By Dale Chappell
United States v. Gaulden, No. 22-30435, 2023 U.S. App. LEXIS 17995 (5th Cir. July 14, 2023).
A somewhat divided Fifth Circuit made a novel decision July 14, 2023, by holding that a person allegedly violating the law in a video recording possessed by a video company he hired has no expectation of privacy in that video he paid for, simply because he used his own company to pay for it, instead of using his personal money. I think this creates a dangerous precedent that will allow the government to bypass all sorts of Fourth Amendment protections.
For someone to invoke the Fourth Amendment’s protection against warrantless searches, the person must have a reasonable expectation of privacy in the place or thing to be searched. It doesn’t mean they have to outright own the place or thing, but only show that a reasonable person in their situation would assume they had an expectation of privacy.
The killer here for NBA YoungBoy (aka Kentrell DeSean Gaulden), an Atlantic Records artist, was that he used his LLC (limited liability company) to pay the videographer, so the Court said he personally didn’t have a privacy interest in the video of him. Instead, the company that did the video had a privacy interest.
What does this mean for Fourth Amendment purposes? NBA YoungBoy had no legal standing to challenge the illegal search of the video company’s storage devices that had his videos. The trial court had ruled that he did, but the Fifth Circuit overturned that when the government appealed. His charges were reinstated.
This is concerning because the difference between an LLC and the real person is usually none; people create LLCs all the time as a “shell” to protect themselves from legal liability (among other business reasons). So if the government wants to dig into the computers or files of an LLC owned by a person the government doesn’t like, there seems to be no Fourth Amendment right against a warrantless search, according to the Fifth Circuit.
That’s scary. But that’s the new reality in a Court system run by judges who have this love affair with the government, many of whom were prosecutors themselves (and seemingly still are!).
Because this case is such a novel or new line of legal reasoning, I’d say there’s a chance the Supreme Court will hear it. They tend to hear a lot of Fourth Amendment cases. But with the crazy-conservative Trump-appointed justices on the High Court, I don’t see a favorable or even reasonable outcome in this.
And not to mention that Mr. Gaulden doesn’t exactly fit the mold of a person that conservatives think deserves respect and consideration. This could be a tough battle for him.
By the way, if you’ve never heard of YoungBoy Never Broke Again, he has passed Jay-Z for having the most Billboard song entries, with 30 of them in the Hot 100. Not bad for just turning 23 years old.