Noting the different approaches of the circuits to the standing of a driver of a rental car who is not on the contract but operating with permission of the renter, the totality of circumstances test is adopted, and he lacks standing. He urged this test be applied, lost before the USMJ, and argues against it on review. That’s the standard likely to be adopted in the circuit, on this record, he lacks standing. United States v. McCray, 2017 U.S. Dist. LEXIS 115689 (N.D. Ga. July 25, 2017), adopting 2017 U.S. Dist. LEXIS 116033 (N.D. Ga. June 15, 2017):
The Eleventh Circuit has not decided “whether an unlicensed and unauthorized driver of a rental car has standing to challenge the search of the rented vehicle,” and “[t]he circuits that have considered the issue are split.” Gayle, 608 F. App’x at 788-89. The Gayle court described the split among the circuit courts as follows:
The Fourth, Fifth, and Tenth Circuits have held that unauthorized drivers of rental vehicles never have standing to challenge a vehicle search. United 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. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984). On the other hand, the Eighth and Ninth Circuits have held that an unauthorized driver may challenge the search of a rental vehicle if he can establish that he had permission from the authorized driver to use the vehicle. 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). The Third and Sixth Circuits have determined that an unauthorized driver does not have standing to challenge the search, but has noted the possibility that exceptional circumstances might create the legitimate expectation of privacy. United States v. Kennedy, 638 F.3d 159, 165 (3d Cir. 2011); United States v. Smith, 263 F.3d 571, 586-87 (6th Cir. 2001).
District judges in our Circuit have decided whether unauthorized drivers of rental cars have standing to contest a search of a rental vehicle. …