SUSAN ILLSTON, United States District Judge.
On January 14, 2020, the Court held a hearing on defendants' motions to suppress. At the hearing, the government requested leave to file supplemental briefing regarding whether defendant Darryl Jones had a reasonable expectation of privacy in the rental car. The government filed a supplemental brief on January 19, and defendant Jones filed a response on January 28, 2019. After careful consideration of the parties' arguments and the record before the Court, the Court GRANTS defendants' motions to suppress.
On Tuesday, January 9, 2018, at approximately 12:40 a.m., defendants Darryl Jones and Gregory Walker were driving a white Ford Fusion in the Marina District of San Francisco.
Jones states in his declaration,
Jones Decl. ¶¶ 2-4 (Dkt. No. 54-2).
San Francisco Police Department Officers Robert Glenn and Trevor Roberts were on uniformed patrol, and they were in the patrol car that pulled up next to defendants' vehicle. Officer Glenn, who was driving, wrote in his Incident Report that when their patrol car was parallel to the Ford Fusion, "I looked over and made eye contact with the occupants ... driver Darryl Jones and ... passenger Gregory Walker whom immediately looked away from me." Incident Report at USA-000029 (Dkt. No. 63-1).
The intersection of Franklin Street and Lombard Street has two left-turn lanes; defendants' vehicle was in the inner left-turn lane, and the officers' car was in the outer left-turn lane. Both vehicles turned left onto Lombard Street. After turning left onto Lombard, Jones braked to allow the SFPD patrol car to pass him on the right, and then he merged three lanes over and pulled into the parking lot of the Redwood Inn at 1530 Lombard Street. Jones describes what happened as follows:
Jones Decl. ¶¶ 6-9.
Officer Glenn's Incident Report states:
Incident Report at USA-000029.
While Officer Glenn was talking to the hotel employee Victor, Walker exited the vehicle.
Officer Glenn then contacted dispatch and provided the address of the hotel, the license plate number of the Ford Fusion, and Walker's information for a records check. Id. at 01:28-02:27.
Approximately four minutes into Officer Glenn's body cam footage, Officer Glenn asked Walker, "How much weed do you guys have in the car?" Id. 04:06. At the time Officer Glenn asked this question, he was standing close to Walker, who was still sitting on the steps.
Approximately four minutes into Officer Glenn's body cam footage, Officer Glenn said, "If there ain't nothing in the car to worry about, there ain't nothing in the car to worry about, right? So if you guys are being on the up and up with us, it's gonna be all good. But if you're not, it's better to tell me now than later. You know what I mean?" Id. at 06:00-06:12. Walker responded with, "Yeah." Id.
While Officer Glenn was questioning Walker, Officer Roberts exited the patrol car to question Jones, who was sitting in the driver's seat of the Ford Fusion. Mitchell Decl. Ex. C (Officer Robert's body cam footage).
Jones continued to sit in the car while Officer Roberts stood next to the car, and
Officer Roberts then asked Jones why he was on probation, and Jones denied being on probation.
After Jones joined Walker on the steps, Officer Glenn questioned Jones about whether he was on probation, while Officer Roberts stood nearby. Mitchell Decl., Ex. B at 06:38. Jones stated that he had already completed his probation, and Officer Glenn said that he would double check. Glenn then said that Jones had a suspended driver's license "that he needs to take care of," that Walker had a valid driver's license, and asked "is there anything in the car we need to know about before we go — nothing in the car?" Walker said "no." Id. at 06:40-06:51. Officers Glenn and Roberts do not have any discussion about either of them smelling marijuana emanating from the vehicle. The officers did not request defendants' consent to search the vehicle.
Officer Glenn then walked to the car, while Officer Roberts stayed with Walker and Jones. Officer Glenn proceeded to search the car. Id. at 07:01. Officer Glenn shined his flashlight throughout the interior of the car, looked on the sides of the seats, rifled through papers and other items inside the car (including Jones' backpack), and opened up and looked through compartments, including the glove compartment and center console. Id.
