This case requires us to consider whether a driver of a rental car who is not listed on the rental agreement has standing to challenge a police search of the vehicle.

Michael Bahr, a Spokane City, Washington, police officer and Drug Enforcement Agency ("DEA") task force officer, received a tip regarding the defendant-appellant, Roshon Thomas, in November 2002. Officer Bahr never met with the undisclosed source of the tips ("the Source"), whose identity has remained confidential out of concern for the individual's safety. Officer Bahr spoke with the Source over the phone, determined its identity, and learned that the Source had never been arrested or convicted of a criminal offense. The Source received no compensation for the information provided to Officer Bahr.

The Source told Officer Bahr that Thomas had been renting cars-or instructing others to rent them for him-which he would use to transport crack cocaine from Long Beach, California, to Spokane, Washington. Approximately 1-2 years earlier, the Source rented a vehicle at Thomas's direction. Thomas and the Source drove the vehicle to Long Beach, where the Source was present when Thomas purchased crack cocaine, which they then transported back up to Spokane in the rental vehicle. The Source reported that Thomas made similar trips with other individuals every six to eight weeks.

In November 2002, according to the Source, Thomas obtained and transported crack cocaine from Long Beach for an individual named Antonio Crawford, who had recently been arrested for the distribution of crack cocaine. The Source explained that Jamie McGuffey rented the vehicle Thomas used to transport the drugs from Long Beach. The Source stated that McGuffey usually rented cars from Dollar Rental Company or Budget Rental Company at the Spokane Airport.

The police then corroborated the Source's information, to the extent possible. Officer Bahr was aware that during that month, Crawford had been arrested for the distribution of crack cocaine. The Spokane County Gang Unit advised Officer Bahr that McGuffey was one of Thomas's known associates. Officers also spoke with a manager at the Spokane Airport location of the Budget Rental Car Company ("Budget"), who confirmed that McGuffey had rented a car in November 2002, and returned it with 2,889 additional miles on the odometer. Based on his training and experience, Officer Bahr concluded that this mileage was consistent with a round trip from Spokane to Long Beach. The Budget manager later informed Officer Bahr that Thomas had rented cars from Budget on three prior occasions, though milage information had been expunged from company computers.

In December 2002, the Source again provided Officer Bahr with information that Thomas would be traveling to Long Beach with his family over the Christmas holiday. Again the Source asserted that the purpose of the trip was to transport crack cocaine. The Spokane County prosecutor's office informed Officer Bahr that an arrest warrant had been issued for Thomas, but Officer Bahr was further advised that the warrant had been recalled due to a miscommunication between Thomas and the prosecutor's office.

On February 27, 2003, the Budget manager at the Spokane Airport contacted Officer Bahr to inform him that Thomas and McGuffey had attempted to rent a car that day. Budget refused to rent Thomas and McGuffey a car because both had outstanding unpaid late fees. The Budget manager told Officer Bahr that he intended to warn the other rental car services at the Spokane Airport about Thomas and McGuffey.

On March 4, 2003, a representative from National Car Rental ("National") at the Spokane Airport called Officer Bahr and reported that McGuffey had just made a four-day rental reservation. McGuffey was scheduled to pick up the car-a white 2003 Dodge Intrepid-at noon the following day. National's manager agreed to allow the police to install a tracking device in the car while the car was in National's garage facility before rental to McGuffey.

On March 5, McGuffey entered into a rental contract with National. McGuffey signed the rental agreement below the following text: "Only I and authorised driver(s) may drive the vehicle." The contract did not list Thomas as an authorized driver.

On March 8, 2003, the tracking device alerted police that McGuffey's rental car returned to Washington State. Because Officer Bahr was unavailable at the time, he contacted another DEA officer who, accompanied by Washington State Patrol troopers, monitored the freeways until a car matching the description of the rental car-including a matching license plate number-appeared at approximately 1:30 a.m.

After stopping the car, the DEA agent approached the car and recognized Thomas from a booking photograph that he had been given by Officer Bahr. There were no other individuals in the vehicle. Thomas presented officers with a driver's license bearing the name "Roland Phillips." After further confirming Thomas's true identity by checking his tattoos, officers arrested Thomas based on an outstanding warrant. The police then searched the rental vehicle and found, among other items, nearly 600 grams of cocaine in what police described as "a Sprint bag, a small ... telephone bag," located next to the spare tire in the vehicle's trunk. They also found $1200 and 25.1 grams of heroin.

Thomas's counsel moved to suppress the evidence seized from the rental car. The district court denied Thomas's motion to suppress on several grounds: an unauthorized driver of a rental car has no expectation of privacy, so Thomas lacked standing to challenge the search.

After the district court denied Thomas's motion to suppress, Thomas entered a conditional guilty plea to one count of Possession with Intent to Distribute a Controlled Substance in violation of21 U.S.C. 841(a)(1).⁶ The district court sentenced Thomas to 188 months pursuant toU.S.S.G. 4B1.1.

Thomas remains in custody and timely appeals.

II.

Thomas contends that he has standing to challenge an allegedly unconstitutional search of the rental car even though he was not formally authorized to drive the car.⁷

7	We review a motion to suppress de novo.United States v. Bynum, 362 F.3d 574, 578 (9th Cir.2004);United States v. Meek, 366 F.3d 705, 711 (9th Cir.2004). Findings of fact underlying the district court's determination are reviewed for clear error.Bynum, 362 F.3d at 578.

