U.S. v. Thomas

• Decision Date: 18 May 2006
• Docket Number: No. 04-30541.,04-30541.
• Citation: 447 F.3d 1191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roshon E. THOMAS, aka Rollin Roy Phillips, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

447 F.3d 1191

UNITED STATES of America, Plaintiff-Appellee, v. Roshon E. THOMAS, aka Rollin Roy Phillips, Defendant-Appellant.

No. 04-30541.

United States Court of Appeals, Ninth Circuit.

Submitted March 9, 2006.^*

Filed May 18, 2006.

COPYRIGHT MATERIAL OMITTED

Richard D. Wall, Spokane, WA, was on the briefs for the appellant.

James A. McDevitt, United States Attorney, and Joseph A. Harrington, Assistant United States Attorney, were on the brief for the appellee.

Appeal from the United States District Court for the Eastern District of Washington; Fred L. Van Sickle, Chief Judge, Presiding. D.C. No. CR-03-00129-FVS.

Before O'SCANNLAIN, SILVERMAN, and GOULD, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

This case requires us to consider whether a driver of a rental car who is not listed on the rental agreement has standing to challenge a police search of the vehicle.

I

Michael Bahr, a Spokane City, Washington, police officer and Drug Enforcement Agency ("DEA") task force officer, received a tip regarding the defendant-appellant, Roshon Thomas, in November 2002. Officer Bahr never met with the undisclosed source of the tips ("the Source"), whose identity has remained confidential out of concern for the individual's safety.¹ Officer Bahr spoke with the Source over the phone, determined its identity, and learned that the Source had never been arrested or convicted of a criminal offense. The Source received no compensation for the information provided to Officer Bahr.

The Source told Officer Bahr that Thomas had been renting cars—or instructing others to rent them for him — which he would use to transport crack cocaine from Long Beach, California, to Spokane, Washington. Approximately 1-2 years earlier, the Source rented a vehicle at Thomas's direction. Thomas and the Source drove the vehicle to Long Beach, where the Source was present when Thomas purchased crack cocaine, which they then transported back up to Spokane in the rental vehicle. The Source reported that Thomas made similar trips with other individuals every six to eight weeks.

A

In November 2002, according to the Source, Thomas obtained and transported crack cocaine from Long Beach for an individual named Antonio Crawford, who had recently been arrested for the distribution of crack cocaine. The Source explained that Jamie McGuffey rented the vehicle Thomas used to transport the drugs from Long Beach. The Source stated that McGuffey usually rented cars from Dollar Rental Company or Budget Rental Company at the Spokane Airport.

The police then corroborated the Source's information, to the extent possible. Officer Bahr was aware that during that month, Crawford had been arrested for the distribution of crack cocaine. The Spokane County Gang Unit advised Officer Bahr that McGuffey was one of Thomas's known associates. Officers also spoke with a manager at the Spokane Airport location of the Budget Rental Car Company ("Budget"), who confirmed that McGuffey had rented a car in November 2002, and returned it with 2,889 additional miles on the odometer. Based on his training and experience, Officer Bahr concluded that this mileage was consistent with a round trip from Spokane to Long Beach. The Budget manager later informed Officer Bahr that Thomas had rented cars from Budget on three prior occasions, though milage information had been expunged from company computers.

B

In December 2002, the Source again provided Officer Bahr with information that Thomas would be traveling to Long Beach with his family over the Christmas holiday. Again the Source asserted that the purpose of the trip was to transport crack cocaine. The Spokane County prosecutor's office informed Officer Bahr that an arrest warrant had been issued for Thomas, but Officer Bahr was further advised that the warrant had been recalled due to a miscommunication between Thomas and the prosecutor's office.

C

On February 27, 2003, the Budget manager at the Spokane Airport contacted Officer Bahr to inform him that Thomas and McGuffey had attempted to rent a car that day. Budget refused to rent Thomas and McGuffey a car because both had outstanding unpaid late fees. The Budget manager told Officer Bahr that he intended to warn the other rental car services at the Spokane Airport about Thomas and McGuffey.

