On March 16, 2011, the Third Circuit Court of Appeals decided United States v. Kennedy [i], which addressed the issue of whether a person who is not listed on a car rental agreement, and is therefore an unauthorized driver, possesses a reasonable expectation of privacy in the car such that they can object to a search of the car. The facts of Kennedy, taken directly from the case are as follows:
Following the arrest of two minors in connection with stolen firearms, Detective Quinn of the Coatesville City Police Department received information indicating that some of those firearms had been sold for money and drugs at a home on First Avenue to a man known as “Tex” and later identified as defendant Kennedy. Police subsequently obtained a warrant and searched the home on First Avenue, where they found guns, drugs, and personal effects belonging to Kennedy. A federal warrant was issued for Kennedy’s arrest on January 18, 2006.
Six days earlier, on January 12, 2006, Kennedy’s girlfriend Courtney Fields had rented a silver Toyota Camry from Kulp Car Rental and given the key to Kennedy, who used the car until January 18, 2006. Kennedy’s name was not listed on the rental agreement.
On January 18, a police informant who knew Kennedy notified Detective Chris McEvoy that earlier in the day he had seen Kennedy driving a silver Toyota Camry, the car Fields had rented, on Chestnut Street between 7th and 8th Streets. McEvoy then passed this information on to the day and evening shifts of the Coatesville Police Department. Later that evening, at approximately 9:00 p.m., Officer John Regan, Corporal Sean Knapp, and Sergeant Martin Brice encountered Kennedy—wearing black gloves and carrying in his right hand a rental key inscribed with the Kulp Car Rental insignia and listing the car it belonged to as a silver Toyota Camry—walking diagonally across Chester Avenue and down the hill toward East Lincoln Highway. The officers placed Kennedy under arrest pursuant to the warrant. They then searched Kennedy and found on his person $2,692 in United States currency, a set of keys, and four cell phones. The District Court later determined that Kennedy was a validly licensed driver.
After Kennedy was taken to the police station, Officer Regan asked him where he lived. Kennedy said he lived at 714 East Lincoln Highway, a house less than a block from the location of the arrest. Officer Regan went to that location and soon found a silver Camry on Chester Street with a Kulp Car Rental bracket around its license plate. In the meantime, Sergeant Brice spoke with Kulp Car Rental’s owner, who requested that the police tow the car to the police station. While Officer Regan waited for a tow truck, three people approached the car from East Lincoln Highway, at which time Officer Regan instructed them to move away from the vehicle. The man and two women continued up the street to a house where they watched Officer Regan and the car from the front porch and window. One of the three was Courtney Fields, Kennedy’s girlfriend and the person who had rented the car and given Kennedy the key.
Following the car’s impoundment, Detective Martin Quinn directed Corporal Scott Neuhaus to conduct an inventory search of the car pursuant to Department policy so that the vehicle could then be picked up by someone from Kulp. Corporal Neuhaus began the inventory search with the trunk, where he found a partially opened duffle bag containing a disassembled rifle in three pieces. He immediately stopped the search and spoke with Detective Quinn, who then sought a search warrant for the entire vehicle. That same day, at her request, Fields’s attorney informed the police that there could be drugs in the car.
On January 20, 2006, Detective McEvoy and Detective Sean Murrin received a federal search warrant for the vehicle. Inside, the detectives found a cell phone charger plugged into the dashboard cigarette lighter, and a second cell phone charger in the passenger compartment, each of which fit one of the four phones found on Kennedy at the time of arrest. The detectives then opened the locked glove compartment and found a semi-automatic handgun, a magazine containing around 30 rounds of ammunition, and a plastic bag containing smaller bags with an off-white chunky substance later confirmed to be 202 grams of cocaine base. [ii]
Kennedy was subsequently indicted on federal drug and gun charges. He filed a motion to suppress the search of the rental car. The district court denied his motion and held that the search was initially conducted as part of a lawful impoundment and inventory of the vehicle under department policy. He was later convicted of the charges and he appealed the denial of his motion to suppress to the Third Circuit Court of Appeals.
Thus the issue before the court was whether a person who borrows a rental car but is not an authorized driver under the rental agreement has standing to challenge a search of the rental car (in other words, has a reasonable expectation of privacy in the car under the Fourth Amendment).
In support of his contention that he should have standing and a reasonable expectation of privacy, Kennedy points to the United States v. Baker[iii], in which the Third Circuit held:
[T]o determin[e] whether someone who borrowed a car had a reasonable expectation of privacy in it, a court must conduct a fact-bound inquiry assessing the strength of the driver’s interest in the car and the nature of his control over it. [iv] [internal quotations omitted]
In Baker, the defendant borrowed his friend’s car. Thus, the defendant in Baker was driving the car with the permission of the owner. As such, the court made a “fact bound inquiry” and determined that Baker did possess a reasonable expectation of privacy in the car he borrowed from his friend.
