On November 6, 2020, the Eleventh Circuit Court of Appeals decided the United States v. Lancon[i], in which the court examined whether a passenger in a vehicle had a reasonable expectation of privacy such that she had standing to contest a warrantless search of the vehicle. The facts of Lancon are as follows:
On or about January 15, 2019, Saraland Police Officer Austin Sullivan (“Officer Sullivan”) saw a tractor with no trailer travelling northbound on Interstate 65. The exterior of the truck was very clean and freshly painted; however, there was “ghosting” on the side of the tractor where two letters appeared to have been removed from the name of the trucking company. Additionally, other portions of the tractor were rusty from lack of use which contrasted with the clean and newly painted tractor. As Officer Sullivan passed the tractor, he observed that there was no tag displayed on the front of the tractor as required by Alabama law. Therefore he conducted a traffic stop for the tag violation. The tractor did not immediately stop, so Officer Sullivan followed it with his blue lights on until it finally pulled over.
Officer Sullivan approached the vehicle on the passenger side, but Defendant Victor Estrada Rodriguez (“Co-Defendant” or “Estrada”) jumped out from the driver’s side of the truck to the ground to meet him. Officer Sullivan requested Estrada’s license, registration, and insurance. Estrada had trouble locating the relevant documents so Officer Sullivan continued to question him about those documents and explained that he stopped the vehicle for the tag violation. Ultimately, Estrada produced paperwork which showed several companies associated with the vehicle, including one which appeared on the side of the truck “Silient Trucking” and “Resilent Trucking.” Further, Estrada produced a document taped to the windshield of the truck that showed the vehicle registered “Lucky 5 Trucking.” Additionally, Officer Sullivan noticed a number of personal items in the truck including a houseplant and a DVD player.
Officer Sullivan and Estrada went to the patrol car where Officer Sullivan also began checking law enforcement databases on the vehicle, the companies, and Estrada. Eventually Officer Sullivan asked Estrada if he could search the truck to which Estrada agreed. Officer Sullivan also heard back on his inquiry that a person with the same name was wanted on criminal charges from another state with full extradition. Officer Sullivan asked for additional information to see if Defendant Estrada had the same physical characteristics as the wanted subject. Though Estrada had denied prior arrests in their earlier conversion, Officer Sullivan eventually determined from Estrada that he had been previously arrested. Officer Sullivan then requested, but never received, a portable fingerprint device to confirm whether Estrada was the wanted person.
Around this time, Lt Culley responded as a back-up officer and arrived on the scene with his drug detecting dog. Lt Culley walked his dog around the outside of the truck and the dog gave a positive indication for the odor of narcotics on both sides of the truck near the doors. Officer Sullivan confronted Estrada with the drug dog’s positive alert and Estrada admitted everything in the truck belonged to him. At this time, Lt Culley and Officer Sullivan conducted a full search of the truck and found cocaine bundles in a large box behind the passenger’s seat. They advised Estrada of his Miranda rights and he admitted to his involvement in smuggling activity.
In sum, the traffic stop lasted a little over one hour. Midway through the traffic stop, Officer Sullivan asked Lancon to get out of the truck to sit in a different police vehicle. She remained there for the rest of the stop.[ii]
Lancon was subsequently charged under federal law for drug violations. She filed a motion to suppress the evidence and argued that the traffic stop was unreasonably prolonged and violated her rights under the Fourth Amendment. The district court held that, as a passenger, Lancon lacked standing to contest the search noting that she never claimed ownership of the vehicle or objected to the driver’s consent to search the vehicle. Lancon subsequently appealed the denial of the motion to suppress to the Eleventh Circuit Court of Appeals.
The issue on appeal was whether the passenger of a vehicle, who is not the owner or renter of the vehicle and who does not object to the search, has standing to contest a consent search of the interior of the vehicle.
The court of appeals first noted that a defendant, here Lancon, has the burden in court to establish that she has a reasonable expectation of privacy in the area that was searched. The court stated
To establish a reasonable expectation of privacy, a person must have: (1) “a subjective expectation of privacy; and (2) society is prepared to recognize that expectation as objectively reasonable.” United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008). The defendant has the burden to establish “a legitimate expectation of privacy in the area searched.” Id.[iii]
The court then discussed the legal principles related to passengers in vehicles. While passengers can typically contest the legality of stop, meaning whether the officer had sufficient reasonable suspicion or probable cause to stop the car since they are also being stopped, the court stated passengers typically lack a privacy interest to contest a search of the vehicle. Specifically, the court stated
In the vehicle context, we have recognized that “[a] passenger usually lacks a privacy interest in a vehicle that the passenger neither owns nor rents, regardless of whether the driver owns or rents the vehicle.” United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998).[iv]
The court of appeals then explained the rationale of the above principle and stated
A passenger “does not have the right to exclude others from the car.” United States v. Lee, 586 F.3d 859, 864 (11th Cir. 2009). Third parties may consent to searches when they possess “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). If law enforcement reasonably believed that the co-occupant “possessed authority over the premises” at the time of entry, then the co-occupant’s consent to search is valid. United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir. 2008) (per curiam). If the person who would refuse consent is not present or does not object, then the consent of the present co-occupant is good against the absent or silent co-occupant. Matlock, 415 U.S. at 170-71. Moreover, where one co-occupant consents to a search, officers are not required to ask physically present co-occupants for consent. United States v. Morales, 893 F.3d 1360, 1369-70 (11th Cir. 2018)[v]
Lancon argued that her standing was derived from the officer’s assumption that she and the driver were married. However, as the court noted above, even if they were married, the driver would still have “common authority” to consent to the search. Additionally, Lancon did not object to the search and the officers were not required to specifically ask her for consent just because she was present. Further, the driver presented the officer with ownership paperwork, thus it was reasonable to request consent from the driver. The court appeals then held
Because Lancon was only a passenger in the truck, she did not have a privacy interest in it, and she failed to present any evidence to carry her burden to show she had an interest.[vi]
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 20-10423 (11th Cir. Decided November 6, 2020 Non-Argument Calendar)
[iii] Lancon, No. 20-10423 at 2
[iv] Id. (emphasis added)
[v] Id. at 2-3 (emphasis added)
[vi] Id. at 3