U.S. v. Kennedy

• Citation: 638 F.3d 159
• Decision Date: 16 March 2011
• Docket Number: No. 09–1980.,09–1980.
• Parties: UNITED STATES of Americav.Shamone KENNEDY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

638 F.3d 159

UNITED STATES of America

v.Shamone KENNEDY, Appellant.

No. 09–1980.

United States Court of Appeals, Third Circuit.

Argued Oct. 6, 2010.Opinion Filed: March 16, 2011.

Paul J. Hetznecker, Esq. [Argued], Philadelphia, PA, for Appellant.Kathy A. Stark, Esq. [Argued], Zane David Memenger, Robert A. Zauzmer, Office of United States Attorney, Philadelphia, PA, for Appellee.Before: FUENTES, JORDAN, ALDISERT, Circuit Judges.

OPINION OF THE COURT

FUENTES, Circuit Judge:

Acting on an arrest warrant, police arrested Shamone Kennedy and impounded a nearby rental car that Kennedy's girlfriend had lent him a few days earlier. Following an inventory search, police found two guns and 200 grams of cocaine inside the car. Kennedy moved to suppress the evidence found in the car, contending he had a legitimate expectation of privacy in its contents. The District Court denied the motion. Because we find that the driver of a rental car whose name is not listed on the rental agreement generally lacks a legitimate expectation of privacy in the car, we conclude that Kennedy's suppression motion was properly denied. Accordingly, we will affirm.

I.

A.

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.

B.

On August 30, 2006, a grand jury indicted Kennedy on two counts of possession of 50 grams or more of cocaine base (“crack”) with intent to distribute under 21 U.S.C. § 841(a)(1); two counts of possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c); and two counts of possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). One count of each crime related to the evidence obtained at the First Avenue address and one count of each crime to the evidence obtained from the silver Camry. Kennedy filed a motion to suppress both the evidence obtained from the home on First Avenue and the evidence obtained from the Camry. Following a hearing, the District Court issued a written opinion denying the motion. See United States v. Kennedy, No. 06–23, 2007 WL 1740747 (E.D.Pa. June 15, 2007).

As to the search of the home on First Avenue, the District Court held both that Kennedy lacked standing to contest the search because he had not shown any connection to the house, and that the search was proper because there was a substantial basis for the magistrate judge's determination that there was probable cause to support the issuance of a warrant. Id. at *2–3.

As to the searches of the silver Camry, the District Court acknowledged that the Third Circuit had not yet directly addressed the question of whether an individual 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. The District Court cited United States v. Baker, 221 F.3d 438 (3d Cir.2000), for the proposition that to “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’ ” Kennedy, 2007 WL 1740747 at *4 (quoting Baker, 221 F.3d at 442).

Relying on Baker, the District Court found that because Kennedy had Fields's permission to use the car, a driver's license, and was in fact driving the car on January 18, he had a reasonable expectation of privacy in the car. Id. Nevertheless, the District Court found that under the circumstances, including the absence of an authorized driver to remove the car from the street, it was reasonable for the police to honor the rental company's request and impound the car. Under settled law, the impoundment made it permissible to conduct an inventory search of the car's contents. Id. at *4–5. Accordingly, in light of what it found to be constitutionally valid procedures, the District Court denied Kennedy's Motion to Suppress in its entirety.

After three days of trial, the District Court declared a mistrial when the jury could not reach a verdict. Kennedy was retried on only one count each of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 924(c), and 18 U.S.C. § 922(g)(1), all relating to the evidence found in the car. After a two-day trial, the jury returned a verdict of guilty on those three remaining counts. The District Court then sentenced Kennedy to a term of imprisonment of 300 months followed by a 10 year period of supervised release. This timely appeal followed.

II.

A.

We “review the district court's denial of [a] motion to suppress for clear error as to the underlying facts, but exercise plenary review as to its legality in light of the court's properly found facts.” United States v. Silveus, 542 F.3d 993, 999 (3d Cir.2008) (quoting United States v. Riddick, 156 F.3d 505, 509 (3d Cir.1998)) (internal quotation marks omitted). “[T]he proponent of a motion to suppress bears the burden of proving not only that the search ... was illegal, but also that he had a legitimate expectation of privacy in [the place searched].” United States v. Stearn, 597 F.3d 540, 551 (3d Cir.2010) (internal quotations omitted) (second set of brackets in original).¹

B.

As previously stated, the District Court found that because Kennedy had Fields's permission to use the car she rented, Kennedy had a reasonable expectation of privacy in its contents. The Government argues that we should reverse the District Court's holding that Kennedy had standing to challenge the search of his car in the first instance. Although the right to challenge a search on Fourth Amendment grounds is generally referred to as “standing,” the Supreme Court has clarified that the definition of that right “is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Accordingly, standing to challenge a search is not a threshold issue that must be decided before reaching the question of whether a search was or was not constitutional. See, e.g., United States v. Varlack Ventures, Inc., 149 F.3d 212, 215–16 (3d Cir.1998) (assuming, without deciding,...