After additional officers showed up,
Officer Glenn then walked over to where Jones and Walker were being detained and said, "You know what happened, bro. Same thing I just asked you about, come on." Mitchell Decl. Ex. B at 11:44-11:46. Jones asked, "What happened?", and then Officer Glenn arrested him. Id. at 11:47-11:53. Jones continued to ask why he was being arrested and "what happened?" and Glenn told him that they would discuss it at the police station. Id. at 12:34-12:43.
Several minutes after the arrest, Officer Glenn called his sergeant. Id. at 19:07. Officer Glenn reported that they had arrested two individuals and that the car was parked on private property and would need to be towed. Glenn also told the sergeant, "So, they pulled into this parking lot for this hotel, and as we were driving by, the manager like, they were about to pull out, then they saw us, that we had made the block around, and so they were back-backing into the spot, so we kinda pulled in because the manager was looking at us, and he's like `what's going on, why is this car here?' and we asked the manager if they were guests, and he said `I don't think so,' so then we stared, the guy jumps out of the car, so we start talking to him, and then we run the other guy, and he's fourteen six with a suspended driver's license, so all in all, a bunch of suspicious behavior was afoot, and they parked in a handicapped spot." Id. at 19:10-20:31.
Officers Glenn and Roberts transported Jones and Walker to San Francisco Police Department, Central Station. At the station, Jones was questioned and he told Sergeants Manning and DeJesus that he found the gun in a brown paper bag in the Tenderloin neighborhood when he was on his way to work. Krishnamurthy Decl. Ex. 3. Walker denied that the gun was his and denied knowing that the gun was in the vehicle. Id.
Sergeant Manning prepared a "Chronological of Investigation." Mitchell Decl. Ex. D (Dkt. No. 54-1). That report states, inter alia, that at 5:45 a.m. on January 9, 2018, he arrived at the station and that he and Sergeant DeJesus were briefed by Officers Glenn and Roberts. The Chronological states,
Id. at USA-000015.
On January 10, 2019, the grand jury returned an indictment with forfeiture allegations charging defendants with a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
At the time of the stop and search, Walker was still serving the custodial portion of the sentence imposed in United States v. Walker, CR 10-772-SI.
Krishnamurthy Decl., Ex. 7.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. When a search is conducted without a warrant, the analysis begins "with the basic rule that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). For example, because there is a lesser expectation in the privacy of one's vehicle than of one's person, a warrantless search of a vehicle may be conducted if there is probable cause to believe the vehicle contains contraband. United States v. Ross, 456 U.S. 798, 799, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The government bears the burden of establishing that a warrantless search was reasonable and did not violate the Fourth Amendment. United States v. Carbajal, 956 F.2d 924, 930 (9th Cir. 1992), cert. denied, 510 U.S. 900, 114 S.Ct. 272, 126 L.Ed.2d 223 (1993) (citations omitted).
Defendant Jones moves to suppress all fruits of the warrantless seizure of his person and the search of the Ford Fusion,
Defendants contend, and the government does not dispute, that defendants were seized within the meaning of the Fourth Amendment at the time that the officers blocked the exit to the parking lot of the Redwood Inn and approached defendants. See Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ("A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, "`by means of physical force or show of authority,'" terminates or restrains his freedom of movement, "through means intentionally applied.") (internal citations omitted).
The government defends the seizure as a valid traffic stop. Police officers may conduct a traffic stop when they have reasonable suspicion to believe that a motorist has committed a traffic violation. See United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000); see also United States v. Willis, 431 F.3d 709, 717 (9th Cir. 2005) ("Whren and Lopez-Soto require that the officers have reasonable suspicion to stop a driver for traffic infractions, not that the officers issue citations.").
