“Out-of-Order” Means No Reasonable Expectation of Privacy: Seventh Circuit Clarifies Fourth Amendment Limits in Unlocked, Non‑Functional Public Restrooms

Introduction

In United States v. Lapierre Scott, No. 24-1903 (7th Cir. Sept. 2, 2025), the Seventh Circuit confronted two core issues: (1) whether a person has a Fourth Amendment reasonable expectation of privacy in an unlocked, single‑occupancy public restroom conspicuously marked “Out of Order,” and (2) whether evidence was sufficient to sustain a felon‑in‑possession conviction under 18 U.S.C. § 922(g)(1) on a constructive‑possession theory.

The case arose when Chicago-area officers visited a gas station to obtain video of an earlier robbery. Upon seeing police, Lapierre Scott entered the mini‑mart and went into a single‑occupancy restroom that bore a clear “Out of Order” sign. He did not lock the door. Officers followed him into the unlocked room and found him standing on handicap bars, reaching into the ceiling; a firearm was recovered from the ceiling area. A custodial search revealed cash and multiple controlled substances.

Scott moved to suppress, arguing the bathroom entry was an unconstitutional warrantless search. He also challenged the sufficiency of the firearm evidence and attempted to adopt a broad Second Amendment attack on § 922(g) by reference to arguments made below.

The Seventh Circuit affirmed on all fronts, creating a notable Fourth Amendment clarification about privacy expectations in non‑functional, unlocked public restrooms.

Summary of the Judgment

• Fourth Amendment/suppression: No evidentiary hearing was held because the facts were undisputed. The court held that entry into an unlocked, “Out of Order” single‑occupancy public restroom was not a “search” under the Fourth Amendment, because Scott lacked a subjective and objectively reasonable expectation of privacy in that space. The suppression motion was properly denied.
• Sufficiency of the evidence on § 922(g)(1): The conviction was supported by sufficient evidence of constructive possession. Scott’s proximity to the firearm, his gesture implying control (reaching into the ceiling where the gun was found), the gun’s relatively dust‑free condition compared to its surroundings, and motive evidence (his status as a felon and drug possession) together permitted a rational factfinder to find possession beyond a reasonable doubt.
• Second Amendment challenge: Scott waived any constitutional challenge to § 922(g) by attempting to incorporate by reference arguments made in the district court and by failing to brief the issue on appeal. The panel declined to address the merits.

Analysis

Precedents Cited and How They Informed the Decision

• Fourth Amendment architecture:
  • United States v. Lewis, 38 F.4th 527 (7th Cir. 2022) and Lange v. California, 594 U.S. 295 (2021) reaffirm the warrant requirement and its exceptions, and the threshold point that if no “search” occurs, the Fourth Amendment is not implicated.
  • Smith v. Maryland, 442 U.S. 735 (1979) supplies the familiar two‑part test for a privacy‑based Fourth Amendment claim: (1) a subjective manifestation of privacy expectation, and (2) an expectation that society recognizes as reasonable.
  • United States v. Carlisle, 614 F.3d 750 (7th Cir. 2010) and United States v. Peters, 791 F.2d 1270 (7th Cir. 1986) (overruled on other grounds) provide factors for evaluating a legitimate expectation of privacy: possessory interest; right to exclude; subjective expectation; precautions taken; legitimacy of presence.
• Sufficiency and constructive possession:
  • United States v. Foy, 50 F.4th 616 (7th Cir. 2022); United States v. Medina, 969 F.3d 819 (7th Cir. 2020); and United States v. Williams, 127 F.4th 676 (7th Cir. 2025) set the deferential standard of review for sufficiency challenges: the conviction stands if any rational trier of fact could find the elements beyond a reasonable doubt, with all reasonable inferences for the government.
  • United States v. White, 95 F.4th 1073 (7th Cir. 2024); United States v. Maxwell, 143 F.4th 844 (7th Cir. 2025); and United States v. Griffin, 684 F.3d 691 (7th Cir. 2012) explain constructive possession: proximity is not enough, but proximity combined with other factors—motive, gestures implying control, evasive conduct, or incriminating statements—can suffice if the nexus to the object is established.
  • United States v. Shaffers, 22 F.4th 655 (7th Cir. 2022) recognizes furtive movements near the eventual discovery site of contraband as evidence supporting constructive possession.
  • United States v. Coley, 137 F.4th 874 (7th Cir. 2025) underscores the well‑recognized connection between drug trafficking and firearms, providing motive evidence relevant to constructive possession.
• Appellate waiver of issues not briefed:
  • Kauthar SDN BHD v. Sternberg, 149 F.3d 659 (7th Cir. 1998), abrogated on other grounds; Hunter v. Allis‑Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986); and Spitz v. Proven Winners North America, 759 F.3d 724 (7th Cir. 2014) establish that incorporating by reference arguments made below is unacceptable on appeal; issues must be argued to be preserved.

