*1
STATE of
Bobby CUTLER, Allen Defendant-
Appellant.
No. 31789. Appeals
Court of of Idaho.
Feb. 2007.
Review Denied June
Molly Huskey, Appellate J. State Public Defender; Curtis, Deputy Appel- Justin M. Defender, Boise, appellant. late Public for argued. Justin M. Curtis Wasden, Attorney Hon. Lawrence G. Gen- eral; Fleming, Deputy Attorney Lori A. Gen- eral, Boise, respondent. Fleming for Lori A. argued.
GUTIERREZ, Judge. Bobby appeals judg- Allen from his Cutler felony trafficking ments of conviction for methamphetamine and misdemeanor unlaw- entry, specifically challenging ful the denial suppress of his motion to We af- evidence. firm.
I. AND FACTS PROCEDURE ap- noticing traveling After vehicle mph proximately mph in a 25 zone at morning, around 8:30 one Officer Schultz Department pulled over the the Boise Police approached, driver. As the officer immediately shut the exited the vehicle and get requested door. Officer back Shultz open into the could not but Cutler the door because it was now locked with the keys inside. He the officer that another told keys apartment set оf was at his and re- *2 273 motion, guilty a conditional Denying Cutler entered to retrieve them. quested consent right appeal to the lower plea, reserving the to permission, Officer Shultz told Cutler suppress. to of his motion motorcycle court’s denial to the officer’s stand next appeal followed. This point momentarily paused and Cutler then fled the scene on foot. II. requested backup to secure
Officer Schultz give commenced to Cutler’s vehicle and ANALYSIS Cutler, Having apprehend chase. failed to court’s and, challenges the district along the vehicle with he returned to suppress mоtion to the evidence Lookhart, denial of his began investigate its Officer to driving, argu car he found in the rental was plate ownership. When he ran the license illegal an search. The ing product it is the through dispatch, number Officer Shultz dis- suppression of a motion is standard of review registered Budget covered the car was to on a motion to When a decision bifurcated. (Budget). Rental Car Officer Lookhart challenged, accept the trial suppress is we company called the and was told the findings supported fact which are who, court’s con- rented to Jonas Hernandez when еvidence, freely by but we review officer, substantial had loaned the tacted said he to friend, application principles of constitutional car to a Nick reached Stewart. When Atkinson, 128 the facts as found. State v. by telephone, Stewart said he had loaned the 559, 561, 1284, (Ct.App. Idaho 916 P.2d 1286 According vehicle to Cutler. to the rental 1996). suppression hearing, power At a expired days ear- which had four witnesses, lier, credibility of resolve only to assess the Hernandez was the authorized driv- conflicts, evidence, and draw weigh factual er. in the trial court. factual inferences is vested they Whеn asked whether wanted ve- Valdez-Molina, 127 Idaho State v. impounded pick hicle to or to it be wanted Schevers, (1995); 993, v. 897 P.2d 997 State However, up, Budget pri- elected the latter. (Ct. 659, 786, 789, 979 P.2d 662 132 Idaho (a truck) Budget’s representative or to tow App.1999). scene, arriving on the Schultz used a Officer jim” gain “slim entrance and conducted an Initially, court determined the district “inventory During search” of the car. standing2 Cutler did not search, course of the Officer Schultz discov- subsequent seizure on the the search and methamphetamine pocket in pipe ered author grounds that was not named as an backpack of the driver’s side door and on of the car and that he abandoned ized driver passenger in the floor front of the seat con- The by running from the scene. the vehicle taining baggies, glove, pipes, a rubber a sub- United States Fourth Amendment methamphetamine, appearing stance to be I, Constitution, § well as article 17 of the as citation, bearing traffic and mail Cutler’s Constitution, prohibit unreasonable Idaho name. However, if im a search is searches. proper, only to meth an individual with a substance was confirmed be amphetamine, charged and with interest invaded the search obtain Cutler was § Rаkas trafficking methamphetamine, suppression I.C. 37- of the evidence detected. 2732B(a)(4), Illinois, 128, 133-34, 421, § entry, 18- v. 439 U.S. 99 S.Ct. unlawful I.C. 387, (1978); 424-26, suppress 394-95 State 7034.1 He moved to the evidence Hanson, 716, 468, 711, 132 P.3d relating drug charge, arguing it was v. 142 Idaho Foldesi, v. 131 Ida illegal (Ct.App.2006); search of 473 State obtained course of 780, 1215, 778, (Ct.App. 963 P.2d 1217 the car. After the district court denied the ho entry charge the term as useful shorthand 1. The unlawful arose from an unre- continue use incident. lated the defendant had reference to whether place was searched such that in a that Hanson, the term 2. As we noted in State v. use of applicable any exclusionаry incrim- rule is "standing” technically in this context is inaccu inating evidence uncovered. 468, rate. 142 Idaho 716 n. 132 P.3d 473 Hanson, (Ct.App.2006). we n. 2 as 274