On March 4, 2003, a representative from National Car Rental ("National") at the Spokane Airport called Officer Bahr and reported that McGuffey had just made a four-day rental reservation. McGuffey was scheduled to pick up the car — a white 2003 Dodge Intrepid — at noon the following day. National's manager agreed to allow the police to install a tracking device in the car while the car was in National's garage facility before rental to McGuffey.²

On March 5, McGuffey entered into a rental contract with National. McGuffey signed the rental agreement below the following text: "Only I and authorised driver(s) may drive the vehicle." The contract did not list Thomas as an authorized driver.

D

On March 8, 2003, the tracking device alerted police that McGuffey's rental car returned to Washington State. Because Officer Bahr was unavailable at the time, he contacted another DEA officer who, accompanied by Washington State Patrol troopers, monitored the freeways until a car matching the description of the rental car—including a matching license plate number—appeared at approximately 1:30 a.m.

After stopping the car, the DEA agent approached the car and recognized Thomas from a booking photograph that he had been given by Officer Bahr. There were no other individuals in the vehicle. Thomas presented officers with a driver's license bearing the name "Roland Phillips." After further confirming Thomas's true identity by checking his tattoos, officers arrested Thomas based on an outstanding warrant. The police then searched the rental vehicle and found, among other items, nearly 600 grams of cocaine in what police described as "a Sprint bag, a small . . . telephone bag," located next to the spare tire in the vehicle's trunk.³ They also found $1200 and 25.1 grams of heroin.

E

Thomas's counsel moved to suppress the evidence seized from the rental car. During the suppression hearing, Thomas asserted that the use of the tracking device violated his right to privacy under Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), but did not contend that McGuffey gave him permission to use or to drive the rental car.⁴ The district court concluded that Thomas "failed" to show that McGuffey gave permission to use the car because "nothing was presented in [Thomas's] favor at the suppression hearing."⁵ The district court denied Thomas's motion to suppress on several grounds: an unauthorized driver of a rental car has no expectation of privacy, so Thomas lacked standing to challenge the search; there was probable cause to issue a search warrant; monitoring public movements was not a search in the first place; a Terry stop was proper under the circumstances; the automobile exception applied and supported the search; and discovery was inevitable in any event.

After the district court denied Thomas's motion to suppress, Thomas entered a conditional guilty plea to one count of Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. § 841(a)(1).⁶ The district court sentenced Thomas to 188 months pursuant to U.S.S.G. § 4B1.1.

Thomas remains in custody and timely appeals.

II

Thomas contends that he has standing to challenge an allegedly unconstitutional search of the rental car even though he was not formally authorized to drive the car.⁷

A

To evaluate whether an unauthorized driver has a privacy interest in a rental car, we consider whether "the person who claims the protection of the [Fourth] Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). An expectation of privacy is legitimate if it is one which society accepts as objectively reasonable. See Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Courts have developed at least three approaches to determining when an unauthorized driver of a rental vehicle has standing to challenge a search.

The first approach is seen in the Fourth, Fifth, and Tenth Circuits.⁸ See 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. Roper, 918 F.2d 885, 887-88 (10th Cir. 1990). These courts have all adopted a bright-line test: An individual not listed on the rental agreement lacks standing to object to a search. Their cases reason that because an unauthorized driver lacks a property or possessory interest in the car, the driver does not have an expectation of privacy in it. See also United States v. Haywood, 324 F.3d 514, 516 (7th Cir.2003) (concluding that where the driver lacks a valid license, the rental company would not have granted permission to use the vehicle, and there is no expectation of privacy).

The second approach, seen in the Eighth Circuit, is a modification of the majority bright-line approach, and generally disallows standing unless the unauthorized driver can show he or she had the permission of the authorized driver. United States v. Best, 135 F.3d 1223, 1225 (8th Cir.1998); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir.1995) (per curiam). The Eighth Circuit reasoned that an unauthorized driver would have standing after a showing of "consensual possession" of the rental car. Muhammad, 58 F.3d at 355 (citing United States v. Sanchez, 943 F.2d 110, 114 (1st Cir.1991), which held, for a privately owned car, that a defendant would have standing on a showing of "a more intimate relationship with the car's owner or a history of regular use of the [car]"). In effect, this approach equates an unauthorized driver of a rental...