The government contends that the officers had reasonable suspicion to believe that Jones had committed a violation of California Vehicle Code § 22107 for making an unsafe lane change. The government asserts that when Jones merged over three lanes to pull into the Redwood Inn parking lot, the Ford Fusion narrowly missed hitting the patrol car and that a
The Court is not persuaded that there is a factual dispute requiring an evidentiary hearing. Officer Glenn stated in both his Incident Report and the declaration submitted to this Court that when the Ford Fusion merged three lanes, the vehicle narrowly missed the patrol car and caused the vehicle behind the patrol car to slam on its brakes and honk its horn. See Mitchell Decl. Ex. A at USA-000029 (Incident Report); Glenn Decl. ¶¶ 5-6 (Dkt. No. 63). Although Jones states in his declaration that "I braked to allow the SFPD car to pass me on the right side, and then I turned on my blinker, merged three lanes over, and pulled into the Redwood Inn parking lot," Jones does not state that the Ford Fusion did not narrowly miss the patrol car when merging. In addition, although Jones states that there were no cars "behind me," he does not state that there were no cars behind the patrol car.
The Court concludes that the government has met its burden to show that the initial seizure of defendants was permissible insofar as the officers had reasonable suspicion to believe that Jones had committed a traffic violation. Defendants do not dispute that Jones crossed over three lanes to pull into the parking lot, and Officer Glenn's Incident Report and declaration state that defendants' car narrowly missed hitting the patrol car and that another vehicle was forced to slam on its brakes and honk as a result of the Ford Fusion's movements.
"Traffic stops are `presumptively temporary and brief.'" United States v. Gorman, 859 F.3d 706, 714 (9th Cir. 2017) (quoting Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). "The vast majority of roadside detentions last only a few minutes." Berkemer, 468 U.S. at 437, 104 S.Ct. 3138. The Supreme Court held that a traffic stop "seizure remains lawful only `so long as [unrelated] inquiries do not measurably extend the duration of the stop.'" Rodriguez v. United States, 575 U.S. 348, 135 S.Ct. 1609, 1615, 191 L.Ed.2d 492 (2015). "An officer ... may conduct certain unrelated checks during an otherwise lawful traffic stop. But ... he may not do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual." Id. The Court held that "[b]eyond determining whether to issue a traffic ticket, an officer's mission includes `ordinary inquiries incident to [the traffic] stop[,]'" such as "checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance." Id. To conduct tasks connected to an unrelated criminal investigation, an officer must have independent individualized reasonable suspicion to support the unrelated criminal investigation activities. Id. at 1615-16; Gorman, 859 F.3d at 715 ("Police simply may not perform unrelated investigations that prolong a stop unless they have `independent reasonable suspicion justifying [the] prolongation.'"). The government has the burden of production of coming forward with "specific and articulable facts" to support reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Willis, 431 F.3d at 715 n.5 (on motion to suppress evidence based on traffic stop, stating that the government has
Defendants contend that even if the officers had reasonable suspicion for the traffic stop, the officers impermissibly prolonged the traffic stop by calling and waiting for backup, asking for Walker's identification, running ex-felon records checks on Jones and Walker,
The Court concludes that although the officers may have had reasonable suspicion to justify the traffic stop, once the officers detained defendants in the parking lot, they conducted numerous tasks unrelated to the traffic stop that prolonged the traffic stop, such as calling for backup, questioning Walker and Jones about why they were in the Redwood Inn parking lot and whether there was any contraband in the vehicle. The Court finds it significant that although the record supports a finding of reasonable suspicion to justify the traffic stop, the officers never mentioned the alleged traffic violation to defendants (even when the defendants asked what they had done wrong), and instead the officers immediately began to question Walker and Jones about matters unrelated to the alleged traffic violation. These activities, as well as calling for backup and directing Jones to get out of the car and sit next to Walker, significantly prolonged the "traffic stop," and they were unrelated to the mission of the traffic stop. See Gorman, 859 F.3d at 715 (questioning motorist about matters unrelated to traffic infraction was beyond the scope of stop's mission and instead was "impermissibly aimed at detecting evidence of ordinary criminal wrongdoing") (internal quotation marks and citation omitted); Evans, 786 F.3d at 786 (law enforcement impermissibly extended a traffic stop by asking questions unrelated to traffic safety and unsupported by separate reasonable suspicion).
