The E.D. Pa. discusses the circuit split on the question of whether a person driving a rental car rented by another has standing to contest a search of the car. The court divines that the Third Circuit would follow the totality of circumstances test and find standing. The car was reasonably impounded on the request of the owner because the owner was unaware of the defendant's permission to drive the car. United States v. Kennedy, 2007 U.S. Dist. LEXIS 43511 (E.D. Pa. June 15, 2007):

1. Defendant Has Standing to Contest the Searches of the Car

As mentioned above, to contest the legality of a search an individual must establish both a subjective expectation of privacy in the place searched and that such expectation is objectively reasonable. Carter, 525 U.S. at 88. The Third Circuit has not addressed standing in the context of rental cars driven by unauthorized drivers. In a case involving a borrowed car, however, the Third Circuit noted that "whether the driver of a car has the reasonable expectation of privacy necessary to show Fourth Amendment standing is a fact-bound question dependent on the strength of his interest in the car and the nature of his control over it; ownership is not necessary." United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000).

The circuits that have addressed the issue are split. The Fourth, Fifth, and Tenth Circuits have adopted a bright-line rule, holding that if an individual is not listed on the rental agreement, then he does not have a reasonable expectation of privacy in the rented vehicle. See United States v. Thomas, 447 F.3d 1191, 1197 (9th Cir. 2006) (collecting cases). Even an unauthorized driver who had permission from an authorized user has no legitimate expectation of privacy in the car. Despite the laudable qualities of this standard--including ease of applicability--it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis.

Perhaps for this reason, other circuits have decided against applying this test. For example, the Eighth and Ninth Circuits have adopted a modified bright-line rule that allows standing to unauthorized drivers who can show permission to use the car from an authorized driver. Id. (citing United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)). Yet another approach examines the totality of the circumstances and considers 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 ...." Id. (citing United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001)).

It is an open question in the Third Circuit whether unauthorized drivers can ever establish a legitimate expectation of privacy in a rental car. The framework set forth in Baker, however, may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test. In Baker, the court noted that a "fact-bound" inquiry assessing "the strength of [the driver's] interest in the car and the nature of his control over it" is necessary in determining whether someone who borrowed a car had a reasonable expectation of privacy in it. 221 F.3d at 442. Likewise, in denying standing to a passenger in a rented truck, a district court in the Western District of Pennsylvania concluded that the passenger was not an authorized driver, and, moreover, there was no evidence that he had ever driven the truck or had the authorized driver's permission to do so. United States v. Yamba, 407 F. Supp. 2d 703, 716 (W.D. Pa. 2006). The fact that the court in Yamba discussed factual matters beyond the passenger's status as an unauthorized driver suggests that it also predicted that a more nuanced test than the bright-line rule applies within the Third Circuit.

Assuming the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test, the evidence here supports the conclusion that Defendant had a reasonable expectation of privacy in the Camry. Defendant had a license, an authorized driver's permission to use the car, and, according to the police, was driving it earlier that day. (Tr. at 66-67.) Therefore, Defendant has standing to contest the seizure and searches of the car.

Spending the evening to do drugs in an apartment does not give the defendant standing to challenge the search of the house. This was more like Carter than Olson. United States v. Higareda, 2007 U.S. Dist. LEXIS 43609 (S.D. Cal. June 14, 2007):

The evidence in this case establishes that the Defendant Rameriz "de facto spent the night [at the apartment] doing drugs and hanging out with his friends with the permission of a lawful resident of the apartment Co-defendant Higareda." (Doc # 37 at 3-4.) This evidence supports only the inference that Defendant Rameriz was legitimately on the premises, which is insufficient to demonstrate a legitimate expectation of privacy. See Amenta, 69 F.3d at 309. Defendant Rameriz did not live at the apartment. The evidence establishes that Defendant Rameriz was not an overnight guest at the apartment such that he had "an expectation of privacy in the home that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 96-97. The evidence establishes only that Defendant Rameriz came to the apartment and remained with permission of Defendant Higareda in order to do drugs and hang out with friends, that the night passed, and that Defendant Rameriz was still there in the morning. Under these facts, Defendant Rameriz did not have a legitimate expectation of privacy in the residence of Defendant Higareda that society is prepared to recognize as reasonable.

Search incident that occurs immediately before an arrest for which there was already probable cause is valid. United States v. Thompson, 244 Fed. Appx. 926 (11th Cir. 2007)* (unpublished).

Officer's moving plaintiff out of his way by touching her arm did not constitute a seizure. "When vewing all the circumstances surrounding this incident, there is no evidence that an objective person in Plaintiff's position would have believed she was restrained, i.e., she was not free to leave. Plaintiff did not even subjectively believe she was not free to leave based on her testimony. Defendant physically moved Plaintiff out of his way, but did not give any indication that she was not free to leave. Accordingly, Plaintiff was not seized for purposes of the Fourth Amendment." McKeown v. Hairston, 2007 U.S. Dist. LEXIS 43490 (E.D. Mich. June 15, 2007).*

Defendant's dropping bag of crack and walking away from it was probable cause. United States v. Keely, 2007 U.S. Dist. LEXIS 43650 (E.D. Mo. June 15, 2007). (Comment: This is the first federal dropsy case I've seen in a long time.)

(More later: Federal appellate brief up next.)