1998). Thus, allegedly e.g., challenged, a search search. See when unlawful United (10th Jones, has the burden v. defendant to make States F.3d Cir. 1995); Wellons, showing legitimate that he has a v. threshold United States F.3d (4th place Cir.1994); thing Boruff, v. United States (5th Cir.1990). Rawlings Kentucky, searched. 448 U.S. See also *3 98, 104, 100 2556, 2561, 633, Pabillore, 650, 653, 65 S.Ct. L.Ed.2d State v. 133 Idaho 991 Hanson, (1980); 717, 375, 641 142 (Ct.App.1999) at 132 P.2d (recognizing Idaho 378 the Peters, 474; 960, P.3d at State v. Idaho district that the 130 court’s determination defen 961-62, 1299, (Ct.App. standing 950 P.2d 1300-01 dant did not have because he was Holman, 1997); 382, 386, 109 State v. Idaho not the authorized driver of renter or a rent 493, (Ct.App.1985). 707 supported P.2d 497 In other al vehicle was numerous au thorities). words, seeking suppression a defendant must circuit adopting The courts this subjective expectation pri show had a approach of reason that because unautho vacy place thing or searched that property rized driver not have a does society willing recognize car, to as reasonable possessory in the the driver in light of all the circumstances. State v. expectation privacy does not have an of in Morris, 653, 961 131 Idaho P.2d 656 that car. (Ct.App.1998). Taking bright-line a view of thе modified approach Eighth are the and Ninth Circuit dispositive inquiry here is generally standing Courts which do not allow as an whether Cutler’s status unauthorized unless an driver can unauthorized show he extinguishes the rental car his driver of permission had authorized from the driver to standing challenge constitutionality the of e.g., the use vehicle. See United States v. possessed the legiti search or whether he a (9th Thomas, 1191, Cir.2006); 447 F.3d 1199 mate of expectation in the vehicle Best, 1223, United States v. 135 F.3d 1225 regardless of that fact. The extent to which (8th Muhammad, Cir.1998); vehicle, States v. the United driver of a rental who is neither (8th Cir.1995). 353, 58 F.3d the the an authorized 355 As renter nor driver under Thomas, recognized in the Ninth Circuit agreement, standing rental has to chal lenge approach essentially equates an question the vehicle is this unautho- a search of a first in It is rized driver ear with non- impression Idaho. an issue that of a rental the has disparate ap privately resultеd in at least three owner of a owned car. driver Thomas, proaches, (comparing with the most at 1197 the differences seen 447 F.3d Portillo, clearly split that has v. the evolved between rental scenario to United States (9th Cir.1980), 1313, the circuit courts. 633 F.2d 1317 federal which standing held that a non-owner has to chal- approach, espoused by the The first lenge “permission a has search where he Fifth,3 Fourth, Courts, and Tenth Circuit is a keys and the use his friend’s automobile bright-line solely looking rule to the rental trunk, ignition the and the with which he agreement. circuit These courts have deter- others, friend, his could exclude all save driving or occupying mined that one a rental owner”). renter vehicle who is not the and is not rejected Finally, a company the rental to drive Circuit Court authorized Sixth a bright-line approach totality if he or she in favor of has driver, inquiry. is an United States v. person who authorized circumstances Cir.2001). (6th Smith, hаs 263 F.3d no reasonable consequently standing recognized presumption the vehicle and lacks While court do not have complain subjection of the vehicle’s to an that unauthorized drivers stand- case, Kye Soo Lee as "not 3. The Circuit has an outlier United distanced themselves from Fifth Lee, (5th Kye F.2d controlling Soo Cir. States v. it neither nor ... because reflects 1990), which concluded that an unauthorized agreement.” ... rental addresses the terms of the standing challenge the search driver Thomas, United States 447 F.3d 1196 n. v. the driver a rental vehicle if had the renter’s (9th Cir.2006) Seeley, (quoting United States permission. more rеcent Fifth Circuit (5th Cir.2003)). 472 n. 1 bright-line approach cases have followed important. search, factors were considered it determined that Several ing to First, given that we noted that Smith was “rigid inappropriate, test is the Court had a not ille- [a defendant] must determine whether and it was therefore licensed driver legitimate expectation of driving place. first gal him to be for surrounding light of all the reasonable Second, significant that Smith it was deemed Rakas, (citing Id. 439 U.S. circumstances.” agreement produce the rental was able at 406 99 S.Ct. at relevant provide the officer with other and to J., (Powell, cоncurring)). In lieu of sole ref- Also, regarding information the vehicle. the court erence to the rental given permission to drive Smith had been (1) factors, including: considered several he had an by someone with whom vehicle license; had a driver’s defendant wife, relationship, and who was intimate his (2) relatiоnship the unauthorized between authorized agreement as an listed on *4 (3) lessee; ability driver and the the driver’s driver, coming possession into opposed as (4) documents; present rental whether the by way party” an “unrelated third about of permission the driver had the lessee’s to use no provide thе driver could little or (5) ear; relationship and the with the driver’s Finally, significantly, information. and most