Indeed, at the hearing the government conceded that the officers conducted some tasks — such as questioning defendants about why they were at the hotel and Officer Glenn asking Walker about whether there was contraband in the car — that were unrelated to the mission of the traffic stop, and that those tasks prolonged the traffic stop. However, the government asserts that there was independent reasonable suspicion to justify those activities, namely the "the smell of marijuana emanating from the car and the Ford's evasive movements." Opp'n at 8 (Dkt. No. 62). Thus, unless the officers had reasonable independent suspicion to justify the unrelated
The government contends that the same facts support reasonable suspicion to conduct investigative activities unrelated to the mission of the traffic stop and probable cause to search the vehicle. Specifically, the government argues that the Ford's "evasive movements" and the smell of unburned marijuana emanating from the car provided reasonable suspicion for the officers to question Walker and Jones and prolong the traffic stop, and that the Ford's evasive movements and the smell of unburned marijuana provided probable cause to believe that the Ford contained contraband, thus justifying the search of the vehicle pursuant to the automobile exception.
"[A]n officer may prolong a traffic stop if the prolongation itself is supported by independent reasonable suspicion," which "exists when an officer is aware of specific, articulable facts which, when considered with objective and reasonable inferences, form a basis for particularized suspicion." Evans, 786 F.3d at 788 (emphasis in original). The reasonable suspicion analysis looks "at whether the detaining officer ha[d] a `particularized and objective basis' for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). "Reasonable suspicion must be based on more than an officer's `inchoate and unparticularized suspicion or hunch.'" United States v. Thomas, 211 F.3d 1186, 1192 (9th Cir. 2000) (quoting Terry, 392 U.S. at 27, 88 S.Ct. 1868).
The Supreme Court has held that police may conduct a warrantless search of a vehicle if they have probable cause to believe that the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 S.Ct. 543 (1925); see also United States v. Brooks, 610 F.3d 1186, 1193 (9th Cir. 2010) ("[Police may conduct a warrantless search of a vehicle if there is probable cause to believe that the vehicle contains evidence of a crime].... `Probable cause to search is evaluated in light of the totality of the circumstances.'") (citations omitted).
The government argues that the officers had reasonable suspicion to prolong the traffic stop and probable cause to search the vehicle because the officers could smell the odor of unburned marijuana emanating from the car. The government contends that although California has decriminalized the possession of small amounts of marijuana, possession of marijuana is still illegal under federal law, and thus the officers could rely on the smell of marijuana to believe that the vehicle contained contraband.
Defendants dispute as a factual matter whether either officer smelled marijuana emanating from the car prior to the search, and they argue that the body cam footage and other evidence is inconsistent with two officers who smelled marijuana during a traffic search. See generally Jones' Reply at 8-10. Defendants also contend that even if the officers did smell unburned marijuana from the car, that fact does not provide reasonable suspicion or probable cause to believe that the car contained contraband after the passage of Proposition 64.
Proposition 64, passed in November 2016, decriminalized the possession of less than 28.5 grams of marijuana by persons 21 years or older. See Cal. Health & Safety Code § 11357(b)(2). Proposition 64 changed
District courts in this District have split on the question of whether, after the enactment of Proposition 64, the odor of marijuana alone supports probable cause to search a vehicle. Compare United States v. Martinez, Case No. 17-CR-00257-LHK, 2018 WL 3861831, at *5 (N.D. Cal. Aug. 14, 2018) (marijuana odor alone provides probable cause after Proposition 64), with United States v. Maffei, 417 F.Supp.3d 1212, 1223-29 (N.D. Cal. 2019) (after Proposition 64, marijuana smell alone does not provide probable cause to believe contraband is in vehicle). Martinez and Maffei are both on appeal before the Ninth Circuit Court of Appeals, and argument is scheduled in Martinez for March 3, 2020.
