U.S. v. Wellons

• Decision Date: 12 August 1994
• Docket Number: No. 92-5528,92-5528
• Citation: 32 F.3d 117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherman L. WELLONS, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 117

32 F.3d 117

UNITED STATES of America, Plaintiff-Appellee, v. Sherman L. WELLONS, Jr., Defendant-Appellant.

No. 92-5528.

United States Court of Appeals Fourth Circuit.

Argued July 15, 1994.

Decided Aug. 12, 1994.

ARGUED: Matthew Anthony Victor, Charleston, WV, for appellant. R. Brandon Johnson, Asst. U.S. Atty., Charleston, WV, for appellee. ON BRIEF: Rebecca A. Betts, U.S. Atty., Charleston, WV, for appellee.

Before RUSSELL, WIDENER and HALL, Circuit Judges.

Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge WIDENER and Judge HALL joined.

OPINION

RUSSELL, Circuit Judge:

Appellant Sherman L. Wellons, Jr., was arrested following the discovery of drugs in a rental car which he was driving but for which he was not listed as an authorized driver. He was subsequently tried and convicted of conspiracy to distribute cocaine and heroin, possession with intent to distribute cocaine, and possession with intent to distribute heroin. Raising a Fourth Amendment challenge and an evidentiary challenge, he appeals.

On the morning of July 23, 1991, appellant, Lawrence Dixon and Antonio Johnson left Pittsburgh, Pennsylvania, in a Hertz rental car. Dixon had rented the car from Hertz Corporation and was the only authorized driver listed on the rental agreement.

The three individuals drove to Atlanta, Georgia, that day. The next morning, they began the return trip to Pittsburgh. Dixon and Johnson took an air flight which departed Atlanta at 6:30 a.m. Appellant departed in the rental car at approximately 6:00 a.m. with plans to drive straight to Pittsburgh.

At approximately 2:40 that afternoon, West Virginia State Trooper Donald Sizemore stopped appellant for exceeding the speed limit by travelling at 78 miles per hour on the West Virginia Turnpike near Ghent, West Virginia. The trooper asked appellant for his driver's license and the vehicle registration. Appellant produced his Pennsylvania driver's license and informed the trooper that the vehicle had been rented by Lawrence Dixon from Hertz Corporation. Appellant, however, could not locate the rental agreement. Instructing appellant to remain in the automobile, Trooper Sizemore filled out a speeding ticket and radioed his base. The trooper, by radio, asked that Hertz Corporation be contacted to verify appellant's claim. He also asked that another trooper with a drug-sniffing dog be sent to the scene. ¹ Both these requests were complied with. The trooper soon learned that Hertz Corporation had confirmed that appellant was not listed as an authorized driver and had requested that the trooper, therefore, impound the car.

When he had finished writing the speeding ticket, Trooper Sizemore returned to appellant and asked who had rented the car; appellant responded that Dixon had. The trooper then asked appellant for permission to search the vehicle. Appellant declined, stating as his reason that his father had been hospitalized the night before and that, as a consequence, he was pressed for time. At that juncture, Trooper Sizemore informed appellant that he would have to wait a few more minutes for the drug-sniffing dog to examine the automobile and its contents. The dog indicated the presence of narcotics and a subsequent warrantless search of the automobile and the luggage contained therein revealed that two bags of luggage contained some cocaine; another was found to contain some heroin.

Appellant raises a Fourth Amendment challenge to the search of the automobile, seeking to exclude the narcotics obtained therefrom. However, "the exclusionary rule's benefits run only to those whose Fourth Amendment rights have been violated." United States v. Givens, 733 F.2d 339, 341 (4th Cir.1984). Only where a search intrudes upon a space as to which an individual has "a legitimate expectation of privacy" will the search violate that individual's Fourth Amendment rights. Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Here, as the district court found, appellant, as an unauthorized driver of the rented car, had no legitimate privacy interest in the car and, therefore, the search of which he complains cannot have violated his Fourth Amendment rights. See United States v. Boruff, 909 F.2d 111, 117 (5th Cir.1990) (driver of rental car had no legitimate expectation of privacy in rental car where driver was not listed as valid driver on rental agreement, even though he had permission of actual renter to drive the car, as agreement expressly forbade use of rental car for illegal purposes and use of car by an unauthorized driver, and driver was aware of both of these restrictions), cert. denied, 499 U.S. 975, 111 S.Ct. 1620, 113 L.Ed.2d 718 (1991); United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir.1984) (upholding lower court's determination that person not listed as valid driver on rental car agreement had no legitimate privacy interest in the car even though the person had renter's permission to drive car); cf. United States v. Sanchez, 943 F.2d 110, 112-14 (1st Cir.1991) (driver had no reasonable expectation of privacy in car borrowed with permission from boyfriend of car owner absent evidence that driver normally used car or had strong relationship with car owner); United States v. Hargrove, 647 F.2d 411, 413 (4th Cir.1981) (defendant had no reasonable expectation of privacy in stolen car; defendant failed to show, as was required where car had previously been reported stolen, "that he acquired the car innocently"). ²

Appellant further argues that, even if he had no reasonable expectation of privacy in the rental car, he retained a reasonable expectation of privacy in his luggage which he placed in the car. However, as we have previously held,

[o]ne who can assert no legitimate claim to the car he was driving cannot reasonably assert an expectation of privacy in a bag found in that automobile.... A person who cannot assert a legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private repository for his...