Resolving a three-way circuit split: Why unauthorized rental drivers should be denied fourth amendment standing

Boston University Law Review

Volumn 89, Issue 5, 2009, Pages 1687-1724

  Goldman, Darren M ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 74849108815     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (394)

1. According to market data for the U. S. car rental market, there were 19, 881 rental car locations. 2008 U. S. Car Rental Market: Fleet, Locations, and Revenue, AUTO RENTAL NEWS, http://www.fleet- central.com/resources/ARNFB09UScarrentalMarket.pdf (last visited April 5, 2009).
2. In 2008, the average number of rental cars in service was 1, 812, 690.
3. Id. The estimated revenue for the industry was $21.9 billion.
4. Id.
5. Matt Bach, Car Renters Find Local Deals for "Leisure" Wheels, FLINT J., Aug. 5, 2007, at E1.
6. Roger Yu & Chris Woodyard, Car Rentals Get Closer to Home, USA TODAY, Jan. 24, 2006, at 8B.
7. Id.
8. Bach, supra note 3.
9. See id.
10. Bill Donahue, Cars You Drive for Just a Little While, Then It's Their Turn, N. Y. TIMES, May 17, 2000, at H10 (explaining car-sharing programs in numerous cities as "short-term car-rental agencies with a public purpose: reducing car ownership and, by extension, fuel use and pollution").
11. See Andrea Siedsma, Corporate Travelers Drive Business at Small Airports, SAN DIEGO BUS. J., Aug. 8, 2005, at 3 (explaining that rental car companies have "built business[es] at small airports" to "cater to a growing number of... executives who have grown frustrated with... larger commercial airports").
12. See Bach, supra note 3.
13. See infra Part IV. A (describing Fourth Amendment status of non-unauthorized drivers).
14. Every rental company has a stated policy about drivers other than the person renting the car. See, e.g., Budget.com, Budget Fastbreak Service Terms and Conditions Effective for Reservations Made on or After January 15, 2009, ¶ 9, http://www.budget.com /budgetWeb/html/en/profile/master- printable.html (Jan. 2, 2009) ("A violation of this paragraph, which includes use of the car by an unauthorized driver, will automatically terminate your rental.... It is a violation of this paragraph if... [y]ou use or permit the car to be used... by anyone other than an authorized driver...."); Hertz.com, Additional Driver Not Signed On Contract, https://hertz.custhelp. com (search "Additional Driver Not Signed On Contract"; select "Additional Driver Not Signed On Contract") (last visited Apr. 6, 2009) ("Failure to add someone on the contract could result in the car being impounded if stopped by the police.").
15. See infra Part IV.
16. See United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990);
17. infra Part IV. B.1.
18. See United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (stating that defendant needed to provide evidence of "consent or permission from the lawful owner/renter").
19. l6.See infra Part IV. C.1.
20. See United States v. Smith, 263 F.3d 571, 586-87 (6th Cir. 2001);
21. infra Part IV. D.
22. The Fourth and Fifth Circuits have explicitly adopted the Tenth Circuit approach. United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994);
23. United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990).
24. The Ninth Circuit has explicitly adopted the Eighth Circuit approach. United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006).
25. U. S. CONST, amend. IV.
26. Id.
27. Olmstead v. United States, 277 U. S. 438, 463 (1928). Various commentators have discussed the historical underpinnings of the Fourth Amendment.
28. See WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING, 1602-1791, at 1103-81 (1990) (providing an overview of colonial responses to writs of assistance and general warrants);
29. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 560-71 (1999);
30. Tracey Maclin, THE COMPLEXITY OF THE FOURTH AMENDMENT: A HISTORICAL REVIEW, 77 B. U. L. REV. 925, 939-50 (1997) (discussing the shift from general search warrants to specific warrants in colonial America).
31. See Olmstead, 227 U. S. at 464 (permitting wiretapping under the Fourth Amendment because law enforcement inserted recording devices without trespassing upon any property of the defendants);
32. see also Goldman v. United States, 316 U. S. 129, 135 (1942) (holding the use of a detectaphone by government officials to hear conversations taking place in an adjacent room was not a violation of the Fourth Amendment because, as in Olmstead, there was no physical trespass).
33. 389 U. S. 347, 359 (1967).
34. Id. at 348.
35. Id.
36. Id. at 348-49.
37. Id. at 353.
38. See id. at 351-52 ("But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.").
39. Id. at 351-52.
40. Id. at 351.
41. Id. at 361 (Harlan, J., concurring) (developing requirement from precedent).
42. Id. at 361.
43. See, e.g., Minnesota v. Olsen, 495 U. S. 91, 97 (1990) (recognizing the Fourth Amendment standing for an overnight guest because he had "an expectation of privacy in the home that society is prepared to recognize as reasonable").
44. As Leonard Levy explained, "Congress made no provision for the liability, civil or criminal, of federal officers who violated the amendment." LEONARD W. LEVY, ORIGINAL INTENT AND THE FRAMERS' CONSTITUTION 246 (1988).
45. Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 COLUM. L. REV. 1365, 1371 (1983).
46. 232 U. S. 383, 398 (1914).