The Court agrees with the reasoning and analysis of Judge Gonzalez Rogers in Maffei, and for the same reasons set forth in her order, the Court concludes that even if the officers smelled unburned marijuana emanating from the Ford Fusion, that smell did not provide either reasonable suspicion or probable cause to believe that there was contraband in the Ford Fusion. After Proposition 64, California law now explicitly provides that "[c]annabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct lawful by this section shall constitute the basis for detention, search or arrest." Cal. Health & Safety Code § 11362.1(c) (emphasis added). Officers Glenn and Roberts are San Francisco Police Department officers charged with enforcing California law, not federal law, and the Court is not persuaded by the government's arguments that notwithstanding the passage of Proposition 64, the officers could rely on the smell of marijuana alone to search the car because marijuana is illegal under federal law.
Further, the government does not assert — and there is no evidence — that there are any other objective, specific facts that the officers relied upon to believe that the defendants had contraband in the car. For example, the officers did not see any drugs or drug paraphernalia in plain view (California Health & Safety Code § 11362.3(a)(4) prohibits transporting open containers of cannabis or cannabis products while driving).
The government also argues that the "evasive" movements of the Ford Fusion provided reasonable suspicion. The government relies on Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), for the proposition that "nervous behavior is a pertinent factor in determining reasonable suspicion." The government argues, "[t]he officers saw the car cut through three lanes to drive into a parking lot that the defendants had no business stopping in, and then drive back into that same parking lot as soon as they saw the officers. The officers' observations were confirmed by the hotel manager at the time, and Walker's own admissions." Gov't Opp'n at 10. The government asserts that "[t]his `obvious attempt[] to evade officers'" supports reasonable suspicion. Id. (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).
Defendants respond that the car's movements were not evasive and in any event could not provide a particularized basis for suspecting wrongdoing. Defendants argue that the car's movements — turning into a hotel parking lot and reversing into a parking space — are far from an "obvious attempt to evade officers," and defendants note that Brignoni-Ponce involved the factually distinct circumstances of a traffic stop in a border area. See id. at 885, 95 S.Ct. 2574 ("Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area."). Defendants also assert that the government has not shown that defendants "had no business" at the hotel, and they note that Victor, the hotel employee, told officers that he did not know whether defendants were hotel guests or not.
Defendants also argue that even if the government could show that Jones' car movements were "evasive," the Court must consider the surrounding context of the encounter before determining that the movements support a finding of reasonable suspicion (or probable cause), and that specifically the Court must consider the issue of race. Defendants cite United States v. Brown, 925 F.3d 1150, 1156 (9th Cir. 2019), in which the Ninth Circuit stated, "In evaluating flight as a basis for reasonable suspicion, we cannot totally discount the issue of race." "Flight can be a problematic factor in the reasonable suspicion analysis because some citizens may flee from police for their safety," particularly black male citizens who bear the disproportionate "burden of aggressive and intrusive police action." Id. In Brown, the Ninth Circuit held that the police did not have reasonable suspicion to stop the defendant based on an anonymous tip provided through a 911 call. The anonymous tipster had reported that a young black male of medium build with dreadlocks, a camouflage jacket, and red shoes, was carrying a gun. Brown, 925 F.3d at 1151. Officers on patrol heard and responded to the 911 call, and they saw Brown on foot and determined that he matched the 911 description. The officers followed Brown for several blocks, called for backup, and after the officers turned on their patrol lights, Brown ran. The officers chased Brown, ordered him to the ground at gunpoint, handcuffed him, and found drugs and a weapon on him.
The district court denied Brown's motion to suppress and the Ninth Circuit reversed. The Ninth Circuit noted that "the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one factor in the reasonable suspicion analysis, if an admittedly significant one." Id. at 1154. The Ninth Circuit held,
Id. at 1156. The Ninth Circuit continued,
Id. at 1156-57 (internal footnote omitted);
Jones' Reply at 7 (Dkt. No. 67).
