 F.3d
at 99 (holding that the defense waived its right
to appeal a criminal history calculation when it
asserted the right at a pre-sentencing hearing,
but accepted the criminal history calculation at
the sentencing hearing, despite his concurrent
attempts to preserve the point for later
collateral attack). We believe Walker has
similarly waived his credibility objection to the
PSR recommendation to sentence Walker for the
crack he possessed in November.

  The PSR recommendation was based upon a
statement Gails made to the police, but about
which she would not testify. Walker clearly knew
that he could object to this PSR recommendation
on grounds of witness credibility. He submitted
such a written objection to the district court,
which he later referred to as the "factual
objection":

Moreover, the information from Ms. Gails comes
from a person who herself was a suspect in making
trips to Chicago, Illinois to purchase "crack
cocaine" for distribution in Carbondale,
Illinois. In fact, it was Ms. Gails who was first
reported to be renting automobiles for these
trips to Chicago. Ms. Gails has an interest in
distancing herself as much as possible from
conduct involving the illegal sale of "crack
cocaine." Her information is therefore not
reliable. Therefore, Mr. Walker contends that the
use of this information in determining his
relevant conduct violated his right to be
sentenced based on accurate and reliable
information as required by law. (citations
omitted).

  In summation, Mr. Walker asserts that the
inclusion of 28.35 grams of "crack cocaine" in
his relevant conduct based on the statement of
Janaei [sic] Gails is clearly inappropriate . .
. .

Objection to Pre-Sentence Report. In addition,
Walker objected to the PSR on grounds that the
November possession was not part of the same
course of conduct as the February possession. The
defense later referred to this argument as the
"legal objection."

  At the sentencing hearing, however, Walker
intentionally relinquished the credibility
(factual) objection. The district court invited
Walker’s counsel to make statements regarding his
objections or to stand on the written objections.
Walker’s counsel argued the course-of-conduct
(legal) objection. The judge ruled that the
November possession was part of the same course-
of-conduct as the February possession and that
Walker could be sentenced as to both. The court
then attempted to rule upon Walker’s credibility
(factual) objection, and the following discussion
took place between the court, defense counsel and
the prosecution:

COURT: Now, is there any other part of your
objection that we need to pass upon, Mr. Vanni?

[DEFENSE COUNSEL]: I believe that [the course-of-
conduct objection] was the sole objection I had
raised, Your Honor. I don’t believe there’s any
other facet of it that the Court has not
addressed.

COURT: Well, you sort of attacked Ms. Gails’
credibility on page 3, but maybe that’s an
alternative type of situation that you were
bringing up.

[PROSECUTION]: Your Honor, I discussed this with-
-that particular section with [defense counsel]
prior to. When I was inquiring whether it was a
legal objection he was raising or a factual
objection as to her credibility, he informed me
that he was making a legal objection not factual.

COURT: And I--is that right?

[DEFENSE COUNSEL]: It was designed to be a legal
objection, Your Honor, yes.

COURT: Okay. All right. Then . . . I guess I’ve
ruled upon it. I’ve taken the position that’s a
same course-of-conduct situation.

Sentencing Tr. at 13-14. By his words and by
agreeing with the prosecution’s characterization
of his intent, defense counsel asked the court
not to rule upon the credibility (factual)
portion of his PSR objection. Such actions
constitute an intentional relinquishment of the
credibility objection. We hold that the defendant
has waived his credibility objection, thus
depriving us of jurisdiction to review it.

III.   Conclusion

  We hereby AFFIRM Terrill Walker’s conviction and
sentence.