47. Id. at 387.
48. Id. at 388.
49. Id. at 387-89.
50. Id. at 393.
51. United States v. Calandra, 414 U. S. 338, 347 (1974) ("Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure.").
52. Weeks, 232 U. S. at 398.
53. See Barron v. Mayor of Baltimore, 32 U. S. 243, 250 (1833) ("[The Bill of Rights] contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them.").
54. 338 U. S. 25, 26 (1949) ("The notion that the 'due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after impressive consideration. "). In dissent, Justice Murphy, joined by Justice Rutledge, condemned the Court's decision not to bind the states with Weeks's holding.
55. Id. at 41 (Murphy, J., dissenting) ("It is disheartening to find so much that is right in an opinion which seems to me so fundamentally wrong.... It is difficult for me to understand how the Court can go this far and yet be unwilling to make the step which can give some meaning to the pronouncements it utters.... For there is but one alternative to the rule of exclusion. That is no sanction at all.").
56. Id. at 25-26 (majority opinion).
57. Id. at 33.
58. See id. (referring to prosecutions in a "State court for a State crime" as not requiring exclusion of evidence where an unreasonable search and seizure occurred).
59. Id. at 31 (declining to "condemn as falling below the minimal standards assured by the Due Process Clause a State's reliance upon other methods which, if consistently enforced, would be equally effective").
60. Id. at 30. These other remedies included, but were not limited to, private actions against the police and internal discipline of the police officers.
61. Id. at 30-32 & nn. 1-2 (surveying treatment of improper searches by jurisdictions that rejected Weeks, and referencing the opinion of Judge Cardozo in People v. Defore, 150 N. E. 585, 586-89 (N. Y. 1926)).
62. 367 U. S. 643 (1961).
63. Id. at 653 ("[T]he factual considerations supporting the failure of the Wolf Court to include the Weeks Exclusionary rule... could not, in any analysis, now be deemed controlling.").
64. Id. at 652.
65. Id. at 655.
66. Id. at 655-56.
67. Id. at 656.
68. United States v. Calandra, 414 U. S. 338, 348 (1974).
69. See Stone v. Powell, 428 U. S. 465, 494 (1976) (holding a state prisoner who was afforded a full and fair opportunity to litigate a Fourth Amendment claim may not obtain federal habeas corpus relief on the ground that unlawfully obtained evidence had been introduced at trial);
70. Calandra, 414 U. S. at 350-52 (declining to extend the exclusionary rule to grand jury proceedings).
71. Hudson v. Michigan, 547 U. S. 586, 591 (2006). In Hudson, the Court held that where the police executed a valid warrant but violated the knock-and-announce requirement, exclusion was inappropriate.
72. Id. at 594 ("Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.").
73. According to Justice Scalia, speaking for the majority, "the knock-and-announce rule protects human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident."
74. Id. Because this interest was unrelated to the seizure of evidence, the Court felt the exclusionary rule was "inapplicable" when officers fail to obey the Fourth Amendment's knock-and-announce requirement.
75. Id. at 594-95.
76. For a further discussion on the knock-and-announce requirement, see Wilson v. Arkansas, 514 U. S. 927, 929 (1995), which holds that the knock-and-announce principle is woven into the Fourth Amendment's reasonableness inquiry.
77. 468 U. S. 897 (1984).
78. Id. at 926 (creating a good faith exception to the exclusionary rule where the "officers' reliance on the magistrate's determination of probable cause was objectively reasonable").
79. Id. at 922.
80. Id. at 916.
81. Id.
82. Id. (referring to this as the "most important" basis for not applying exclusion to judges).
83. 129 S. Ct. 695, 704 (2009) (stating that a criminal should not benefit because law enforcement is negligent).
84. Id. (admitting evidence because "when police mistakes are the result of negligence... rather than systemic error or reckless disregard... any marginal deterrence does not 'pay its way'" (citing Leon, 468 U. S. at 907-08)).
85. Id. at 698-99.
86. Id. at 700.
87. Id. at 702.
88. Id. at 704 (quoting People v. Defore, 150 N. E. 585, 587 (N. Y. 1926) (Cardozo, J.)).
89. 267 U. S. 132, 149 (1925).
90. Id. at 134-36.
91. Id. at 136.
92. Id.
93. Id. at 134.
94. Id. at 151-53 ("[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.").
95. Id. at 156 (stating that "where reasonably practicable", a warrant is necessary).
96. This requirement was subsequently dropped from the automobile exception. See Brinegar v. United States, 338 U. S. 160, 164 (1949) (describing the Carroll decision as holding "a valid search of a vehicle moving on a public highway may be had without a warrant, but only if probable cause for the search exists");
97. John Michael Harlow, California v. Acevedo: The Ominous March of a Loyal Foot Soldier, 52 LA. L. REV. 1205, 1217 (1992) ("[T]he [Brinegar] Court ignored the requirement that the circumstances for getting a warrant must be impracticable.").
98. Carroll, 267 U. S. 132, 156 (1925) (declaring that an officer without a warrant "acts unlawfully and at his peril unless he can show the court probable cause").
99. See supra notes 23-33 and accompanying text.
100. See South Dakota v. Opperman, 428 U. S. 364, 367 (1976) (citing Carroll while explaining the "well-settled" distinction between automobiles and homes). Although the case involved an inventory search and does not deal with an automobile exception case, the Court recognized Carroll's inherent mobility rationale, while also professing a second rationale for the automobile exception - the diminished expectation of privacy in automobiles due to "pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements."
