Unauthorized driver of a rental car did not have a reasonable expectation of privacy

Recognizing a split of authority among the circuits, and an absence of controlling precedent in the Eleventh Circuit, the Middle District of Florida follows the weight of authority and holds that an unauthorized driver does not have standing in a rental car. United States v. Crisp, 542 F. Supp. 2d 1267 (M.D. Fla. 2008):

While the Eleventh Circuit has remained silent on the issue before this Court, several other circuit courts of appeal have issued decisions considering whether an unauthorized driver of a rented vehicle can challenge a search of that vehicle. Indeed, the Fourth, Fifth, Sixth, and Tenth Circuit Courts of Appeal have recognized that, as a general proposition, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle, even though he or she received permission from the lessee to operate it. See United States v. Seeley, 331 F.3d 471, 472 (5th Cir. 2003) (per curiam); United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001 ); United States v. Edwards, 242 F.3d 928, 936 (10th Cir. 2001); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990); United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984).

Some decisions from the Eighth and Ninth Circuit Courts of Appeals, on the other hand, arguably support the conclusion that an unauthorized driver of a rental vehicle, who has permission from the authorized lessee, can challenge the search of that vehicle. See United States v. Thomas, 447 F.3d 1191, 1198-99 (9th Cir. 2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (per curiam); see also United States v. Dennis, Criminal Action No. 06-650-01, 2007 U.S. Dist. LEXIS 54526, 2007 WL 2173394, at **5-6 (E.D. Penn. July 26, 2007). Upon review, however, these decisions are less persuasive. For example, in Thomas, the court opined that “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.” 447 F.3d at 1199. In reaching this conclusion, the Ninth Circuit specifically relied on its previous decisions establishing that a holdover lessee and a driver who has permission from the owner to use a vehicle both have reasonable expectations of privacy. See id. at 1198. However, the Eleventh Circuit, in its decisions on these issues, explicitly noted a distinction between one who has permission of the owner or properly rented a vehicle (but breached the contract by not returning the vehicle as promised) and one who, without authorization from the owner, simply utilizes the vehicle, albeit with permission from the renter. See Cooper, 133 F.3d at 1400; Miller, 821 F.2d at 548.