The Court agrees with defendants and finds that the government has not met its burden to show that the officers had a "particularized and objective basis for suspecting legal wrongdoing," as opposed to an "inchoate and unparticularized suspicion or hunch." Even if the movements of the Ford Fusion could be characterized as "evasive," that does not provide a particularized basis for believing that the defendants had engaged in any criminal conduct. Further, the Court "cannot totally discount the issue of race," Brown, 925 F.3d at 1156. Without anything more specific to indicate that defendants had engaged in criminal conduct, the Court finds that "evasive" driving does not provide a particularized and objective basis to permit the officers to prolong a traffic stop by investigating criminal conduct unrelated to the traffic stop.
The Court notes that Officer Glenn's declaration does not provide any information about what specific criminal conduct
In sum, the Court concludes that under the totality of the circumstances, the officers did not have reasonable suspicion to prolong the traffic stop, nor did they have probable cause to search the vehicle, even if the movements of the Ford Fusion could be characterized as "evasive" and even if the officers smelled unburned marijuana emanating from the car. The "evasive" movements of the car did not provide a particularized basis for believing that the defendants had engaged in any criminal conduct. Following passage of Proposition 64, the smell of unburned marijuana — without any other facts such as seeing marijuana in plain view or suspecting the driver of having smoked marijuana prior to driving — does not provide a basis to believe that the defendants possessed contraband in their car.
The government contends that neither defendant had a reasonable expectation of privacy in the Ford Fusion and thus that they cannot challenge the search of the vehicle. The government frames this question as one of standing. "[T]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure." Rakas v. Illinois, 439 U.S. 128, 131 n.1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005). The Supreme Court has recently instructed that "[t]he concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits." Byrd v. United States, ___ U.S. ___, 138 S.Ct. 1518, 1530, 200 L.Ed.2d 805 (2018).
The government contends that Jones did not have a legitimate expectation of privacy in the Ford Fusion because the car was rented by Walker's mother, Walker's mother did not give him permission to drive, Jones did not have a valid driver's license, and Jones was driving the car for a short period of time with Walker in the car the entire time. The government argues that these facts show that Jones did not lawfully possess or control the Ford Fusion, and thus that he did not have a legitimate expectation of privacy in the car. In support of these arguments, the government largely relies on cases outside the Ninth Circuit. See, e.g., United States v. Lyle, 919 F.3d 716, 729 (2d Cir. 2019) (holding the defendant did not have a reasonable expectation of privacy when he was driving a rental car because he was both an unauthorized driver and because he had a suspended license: "Lyle should not have been driving any car because his license was suspended, and a rental company with knowledge of the relevant facts certainly would not have given him permission to drive its car nor allowed a renter to let him do so. Under these circumstances, Lyle did not have a reasonable expectation of privacy in the rental car."); United States v. Almeida, 748 F.3d 41, 45, 47-48 (1st Cir. 2014) (holding the non-owner defendant, who had driven the car previously but who was a passenger during the stop and search, did not have a reasonable expectation of privacy in the car).
In Byrd v. United States, the Supreme Court held that "as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver." 138 S. Ct. at 1524. The government asserts, "Significantly, however, the Supreme Court did not hold that an unauthorized driver of a rental car necessarily has standing," and it cites Justice Alito's concurrence in which he wrote,
Id. at 1531-32 (Alito, J., concurring). The Supreme Court held that an unauthorized driver of a rental car could have a legitimate expectation of privacy if the driver had "lawful possession and control and the
Jones argues that under Byrd he has a legitimate expectation of privacy in the vehicle. Jones also argues that Lyle is not binding on this court, and he notes that the Second Circuit in Lyle expressly stated that its holding differed from the approach of the Ninth Circuit in United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006). See Lyle, 919 F.3d at 729-30 ("[U]nlike the Eighth and Ninth Circuits, which have held that a defendant may have standing to challenge the search of a rental car despite lacking a valid license and authorization under the rental agreement if he received an authorized driver's permission, United States v. Best, 135 F.3d 1223 (8th Cir. 1998); United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006), we conclude that an authorized renter's permission is not determinative of whether a defendant has a reasonable expectation of privacy.").