101. Id. at 368;
102. see also Cardwell v. Lewis, 417 U. S. 583, 590 (1974) ("One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves... as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.").
103. Arkansas v. Sanders, 442 U. S. 753, 763, 766 (1979).
104. United States v. Ross, 456 U. S. 798, 823 (1982) ("[A]n individual's expectation of privacy in a vehicle and its contents may not survive if probable cause is given to believe that the vehicle is transporting contraband.").
105. 500 U. S. 565 (1991).
106. Id. at 581 (Scalia, J., concurring).
107. Id. at 580.
108. Id.
109. 392 U. S. 1, 30 (1968) (granting police officers the authority to briefly stop a person and detain him for questioning if the officer is able to establish reasonable suspicion that "criminal activity may be afoot", a standard less than probable cause). In a Terry stop, the officer has the ability to frisk the person for weapons absent probable cause so long as the officer can "point to specific and articulable facts" leading him to believe his safety is in jeopardy.
110. Id. at 21, 30 (allowing officers to "conduct a carefully limited search of the outer clothing" of suspects).
111. Pennsylvania v. Mimms, 434 U. S. 106, 109-11 (1977).
112. Id. at 110 ("We think it too plain for argument that the State's proffered justification - the safety of the officer - is both legitimate and weighty.... [W]e have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile.");
113. see also United States v. Robinson, 414 U. S. 218, 234 n. 5 (1973) (noting that a significant percentage of police officer murders occur while the officer makes a routine traffic stop).
114. New York v. Belton, 453 U. S. 454, 457, 460 (1981).
115. For a general discussion on the constitutionality of searches incident to arrest, see Chimel v. California, 395 U. S. 752 (1969).
116. Arizona v. Gant, 129 S. Ct. 1710, 1718-19 (2009).
117. Brendlin v. California, 551 U. S. 249, 263 (2007) (holding a passenger, like a driver, is seized "from the moment [the car stopped by police comes] to a halt on the side of the road").
118. The passenger compartment is the interior of an automobile, including "closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment" the area, but "does not encompass the trunk." Belton, 453 U. S. at 460-61 n. 4 (1981).
119. Wyoming v. Houghton, 526 U. S. 295, 307 (1999) (holding police with probable cause to search a car may inspect a passenger's belongings, in this case a purse, found in the car when the belonging is "capable of concealing the object of the search").
120. Maryland v. Wilson, 519 U. S. 408, 415 (1997).
121. Arizona v. Johnson, 129 S. Ct. 781, 788 (2009) ("[The officer] was not constitutionally required to give [the passenger] an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.");
122. see also Knowles v. Iowa, 525 U. S. 113, 117-18 (1998) (explaining in dicta that officers conducting routine traffic stops may perform a pat-down of a driver and any passengers based on reasonable suspicion they are dangerous).
123. See, e.g., Wilson v. United States, 218 F.2d 754, 756 (10th Cir. 1955) (explaining the motion to suppress was properly denied because "[t]he law is well settled that the protection of the Fourth Amendment to the Constitution against unreasonable search and seizure is personal to the one asserting it, and one who claims no proprietary or possessory interest in that which has been seized as a result of a search may not object to its introduction in evidence");
124. Jeffers v. United States, 187 F.2d 498, 500 (D. C. Cir. 1950) (suppressing evidence on other grounds, yet stating that an "accused does not have standing to prevent the admission of evidence obtained by an unlawful search and seizure which did not infringe his own personal rights protected by the Amendment")
125. aff'd, 342 U. S. 48 (1951).
126. Jones v. United States, 362 U. S. 257, 261 (1960).
127. Id.
128. Id. at 267. The Jones Court also stated that "possession on the basis of which petitioner is to be and was convicted suffices to give him standing." Id. at 264.
129. This statement, granting standing simply because a person was arrested for possession, has been interpreted as the "automatic standing rule." United States v. Salvucci, 448 U. S. 83, 84-85 (1980).
130. The rule was explicitly overruled. Id. at 85.
131. 394 U. S. 165 (1969).
132. Id. at 174 ("[T]here is a substantial difference for constitutional purposes between preventing the incrimination of a defendant through the very evidence illegally seized from him and suppressing evidence on the motion of a party who cannot claim this predicate for exclusion. "). Thus, evidence may be suppressed against one defendant but constitutionally admitted against a coconspirator or a codefendant.
133. Id. at 172 ("Coconspirators and codefendants have been accorded no special standing.").
134. 448 U. S. 83 (1980).
135. Id. at 85.
136. 439 U. S. 128, 148 (1978).
137. Id. at 130.
138. Id.
139. Id. at 130-31.
140. Id. at 139. The Court, however, still acknowledged the importance of the defendants' lack of ownership of both the automobile and the rifle.
141. Id. at 140 (mentioning that defendants "were passengers in a car which they neither owned nor leased").
142. Id. at 139.
143. Id. at 142-43. The Court did emphasize, however, it was not disagreeing with the conclusion in Jones that Jones's Fourth Amendment rights were violated.