company. rental a that Smith himself had the record showed increasingly utilization Given the common relationship compa- with the rental business myriad purposes of rental vehicles for a of ny. call and resеrve He had been the one to bright our a and view that line rule fails given company his credit the had the ensuing complexities, address the we are number, the provided card and was with totality convinced the Sixth Circuit Court’s of number his wife utilized when reservation approach the circumstances best аddresses Thus, up picked she the vehicle. the Court Smith, the issue.4 In the Court confronted a concluded, an this was not a case where pulled scenario where an officer had over a simply granted per- unauthorized driver was by only rental vehicle driven Smith. party mission a third renter since Smith agree- аuthorized driver listed on the rental himself was a de renter of the vehicle. facto ment, officer, provided which Smith to the relationship on with the au- Based Smith’s present. was Smith’s wife who was not After company, car thorized driver and the rental subsequent drugs, a search uncovered the personally paid for the vehi- and that he had government standing contested Smith’s cle, legitimate the held that he had a Court legitimacy given the of the search privacy in car. Id. at 586- expectation of an his status as unauthorized driver. The 87. began analysis by Sixth Circuit Court its rule,
acknowledging that general contrast, as a an presents In con- instant ease unauthorized driver of a rental vehicle does relationships siderably more attenuated legitimate expectation a not have of driver, Cutler, among the authorized and the in a vehicle. declined to company, that are insuffi- rental such there by an maxim be constrained absolute general presump- cient facts to overcome the proceeded totality a cir- instead with of the standing. that unauthorized drivers lack tion inquiry cumstances to determine whether the presented regarding evidence There was no occupa- surrounding cirсumstances Smith’s and Hernan- relationship between Cutler finding, in es- tion of the vehicle warranted dez, only including authorized driver — sence, exception. an Ac- they even knew each other. cordingly, there no evidence that Cutler was though Even Smith was not listed as permission only from the author- even had agreement, authorized driver on the rental And while operate driver to the vehicle. eventually the Court concluded that he did ized Smith, given permission to standing. at 587. Hernandez had Stewart Thus, ought reject argument ... control” the that and tort law ... not we must the state’s (cit agreement person expectation privacy) not listed on a lease auto- of an reasonableness Rakas, matically standing. States, See 439 U.S. at lacks ing U.S. Jones v. United (stating at 402 99 S.Ct. (1960)). S.Ct. L.Ed.2d developed property that "arcane distinctions car, regard- My impulse there no indication in the vehicle. initial use the im- ing scope permission adopt of that position this case was to taken —most which, not evidence portantly, there was as Eighth and Ninth Circuits as ex- permission whether Hernandez’s Stewart above, plained opinion in this Court’s hold encompassed consent for Stewart himself to permission entirely disposi- that the faсtor is having In lend the vehicle. addition to not Nevertheless, join tive. I in this Court’s relationship with the authorized renter of the opinion adopting totality of the circum- car, relationship Cutler also did not have approach excluding pos- stances to avoid Budget (quite with unlike the Smith’s de sible, legitimate rаre circumstance where a status). Furthermore, only renter not may privacy interest arise even the ab- facto was Cutler’s name absent from the rental direct from the sence of lessee agreement expired, but the had In other authorized driver. that circum- making possession Hernandez’s stance, however, heavy the driver will bear a It contravention of the contract.5 to demonstrate the existence of other burden totality preclude that us of these factors give factors that would him or her a reason- case, deviating, general in this from the privacy in able the vehicle. rule that unauthorized drivers of rental vehi- enjoy legitimate expectation
cles do not Thus, in such vehicles. *5 subsequent
not search of the
vehicle. holding
Given our that Cutler did not have privacy, it un-
a reasonable
Judge Concurring. join I foregoing opinion, I but write Review Denied June 2007. my separately express view that cases, majority question vast permis-
the driver of a rental car had direct
sion to use the car from the lessee or from
contractually authorized driver will be dis-
positive standing question. The exis- of the ordinarily
tence of such should be upon to confer a
sufficient if extent that the
the driver the same possesses such a interest.
lessee
Only extraordinary I circumstances would permis-
hold that a driver who did not obtain
sion from the lessee or other authorized driv- legitimate expectation of
er could have a flight having after locked regards factors considered Cutler's scene In to two other court, reaching precluded doors the officer from Smith whether the driver was able investigation. produce this area of a driver's license and rental documents.