Legal Reasoning

1) Fourth Amendment: No “search” because no legitimate expectation of privacy

The court analyzed the issue under the privacy-based framework (Scott did not assert a property-based trespass theory). Applying the Carlisle/Peters factors:

• Possessory interest/right to exclude: The “Out of Order” sign negated any implied public invitation to use the room and signaled likely access by employees or maintenance workers. Scott had no possessory interest and no right to exclude others from a room that was not available for public use.
• Subjective expectation/precautions: Scott did not lock the door. In a high‑traffic gas station, users ordinarily know an unlocked single‑occupancy restroom may be opened at any moment. The “Out of Order” sign further diminished any belief in solitude; workers might enter “at any moment.” Scott’s conduct did not manifest a genuine subjective expectation of privacy.
• Objective reasonableness: Society would not accept as reasonable a claimed privacy interest in an unlocked, non‑functional public restroom that is expressly unavailable for its intended purpose. The signage and unlock status together defeated objective reasonableness.

Scott’s insistence that officers believed he was using the room for its intended purpose was rejected both factually (the conspicuous signage undermined that premise) and legally (officers’ subjective beliefs are not the test; the Katz/Smith inquiry focuses on the defendant’s expectation and societal reasonableness).

Result: Because Scott lacked a protected privacy interest, the officers’ entry was not a “search” at all—rendering the Fourth Amendment inapplicable and the evidence not subject to suppression.

2) Sufficiency on § 922(g)(1): Constructive possession adequately proved

The Seventh Circuit reiterated that constructive possession exists when the defendant knowingly has both the power and intention to exercise dominion and control over the object, with a required nexus connecting the defendant to the contraband. Proximity alone is insufficient, but proximity plus other factors can satisfy the standard.

Key proof items:

• Gesture implying control: Officers saw Scott standing on the restroom handicap bars with his arm extended into a ceiling tile, precisely where the gun was recovered moments later. Such “furtive movement” is a recognized indicator of control.
• Condition evidence: The surrounding ceiling area was dusty; the firearm was not. That disparity supported an inference that the gun had been recently placed—by the person who moments earlier reached into that spot.
• Motive: Scott had seen officers as he entered the mini‑mart and was a felon in proximity to drugs and cash. The established nexus between drug trafficking and firearms bolstered the inference that he intentionally exercised control over the gun.

Counterpoints (e.g., no fingerprints or DNA, alternative hypothesis that he was hiding drugs rather than a gun) did not undermine the verdict under the deferential sufficiency standard. The government need not exclude every alternative inference; the question is whether a rational factfinder could find guilt beyond a reasonable doubt. Here, the totality comfortably cleared that bar.

3) Second Amendment: Waiver via inadequate appellate briefing

Scott attempted to “adopt” his district‑court Second Amendment arguments and referenced other pending appeals, but he did not develop any appellate argument. Seventh Circuit precedent forbids incorporation by reference in lieu of briefing. The panel held the constitutional challenge waived and declined to opine on § 922(g)’s constitutionality in this case.