144. Id. at 141.
145. Id. at 143.
146. Justin E. Simmons, Comment, Hertz and the Fourth Amendment: A Post-Rakas Examination of an Unauthorized Driver's Standing to Challenge the Legality of a Rental Car Search, 15 GEO. MASON. L. REV. 479, 491 (2008).
147. This Note refers to an "unauthorized driver" as necessarily having the renter's permission. Technically speaking, this is not required for an unauthorized driver. A person who steals a rental car would also be an "unauthorized driver" because the thief did not have the renter's (or owner's) permission. In such a situation, however, the driver would probably (definitely in this Note) not be referred to as an "unauthorized driver" but rather as the "thief or the "driver of the stolen vehicle."
148. See United States v. Thomas, 447 F.3d 1191, 1196 (9th Cir. 2006).
149. See, e.g., id. at 1195.
150. The Court has been inconsistent in its treatment of the relevance of good and bad faith in Fourth Amendment jurisprudence. Compare Whren v. United States, 517 U. S. 806, 814 (1996) ("[T]he Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent.")
151. with United States v. Leon, 468 U. S. 897, 926 (1984) (allowing a good faith exception to the exclusionary rule). While a thorough discussion of the proper treatment of good and bad faith in Fourth Amendment jurisprudence is beyond the scope of this Note, it is the author's opinion that the driver's good faith is irrelevant. The cases indicate a pattern where an officer's good faith mistake but not his bad faith intention matters for Fourth Amendment purposes. No case, however, has indicated that a defendant's knowledge, or good and bad faith, is relevant.
152. See Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) ("The doctrine of standing is one of several doctrines that... requires federal courts to satisfy themselves that 'the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction. '" (quoting Warth v. Seldin, 422 U. S. 490, 498-99 (1975)));
153. Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 221 (1974) ("[T]here is a real need to exercise the power of judicial review in order to protect the interests of the complaining party." (emphasis added));
154. Alderman v. United States, 394 U. S. 165, 174-75 (1969) ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.").
155. See Rakas v. Illinois, 439 U. S. 128, 134 (1978) (explaining that "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed" and while that third party can raise a Fourth Amendment violation, the person aggrieved cannot).
156. See United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994);
157. United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990);
158. United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990).
159. See United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006);
160. United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) ("If [the renter] had granted Best permission to use the automobile, Best would have a privacy interest giving rise to standing.").
161. Thomas, 447 F.3d at 1199;
162. Best, 135 F.3d at 1225.
163. See United States v. Smith, 263 F.3d 571, 586-87 (6th Cir. 2001) (identifying five factors that established a legitimate expectation of privacy for defendant).
164. Id. at 586.
165. One could also create a fourth category. In this situation, a driver borrows a car from a person he believes to be either the owner of the car or somebody with the authority to grant the driver permission to use the vehicle. In reality, however, the person has no authority to grant the driver permission. To this author's knowledge, no court has definitively ruled on this situation. Some may suggest this is no different from an unauthorized rental car driver, but such a suggestion would be misplaced. A rental agreement involves a contractual obligation which is lacking in this hypothetical situation. This contractual obligation significantly alters and differentiates the two situations. While the treatment of such a person is clearly an important issue, both extrapolating a court's treatment of such a person and suggesting the proper treatment potentially involve issues of good faith, mistaken knowledge, and willful ignorance, and are well beyond the scope of this Note.
166. See supra note 117.
167. *1-2 ("[T]he right of property... that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe."). While the right to exclude (and other property concepts) goes into the determination of a legitimate expectation of privacy, it is not always sufficient to establish such with respect to activity conducted on (or in) the property.
168. See Rakas v. Illinois, 439 U. S. 128, 143 n. 12 (1978).
169. See Rakas, 439 U. S. at 148 (denying standing to petitioners because they "asserted neither a property nor a possessory interest in the automobile");
170. cf. United States v. McBean, 861 F.2d 1570, 1574 (11th Cir. 1988) (denying standing to challenge a Fourth Amendment violation based on a disavowal of ownership).
171. See United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) ("Where the defendant offers sufficient evidence indicating that he has permission of the owner to use the vehicle, the defendant plainly has a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.");
172. United States v. Garcia, 897 F.2d 1413, 1419 (7th Cir. 1990);
173. United States v. Miller, 821 F.2d 546, 548 (11th Cir. 1987);
174. United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980) ("Here, [defendant] had both 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. [Defendant], therefore, possesses the requisite legitimate expectation of privacy necessary to challenge the propriety of the search.").
175. See, e.g., United States v. Walker, 237 F.3d 845, 849 (7th Cir. 2001).
176. See United States v. Caymen, 404 F.3d 1196, 1201 (9th Cir. 2005) ("[O]ne who takes property by theft or fraud cannot reasonably expect to retain possession and exclude others.... Whatever expectation of privacy he might assert is not a legitimate expectation that society is prepared to honor.");