As to the applicability of Baker to the facts of Kennedy’s case, the court of appeals stated:
[Baker] does not speak to the distinct factual scenario presented here: whether someone who has been given permission to drive a vehicle by its renter, without the knowledge of its owner and in contravention of the rental agreement, nevertheless has standing to challenge a search of that vehicle. Accordingly, we disagree with Kennedy that Baker augurs in favor of any particular outcome here. [v]
As such, the court of appeals examined cases from other federal courts of appeal, noting that the Fourth, Fifth, Sixth, and Tenth Circuits have held that in a scenario such as Kennedy’s, the unauthorized driver did not possess a reasonable expectation of privacy in the rental car. The court of appeals stated:
[R]ecognizing that the inquiry must remain “fact-bound,” we concur with the majority of circuits that have considered this factual scenario and conclude that, as a general rule, the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary circumstances suggesting an expectation of privacy. See, e.g., United States v. Seeley, 331 F.3d 471, 472 n.1 (5th Cir. 2003) (per curiam) (finding that driver of rental car lacked standing where he was not the renter or authorized driver); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994) (holding that unauthorized driver of rental car who had been given permission to drive by co-defendant, an authorized driver, lacked standing); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990) (defendant lacked standing where car he was driving was rented by co-defendant’s common law wife and he was not listed as additional driver in rental contract); cf. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001)(noting that “as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle” but nevertheless finding that the defendant had standing in light of the “truly unique” facts of that case). [vi]
On the other hand, the Third Circuit, noted that the Eighth and Ninth Circuits have held that the unauthorized driver of a rental car has standing when the renter gives the driver permission to use the vehicle. [vii] The Third Circuit then examined the facts of the Ninth Circuit case, the United States v. Thomas. In Thomas, a known associate of Thomas rented a car, only listed himself as the driver, and then lent the car to Thomas. The Ninth Circuit, in holding that Thomas had standing to challenge the search, analogized his case with various cases that have held a person who rented a car or a motel room, who keeps possession of the car or motel room, after the lease or rental agreement expires, still retains a reasonable expectation of privacy and standing to challenge a search. [viii]
The Third Circuit, in examining the Ninth Circuits reasoning in Thomas, stated:
[The Ninth Circuit] concludes that the two types of breach should be treated the same for purposes of determining whether there is a reasonable expectation of privacy. The persuasiveness of the analogy breaks down, however, when one considers the different risks that each type of breach creates for the property owner, the different precautions that owners take to protect against each breach, and the corresponding differences with which society is likely to view those breaches. The risk of additional harm to or loss of leased property is likely to be small and easily quantifiable where the lessee merely maintains possession of the property past the expiration of the lease agreement. Indeed, because normally the expected loss will merely increase in proportion to the amount of time that the property is being used, the owner can easily seek compensation for this breach of the lease by charging an additional pro rata fee based on the amount of additional time that the property is used. [ix]
Further, the court noted that the United States Supreme Court has generally afforded a greater expectation of privacy in homes or living quarters than in automobiles. [x] The Third Circuit then stated that they believe society considers a person who validly rented a car but returned the car late is quite different from a person who is not authorized by the rental car company to possess or drive the car. The court then stated:
[W]e join the majority of circuits in concluding that the lack of a cognizable property interest in the rental vehicle and the accompanying right to exclude makes it generally unreasonable for an unauthorized driver to expect privacy in the vehicle. We therefore hold that society generally does not share or recognize an expectation of privacy for those who have gained possession and control over a rental vehicle they have borrowed without the permission of the rental company. [xi] [emphasis added]
As such, Kennedy lacked a reasonable expectation of privacy in the rental car and therefore did not have standing to challenge the search. Further, the court of appeals, like the district court, also held the search was lawful as a valid impound and inventory.
The court did find it important to note that there is a possible exception to the general ruled noted above. As an example of this exception, the court examined the United States v. Smith [xii] , from the Sixth Circuit. In Smith, the defendant reserved a rental car in his name and used his credit card to do so. The defendant’s wife then picked up the vehicle and was the only authorized driver listed on the rental agreement. The defendant then drove the vehicle which was searched and evidence was obtained. The Sixth Circuit upheld the suppression of the evidence finding that the defendant had a reasonable expectation of privacy in the vehicle; they reasoned that, although he was not listed on the rental agreement, the defendant had a sufficient business relationship with the rental company and an intimate relationship with the authorized driver (his wife). However, the court noted that Smith did not help Kennedy in the facts of his case.
As such, the decision of the district court was affirmed.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] 638 F.3d 159 (3rd Cir. 2011)
[ii] Id. at 161-162
[iii] 221 F.3d 438 (3rd Cir. 2000)
[iv] Id. at 162 (quoting Baker, 221 F.3d at 442)
[v] Id. at 164-165
[vi] Id. at 165
[vii] Id. at 166 (citing 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))
[viii] Id. (citing citing United States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2000), as amended Mar. 5, 2001 (lessee of rental car has reasonable expectation of privacy even after expiration of agreement, as long as he maintains possession and control of the car); United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001) (expiration of motel room rental period, in absence of affirmative acts by lessor to repossess, does not automatically terminate lessee’s expectation of privacy); United States v. Cooper, 133 F.3d 1394, 1398-1402 (11th Cir. 1998) (renter has reasonable expectation of privacy even after rental car lease has expired); United States v. Owens, 782 F.2d 146, 150 (10th Cir. 1986) (motel guest maintains a reasonable expectation of privacy in motel room even after check-out time)).
[ix] Id. at 166-167
[x] Id. at 167
[xi] Id. at 167-168
[xii] 263 F.3d 571 (6th Cir. 2001)