To evaluate whether an unauthorized driver has a privacy interest in a rental car, we consider whether "the person who claims the protection of the [Fourth] Amendment has a legitimate expectation of privacy in the invaded place."Rakas v. Illinois, 439 U.S. 128, 143 (1978). An expectation of privacy is legitimate if it is one which society accepts as objectively reasonable. SeeMinnesota v. Olson, 495 U.S. 91, 95-96 (1990);California v. Greenwood, 486 U.S. 35, 39 (1988). Courts have developed at least three approaches to determining when an unauthorized driver of a rental vehicle has standing to challenge a search.

The first approach is seen in the Fourth, Fifth, and Tenth Circuits. SeeUnited States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994);United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990);United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990). These courts have all adopted a bright-line test: An individual not listed on the rental agreement lacks standing to object to a search. Their cases reason that because an unauthorized driver lacks a property or possessory interest in the car, the driver does not have an expectation of privacy in it. See alsoUnited States v. Haywood, 324 F.3d 514, 516 (7th Cir. 2003) (concluding that where the driver lacks a valid license, the rental company would not have granted permission to use the vehicle, and there is no expectation of privacy).

The second approach, seen in the Eighth Circuit, is a modification of the majority bright-line approach, and generally disallows standing unless the unauthorized driver can show he or she had the permission of the authorized driver. The Eighth Circuit reasoned that an unauthorized driver would have standing after a showing of "consensual possession" of the rental car.Muhammad, 58 F.3d at 355 (citingUnited States v. Sanchez, 943 F.2d 110, 114 (1st Cir. 1991), which held, for a privately owned car, that a defendant would have standing on a showing of "a more intimate relationship with the car's owner or a history of regular use of the [car]"). In effect, this approach equates an unauthorized driver of a rental car with a non-owner driver of a privately owned car. Cf.United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980) (holding non-owner has standing to challenge a search where he has "permission to use his friend's automobile and the keys to the ignition and the trunk, with which he could exclude all others, save his friend, the owner").

The third approach, adopted in the Sixth Circuit, examines the totality of the circumstances.United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001). In Smith, the Sixth Circuit noted a broad presumption against granting unauthorized drivers standing to challenge a search. However, the court stated that the "rigid [bright-line] test is inappropriate, given that we must determine whether [the defendant] had a legitimate expectation of privacy which was reasonable in light of all the surrounding circumstances." Id. Instead, the court opted to consider a range of factors, including: (1) whether the defendant had a driver's license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver's ability to present rental documents; (4) whether the driver had the lessee's permission to use the car; and (5) the driver's relationship with the rental company, and held that the defendant had standing to challenge the search. Id.

The extent of an unauthorized driver's standing to challenge a rental automobile search is a question of first impression in this Circuit. We have previously held that the owner of an automobile has a legitimate expectation of privacy in the car, and therefore he has standing to object to an unconstitutional search. SeeUnited States v. Kovac, 795 F.2d 1509, 1510-11 (9th Cir. 1986) (citingRakas, 439 U.S. at 144 n. 12). In contrast, "a person does not possess a reasonable expectation of privacy in an item in which he has no possessory or ownership interest."United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000). Thus, the question becomes whether an unauthorized driver has a possessory or ownership interest in the car.

A "possessory or ownership interest" need not be defined narrowly: A reasonable expectation of privacy may be shown " 'either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'Minnesota v. Carter, 525 U.S. 83, 88 (1998). Therefore, a defendant who lacks an ownership interest may still have standing to challenge a search, upon a showing of "joint control" or "common authority" over the property searched.

Common authority rests "on mutual use of the property by persons generally having joint access or control for most purposes."Illinois v. Rodriguez, 497 U.S. 177, 181, (1990) For example, inJones v. United States, 362 U.S. 257, 259, 265 (1960), the defendant had standing to challenge a search of a friend's apartment when he had permission to use the apartment, had a key to the apartment, stored his belongings there, and had the right and ability to exclude others, except the owner, from the apartment. Similarly, in United States v. Portillo, we held that a defendant had a legitimate expectation of privacy in his friend's car, though the defendant lacked any cognizable property interest in the car.633 F.2d at 1317. We noted that a defendant may have a legitimate expectation of privacy in another's car if the defendant is in possession of the car, has the permission of the owner, holds a key to the car, and has the right and ability to exclude others, except the owner, from the car. See id.

The government notes that a driver has no legal right to control or to possess a rental car in contravention of the lease agreement. While it is true that an unauthorized driver may be in violation of the rental agreement, we have previously held that a privacy interest exists even if a defendant is in technical violation of a leasing contract. For example, inUnited States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2001), we held that the lessee of a rental car has a reasonable expectation of privacy in it, even after the lease period expires, as long as the lessee retains possession and control over the car. Under Henderson, it cannot be said that a defendant's privacy interest is dependent simply upon whether the defendant is in violation of the terms of his lease agreement.

Thus, we must reject the government's contention that a defendant not listed on a lease agreement lacks standing to challenge a search. We cannot base constitutional standing entirely on a rental agreement to which the unauthorized driver was not a party and may not capture the nature of the unauthorized driver's use of the car. Rather, an unauthorized driver who received permission to use a rental car and has joint authority over the car may challenge the search to the same extent as the authorized renter.

Therefore, we agree with the Eighth Circuit: An unauthorized driver may have standing to challenge a search if he or she has received permission to use the car.

Thomas, an unauthorized driver, only has standing to challenge the search of a rental automobile if he received permission to use the rental car from the authorized renter, McGuffey. Here, it is undisputed that Thomas failed to show that he received McGuffey's permission to use the car. Therefore, the district court properly concluded that Thomas lacks standing to challenge the search.

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V

For the foregoing reasons, the decision of the district court is AFFIRMED in part and REMANDED pursuant to Ameline.

End of Document

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