177. United States v. Tropiano, 50 F.3d 157, 161 (2d Cir. 1995);
178. United States v. Lanford, 838 F.2d 1351, 1353 (5th Cir. 1988);
179. United States v. Hensel, 672 F.2d 578, 579 (6th Cir. 1982);
180. United States v. Hargrove, 647 F.2d 411, 413 (4th Cir. 1981).
181. Rakas, 439 U. S. at 148 ("[Petitioners] asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.... [T]hat they were in the car with the permission of its owner is not determinative of whether they had a legitimate expectation of privacy in the particular areas of the automobile searched.");
182. Portillo, 633 F.2d at 1317.
183. See Wyoming v. Houghton, 526 U. S. 295, 302 (1999) (allowing defendant passenger to challenge a search of her purse located in an automobile);
184. United States v. Edwards, 242 F.3d 928, 936-37 (10th Cir. 2001) (holding defendant has standing to challenge the search of his or her personal luggage in the trunk of a car even if he had no standing to challenge the search of the car);
185. cf. McBean, 861 F.2d at 1574 (denying standing to challenge search of luggage found in automobile because defendant had disavowed ownership of the luggage, even though there was no possessory interest in the automobile itself).
186. See United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984).
187. Id.
188. Id. at 1373.
189. Id. At the hearing, Obregon testified an unrelated third party arranged the car rental.
190. Id. at 1374. Obregon waited outside the Miami airport while this third party went inside to rent the car.
191. Id.
192. Id. at 1373.
193. Id.
194. Id.
195. Id. at 1374. Even though Obregon consented, if the stop was illegal, then any subsequent actions must be suppressed as "fruit of the poisonous tree."
196. See Wong Sun v. United States, 371 U. S. 471, 488 (1963).
197. Obregon, 748 F.2d at 1374-75.
198. 732 F.2d 788 (10th Cir. 1984).
199. Id. at 789.
200. Id. at 790.
201. Id. (emphasis added).
202. Obregon, 748 F.2d at 1375.
203. 918 F.2d 885, 887 (10th Cir. 1990).
204. Id. at 886.
205. Id. at 887 (characterizing the case as "almost on all fours" with Obregon).
206. Id.
207. See supra Part IV. A.
208. See Roper, 918 F.2d at 888.
209. Id.
210. 909 p. 2d 111, 117 (5th Cir. 1990) ("Boruff had no legitimate expectation of privacy in the rental car." (citing United States v. Obregon, 573 F. Supp. 876, 879-80 (10th Cir. 1984))).
211. Id. at 113.
212. Id.
213. Id. at 113-14.
214. Id. at 114.
215. Id.
216. Id.
217. Id.
218. Id. at 115. Boruff also attempted to establish standing with regard to the pickup truck.
219. Id. The court concluded, however, that Boruff had no standing to challenge the search of the truck because he completely disassociated himself from the truck.
220. Id. at 116. Boruff told the officers he had no knowledge or interest in the truck, and he was not present when the truck was searched.
221. Id. Additionally, Boruff challenged the legality of the stop.
222. Id. at 117. This argument also failed because roving border patrols, such as the one here, "may stop vehicles near the border if the agents have reasonable suspicion that the vehicles contain contraband or illegal aliens."
223. Id. (citing United States v. Cortez, 449 U. S. 411, 417-18 (1981)).
224. Id. at 117.
225. Id. at 114, 117.
226. Id.
227. Id. at 117 (reaching its decision in part because defendant knew about the rental restrictions).
228. The court did not discuss what would happen if an unauthorized driver was unaware of the rental agreement's terms. A few months prior to Boruff, the Fifth Circuit decided United States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir. 1990).
229. In Kye Soo Lee, the court found that two men who were hired to drive a truck, rented by an unrelated and absent third party, had standing to raise a Fourth Amendment claim.
230. Id. at 1038. The court reasoned that if a person borrows an automobile from an owner with that owner's consent, the borrower has standing.
231. Id. Though Kye Soo Lee did not distinguish rented cars from owned cars and has not been explicitly overruled, no court in the Fifth Circuit has cited Kye Soo Lee for this proposition as related to rented vehicles. In fact, Boruff fails to mention Kye Soo Lee at all. However, courts both inside and outside the Fifth Circuit have identified Boruff as the controlling law in the circuit.
232. See, e.g., United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994) (citing Boruff For the proposition that an unauthorized driver of a rental car has no legitimate privacy interest and therefore cannot raise a Fourth Amendment claim);
233. United States v. Vaughns, 202 F. Supp. 2d 572, 576 (E. D. Tex. 2001).
234. 32 F.3d 117 (4th Cir. 1994).
235. Id. at 119.
236. Id. at 118.
237. Id.
238. Id.
239. Id. at 119.
240. Id.
241. Id.
242. Id. In addition to challenging the general search of the automobile, Wellons unsuccessfully challenged the specific search of the closed luggage.
243. Id. Quoting United States v. Hargrove, 647 F.2d 411, 413 (4th Cir. 1981)
244. the court stated that "one who can assert no legitimate claim to the car he was driving cannot reasonably assert an expectation of privacy in a bag found in that automobile." Wellons, 32 F.2d at 119-20.
245. Wellons, 32 F.2d at 119 n. 2.
246. See id. (comparing the Wellons case to Hargrove, 647 F.2d at 413, in which the driver of a stolen car did not have a reasonable expectation of privacy in a stolen vehicle).
247. See United States v. Mincey, 321 Fed. App'x 233, 240 (4th Cir. 2008).
248. Id. at 239 ("[I]t is well settled that only where a search intrudes upon a space as to which an individual has 'a legitimate expectation of privacy' may the individual contest the search on Fourth Amendment grounds." (citing Wellons, 32 F.3d at 119)).