Impact

A. Fourth Amendment practice in public‑access facilities

• Narrow but important clarification: A person who enters an unlocked, single‑occupancy public restroom that is conspicuously marked “Out of Order” lacks a reasonable expectation of privacy in that space. Entry by officers into such a room is therefore not a Fourth Amendment “search.”
• Practical implications:
  • For law enforcement: Clear, visible “Out of Order” signage and an unlocked door meaningfully diminish privacy expectations. The opinion suggests officers may rely on those objective conditions absent additional circumstances suggesting a protected privacy interest.
  • For facility operators: Signage and lock status matter. “Out of Order” signs communicate unavailability for private use; unlocked doors underline non‑exclusive access.
  • For defendants: Where privacy is asserted in a public facility, precautions such as locking the door and using a functioning, designated space can be critical to the subjective and objective prongs. Entering spaces expressly unavailable to the public undercuts both prongs.
• Limits and nuance: The holding turns on the combination of (1) a conspicuous “Out of Order” designation and (2) an unlocked door. The court itself contrasted this posture with a “normal public bathroom,” where indoor locks “give [users] the ability to ensure the exclusion of others.” The opinion does not resolve scenarios involving a locked out‑of‑order restroom or other mixed signals of accessibility.

B. Constructive possession in § 922(g) prosecutions

• The decision reinforces a familiar constructive‑possession template: proximity plus gesture implying control, condition evidence (e.g., dust disparity), and motive can jointly supply the nexus that separates a possessor from a bystander.
• Absence of forensic traces (fingerprints/DNA) is not dispositive; circumstantial evidence can sustain a verdict. Prosecutors will likely cite Scott for the proposition that a “gesture‑plus‑motive” package, especially when captured on body‑cam or corroborated by scene conditions, supports § 922(g) convictions.

C. Appellate practice

• The panel reaffirms that litigants cannot preserve appellate issues by incorporating district‑court briefs or pointing to arguments in other cases. Issues must be developed in the appellant’s brief. This is a recurring Seventh Circuit admonition with real consequences; constitutional questions not briefed are waived, even when implicated by circuit‑wide litigation elsewhere.

Complex Concepts Simplified

• Search vs. no search: The Fourth Amendment regulates “searches.” If police conduct does not intrude upon a constitutionally protected privacy or property interest, there is no “search,” and the Fourth Amendment simply does not apply. Here, because the court found no reasonable expectation of privacy, it never reached exceptions to the warrant requirement.
• Reasonable expectation of privacy (Katz/Smith framework):
  • Subjective: Did the person actually seek privacy (e.g., by locking a door)?
  • Objective: Is that expectation one society would deem reasonable in the circumstances (e.g., using a functioning, private space vs. a non‑functional public room open to employees)?
• Right to exclude: A key signal of privacy. If you have authority to keep others out (like locking a door in a single‑occupancy restroom made available for public use), your claim to privacy is stronger. If signage and circumstances show you cannot exclude others (e.g., maintenance may enter an “Out of Order” room), your claim weakens.
• Constructive possession: You can “possess” something without holding it if you knowingly have both the power and intention to control it. Courts look for a nexus—connections like gestures suggesting control, proximity plus motive, and scene clues—to distinguish possessors from bystanders.
• Waiver (on appeal): An issue is waived when a party fails to properly present and argue it in the appellate brief. Incorporating by reference arguments made elsewhere is not enough; the appellate court will treat the issue as abandoned.

Conclusion

United States v. Lapierre Scott crystallizes a practical Fourth Amendment rule tailored to public‑facing facilities: an unlocked, clearly “Out of Order” single‑occupancy restroom affords no reasonable expectation of privacy. The decision thus permits warrantless officer entry into such spaces without triggering the Fourth Amendment, at least on the combination of conspicuous non‑functionality and unlocked access. Beyond suppression, the court’s constructive‑possession analysis reaffirms that proximity joined with gestures implying control, motive, and corroborating condition evidence comfortably sustains § 922(g) convictions. Finally, the panel’s waiver holding is a sharp reminder that constitutional arguments must be fully briefed on appeal to be preserved.

Taken together, Scott influences day‑to‑day policing and defense strategy in encounters involving semi‑public spaces, fortifies the evidentiary pathway for constructive‑possession prosecutions, and underscores exacting appellate briefing norms in the Seventh Circuit. Its most enduring contribution is the clarified privacy principle: clearly non‑functional, unlocked public spaces do not create the private enclave that the Fourth Amendment protects.