249. Id. at 239-40 ("[T]he only question presented is whether [Mincey's] subjective expectation of privacy was objectively reasonable, thus rendering it 'legitimate' and entitled to Fourth Amendment protection.... [A]n unauthorized driver of a rental vehicle has no legitimate privacy interest in the vehicle....");
250. Wellons, 32 F.3d at 119.
251. See United States v. Thomas, 447 F.3d 1191, 1199 (2006).
252. 58 F.3d 353 (8th Cir. 1995).
253. Id. at 354.
254. Id.
255. Id.
256. Id. at 355.
257. Id. ("[T]he defendant must demonstrate (1) a subjective expectation of privacy; and (2) that the subjective expectation is one that society is prepared to recognize as objectively reasonable....").
258. Id. (emphasis added).
259. 135 F.3d 1223 (8th Cir. 1998) (reiterating that the Muhammad ruling hinged on the absence of evidence that the authorized driver had granted Muhammad permission to drive the car and directing the court below to determine if Best had permission on remand).
260. Id. at 1224.
261. Id.
262. Id.
263. Id.
264. See id. at 1225 (finding the search improper because searching inside car doors was not standard search procedure);
265. see also South Dakota v. Opperman, 428 U. S. 364, 372-73 (1976) (explaining that a warrantless inventory search must be done pursuant to standard police procedures and must be done in order to protect the car and its contents).
266. Best, 135 F.3d at 1226.
267. Id.
268. Id. at 1225.
269. 447 F.3d 1191 (9th Cir. 2006).
270. Id. at 1194.
271. Id. The use of tracking devices and beepers is constitutional.
272. See United States v. Knotts, 460 U. S. 276, 285 (1983) (holding that placing a beeper in a container of chemicals to track its movement did not invade any legitimate expectation of privacy and that this was neither search nor seizure);
273. United States v. Butts, 729 F.2d 1514, 1517 (5th Cir. 1984) ("[M]onitoring signals from an electronic tracking device that tells officers no more than [location]... does not violate any reasonable expectation of privacy.... The movement... of an automobile on a highway[] is not something in which a person can claim a reasonable expectation of privacy.").
274. Thomas, 447 F.3d at 1195.
275. Id.
276. Id. Had McGuffey been in the car, the situation would have been no different. McGuffey may have had a Fourth Amendment challenge, but Thomas still would not.
277. See Rakas v. Illinois, 439 U. S. 128, 134 (1978) (explaining that "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed" and while that third party can raise a Fourth Amendment violation, the person aggrieved cannot).
278. Thomas, 447 F.3d at 1195.
279. Id.
280. Id.
281. Id. at 1199. The Court focused solely on the standing issue and did not discuss the applicability of the automobile exception or inevitable discovery.
282. Id. at 1199 n. 9. Moreover, the search could not be validated as a search incident to arrest because car searches incident to arrests exclude the trunk.
283. See New York v. Belton, 453 U. S. 454, 461 n. 4 (1981) (explaining that the search may encompass "only the interior of the passenger compartment of an automobile and does not encompass the trunk").
284. Thomas, 447 F.3d at 1198-99.
285. For a discussion of the treatment of a non-owner authorized driver, see supra note 128 and accompanying text.
286. Id. at 1198.
287. See also, e.g., United States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2001) ("The Eleventh Circuit has held that a lessee may have a reasonable expectation of privacy in a rental car even after the rental agreement has expired.... We find this reasoning persuasive....").
288. Thomas, 447 F.3d at 1199.
289. Compare United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994) (finding defendant had no legitimate expectation of privacy in rental vehicle when he was not authorized by the rental agreement)
290. United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990) (finding defendant had no standing when rental agreement did not give the renter authority to give defendant control of the car)
291. and United States v. Obregon, 748 F.2d 1371, 1375 (10th Cir. 1984) (finding no clear error in denying defendant standing when he did not rent the vehicle)
292. with Thomas, 447 F.3d at 1198-99 (holding that the court "cannot base constitutional standing entirely on a rental agreement to which the unauthorized driver was not a party [that] may not capture the nature of the unauthorized driver's use of the car")
293. and United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) (disregarding terms of rental agreement and declaring defendant had standing if renter gave defendant permission to use the rental vehicle).
294. *2-3 (6th Cir. Oct. 22, 1990). Because the court ruled the arrest was lawful, a search of the vehicle was also lawful, and the evidence admissible regardless of the standing determination.
295. Id. The court did, however, discuss the issue in dicta. The court stated that Frederickson would not have standing because she failed to establish a legitimate expectation of privacy; she was either a passenger, or, if her story of switching seats with the other occupant upon being stopped was believed, she was an unauthorized driver not carrying a driver's license. Id. (recognizing Fredrickson would lack standing because her name was not on the rental agreement and she carried no driver's license). The court made no mention of the five factors discussed in United States v. Smith, 263 F.3d 571, 586-87 (6th Cir. 2001), or of a balancing test.
296. See infra text accompanying note 223.
297. 263 F.3d 571.
298. Id. at 575.
299. Id.
300. Id. at 575-76.
301. Id. at 576.
302. Id.
303. Id.
304. Id. at 577.
305. Id. at 586.
306. Id. ("[A]n unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle, and therefore does not have standing to contest the legality of a search of the vehicle.").
307. Id.
308. Id. at 587.
309. Id. at 586-87.
310. Id. at 586 (emphasizing that law and society would recognize Smith's marital relationship with the renter and his business relationship with the rental company, both of which support his legitimate expectation of privacy in the vehicle).
311. Id. at 587. Of course, Rakas established that the ability and the right to exclude is not the determinative factor for a finding of standing.
312. See Rakas v. Illinois, 439 U. S. 128, 143 n. 12 (1978) (recognizing that even though property ownership, along with its inherent right to exclude, often confers standing, "even a property interest in [a searched] premises may not be sufficient to establish a legitimate expectation of privacy").
313. The Smith court likely used this reasoning as an additional consideration to further support the outcome of the balancing test it had just conducted.
314. 447 F.3d 1191, 1198 (9th Cir. 2006) (rejecting contention that a defendant not listed on a rental agreement lacks standing to challenge a search of a rental vehicle);
315. see supra text accompanying notes 114-16, 207-09.
316. Smith, 263 F.3d at 587.
317. Id.
318. 133 F.3d 1394 (11th Cir. 1998).
319. Id. at 1402 (holding that while Cooper's failure to extend his rental on the vehicle subjected him to civil liability, Cooper "retained a sufficient amount of control and possession over the rental car" to retain standing to challenge a search of the car).
320. Id. at 1401. The Supreme Court's supposed disfavor of "hard-and-fast" rules is not as clear as Cooper suggests.
321. See infra note 254 and accompanying text.
322. Cooper, 133 F.3d at 1402.
323. 542 F. Supp. 2d 1267 (M. D. Fla. 2008).
324. Id. at 1270.
325. Id. at 1270-71.
326. Id. at 1271.
327. Id.
328. Id.
329. Id. at 1269.
330. Id. at 1276 (adding that it was not even clear that Crisp ever had an expectation of privacy in the rental vehicle, whereas the Cooper defendant had an expectation of privacy before the rental agreement expired).
331. Id. at 1279 (bypassing the question of whether an unauthorized, duly licensed driver with the renter's permission had standing to challenge a search of a rental car).
332. Id.
333. Id.
334. It is entirely possible that a circuit court will use different factors to determine a defendant's standing.
335. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001).
336. The court did state that the prior business relationship was the most important factor, but it never explained just how important in comparison to the other factors.
337. See id.
338. Rakas v. Illinois, 439 U. S. 128, 155-56 (1978) (Powell, J., concurring);
339. see also Matthew M. Shafae, Note, United States v. Thomas: Ninth Circuit Misunder-"Standing": Why Permission to Drive Should Not Be Necessary to Create an Expectation of Privacy in a Rental Car, 37 GOLDEN GATE U. L. REV. 589, 608 (2007) ("In order to remain true to core Fourth Amendment principles, courts must conduct an exhaustive analysis.... Only through an analysis of the totality of the circumstances may courts accurately gauge each specific situation. ").
340. Rakas, 439 U. S. at 156 (Powell, J., concurring).
341. Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing "Bright Lines" and "Good Faith", 43 U. PITT. L. REV. 307, 321 (1982)
342. (quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 375 (1974)).
343. Such a concern is not that far-fetched. See Joe Sexton, New York Police Often Lie Under Oath, Report Says, N. Y. TIMES, Apr. 22, 1994, at A1 (describing how New York police officers routinely perjure themselves on the stand to prevent evidence suppression).
344. Wayne R. LaFave, "Case-By-Case Adjudication" Versus "Standardized Procedures": The Robinson Dilemma, 1974 SUP. CT. REV. 127, 141
345. (quoting United States v. Robinson, 471 F.2d 1082, 1122 (D. C. Cir. 1972) (Wilkey, J., dissenting)).
346. Atwater v. City of Lago Vista, 532 U. S. 318, 321 (2000);
347. see also United States v. Robinson, 414 U. S. 218, 235 (1973) ("A police officer's determination... is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search."). The Court's preference for a bright-line test can also be seen in Arizona v. Roberson, 486 U. S. 675 (1988).
348. Although Roberson is a Fifth Amendment self-incrimination case, its reasoning is equally applicable to a Fourth Amendment search and seizure. See id. at 681 ("We have repeatedly emphasized the virtues of a bright-line rule.... [W]e explained that the 'relatively rigid requirement... has the virtue of informing police and prosecutors with specificity as to what they may do....'"
349. (quoting Fare v. Michael C, 442 U. S. 707, 718 (1979))).
350. Rakas, 439 U. S. at 168 (White, J., dissenting).
351. As some will no doubt suggest, all of the concerns with a balancing test can also be addressed by requiring probable cause before any search. While this is theoretically possible, a requirement of probable cause would not completely solve the problem. Requiring subjective probable cause raises problems similar to those raised by the balancing test: after the fact probable cause determinations, second-guessing by judges, and increased trial costs and time. Additionally, the policies behind the automobile exception cut against such a strict requirement.
352. See supra Part II. Most importantly, however, no court has adopted, or even suggested, such an approach, not even the more defendant-friendly Eighth and Ninth Circuits. That no court has even entertained the proposition suggests the impracticality of such a rule.
353. See United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir. 2006);
354. United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995).
355. See Rakas v. Illinois, 439 U. S. 128, 143 (1978) ("[T]o claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.").
356. 362 U. S. 257, 267 (1960).
357. 495 U. S. 91, 96-97, 99-100 (1990).
358. See Simmons, supra note 113, at 506-10 (2008) (arguing for the adoption of the Eighth and Ninth Circuits' bright-line rule throughout the federal circuits on the grounds it is most consistent with the Fourth Amendment).
359. See Jones, 362 U. S. at 267;
360. see also Olsen, 495 U. S. at 96-97, 99-100.
361. See, e.g., Simmons, supra note 113, at 501-02.
362. See id. at 502.
363. Jones, 362 U. S. at 267;
364. see also Rakas v. Illinois, 439 U. S. 128, 141-42 (1978).
365. See supra Part II.
366. See Carroll v. United States, 267 U. S. 132, 152-53 (1925) (explaining the longstanding differentiation between a "dwelling house", where a search warrant was necessary and a "movable vessel" such as a car, where one was not).
367. Compare Simmons, supra note 113, at 502 ("[A]n unauthorized driver [is] like an overnight guest in a host's home....")
368. with United States v. Wellons, 32 F.3d 117, 119 n. 2 (4th Cir. 1994) (likening the situation of an unauthorized driver of a rental car to a driver of a stolen vehicle).
369. See Jones, 362 U. S. at 267 (explaining that the "legitimately on premises" rationale would "not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched");
370. Minnesota v. Olsen, 495 U. S. 91, 99 (1990) ("The houseguest is there with the permission of his host, who is willing to share his house and his privacy.... On the other hand, few houseguests will invite others to visit them while they are guests without consulting their hosts....").
371. See United States v. Silva, 470 F. Supp. 2d 1202, 1208 (D. Haw. 2006) ("Although explicit permission to borrow or use a car is certainly one method to prove an expectation of privacy, it is not the sole method... [g]iven the totality of the circumstances....").
372. See supra text accompanying notes 249-55.
373. See Wellons, 32 F.3d 117;
374. United States v. Boruff, 909 F.2d 111 (5th Cir. 1990);
375. United States v. Obregon, 748 F.2d 1371 (10th Cir. 1984).
376. See supra note 12.
377. See Wellons, 32 F.3d at 119 n. 2.
378. See United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984).
379. See, e.g., United States v. Tropiano, 50 F.3d 157, 161 (2d Cir. 1995) ("[W]e think it obvious that a defendant who knowingly possesses a stolen car has no legitimate expectation of privacy in the car.").
380. See Simmons, supra note 113, at 505 ("[A]lthough an unauthorized driver's use of a rental car may be a violation of the terms of a rental agreement, it does not follow that he or she is foreclosed from claiming the protection of the Fourth Amendment.").
381. See Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring).
382. See United States v. Erickson, 732 F.2d 788, 790 (10th Cir. 1984).
383. See Simmons, supra note 113, at 506.
384. See United States v. Roper, 918 F.2d 885, 888 (10th Cir. 1990) (denying standing to challenge a Fourth Amendment violation because the defendant was not "in lawful possession or custody of the vehicle").
385. Cf. CINDERELLA (Walt Disney Pictures 1950).
386. Of course, the situation would be quite different if the rental car was days or weeks overdue, as opposed to a few hours or minutes. The latter, not the former, is the hypothetical raised by the critics of the bright-line rule.
387. See, e.g., Simmons, supra note 113, at 505-06.
388. See United States v. Cooper, 133 F.3d 1394, 1398-99 (11th Cir. 1998) (granting standing to an overdue rental car driver because the driver's expectation of privacy is reasonable and society should recognize it as legitimate).
389. However, because Cooper arose in the Eleventh Circuit, which has yet to adopt an explicit position on unauthorized drivers, no clues can be drawn as to how the Fourth, Fifth, and Tenth Circuits would reconcile an overdue driver with an unauthorized driver.
390. See, e.g., Budget.com, Budget Fastbreak Service Terms and Conditions Effective for Reservations Made on or After January 15, 2009, ¶ 9, http://www.budget.com/budgetWeb /html/en/profile/master-printable.html (Jan. 2, 2009) (charging a fee for late return);
391. Hertz.com, Additional Driver Not Signed On Contract, https://hertz. custhelp. com (search "Additional Driver Not Signed On Contract"; select "Additional Driver Not Signed On Contract") (last visited Apr. 6, 2009) ("Late returns can affect the type of rate assigned to the rental.... [I]f you only want to extend by one day past the original due date and have not made any other changes, it is not necessary to call. You will be charged the extra day price that appears on your Rental Agreement.").
392. U. S. CONST, amend. IV (emphasis added).
393. See Delaware v. Prouse, 440 U. S. 648, 653-54 (1979) (stating that the "essential purpose" of the Fourth Amendment is to "impose a standard of 'reasonableness'");
394. cf. Griffin v. Wisconsin, 483 U. S. 868, 872 (1987) (holding a warrantless home search did not violate the Fourth Amendment because it satisfied the Fourth Amendment's reasonableness requirement).