In Thomas, the Ninth Circuit held that "an unauthorized driver who received permission to use a rental car and has joint authority over the car may challenge the search to the same extent as the authorized renter." 447 F.3d at 1199. The driver in Thomas had tried to rent the car from the rental agency but the agency refused to rent to him because he had unpaid fees, and then another individual rented the car and gave Thomas permission to drive the car. Id. at 1194-95. When police officers stopped Thomas, he provided a driver's license bearing the name of an another individual. Id. at 1195. The officer searched the car and found, among other items, cocaine and heroin. In the district court, Thomas moved to suppress the evidence seized in the search of the rental car. The district court denied the motion on the ground that "an unauthorized driver of a rental car has no expectation of privacy, so Thomas lacked standing to challenge the search." Id. at 1196.
The Ninth Circuit reversed, holding that "an authorized driver may have standing to challenge a search if he or she has received permission to use the car." Id. at 1199.
The Court concludes that under the totality of the circumstances, Jones had a reasonable expectation of privacy in the Ford Fusion. Jones and Walker are cousins, and the car was rented by Walker's mother/Jones' aunt. See Thomas, 447 F.3d at 1197 (indicating that relationship between driver and owner/renter is relevant to determining expectation of privacy). Walker's mother gave Walker permission to drive the car, and Walker asked Jones to drive because he was tired. See Byrd, 138 S. Ct. at 1528-29 ("there may be countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it — perhaps the renter is drowsy or inebriated."). At the time of the stop and seizure, Jones was driving with the permission of Walker, and Jones had possessions in the vehicle (such as his backpack, which was searched). Before the police approached the vehicle, Walker exited the car, leaving Jones with sole possession of the car and its keys. See Portillo, 633 F.2d at 1317. Jones had "complete dominion and control over" the car at the time of the stop and seizure. The Court acknowledges that Jones did not have a valid driver's license, and this fact does somewhat diminish the reasonableness of Jones' expectation of privacy. However, as Jones notes, the driver in Thomas also did not have a valid driver's license. The Court concludes that notwithstanding his suspended license, under all of the circumstances, Jones had a reasonable expectation of privacy in the car that he was driving when the officers conducted the stop and search.
Further, even if Jones did not have a reasonable expectation of privacy in the car, he can still challenge the search of the vehicle as the fruit of the unlawfully prolonged seizure. In United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000), the Ninth Circuit held that a passenger "who has no expectation of privacy in a car that would permit [his] Fourth Amendment challenge to a search of the car ... may challenge a stop of a vehicle on Fourth Amendment grounds even if she has no possessory or ownership interest in the vehicle." Id. at 1095 (internal citations and quotation marks omitted). The Ninth Circuit held that "while Twilley does not have standing to challenge the search directly, if the defendant could establish that the initial stop of the car violated the Fourth Amendment, then the evidence that was seized as a result of that stop would be subject to suppression as `fruit of the poisonous tree.'" Id. (internal citation and quotation marks omitted); see also United States v. Rodriguez-Escalera, 884 F.3d 661, 667, 672 (7th Cir. 2018) (where traffic stop was lawful at its inception but unlawfully prolonged and passenger lacked standing to directly challenge search of vehicle, holding passenger could nevertheless could challenge search of vehicle as fruit of the unlawful seizure and affirming district court's suppression order).
The government raises a different challenge to Walker's expectation of privacy in the rental car. The government contends that "Walker lacks standing to contest the search of the car because someone who is `wrongfully on a premises [can] not move to suppress evidence obtained as a result of searching them.'" Opp'n at 5 (quoting Rakas v. Illinois, 439 U.S. 128, 141, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). The government notes that at the time of the stop and search, Walker was still serving the custodial portion of the sentence imposed in United States v. Walker, CR 10-772-SI, and the government asserts that Walker had failed to "remain within the extended limits of []his confinement."
Id. The government has also submitted a copy of a "Center Discipline Committee Report," from the Federal Bureau of Prisons, which states that Walker was found to have been in an "unauthorized vehicle" (among other charges, including "possession of weapon") based upon the events of January 8-9, 2018, and that he was disciplined as a result. Krishnamurthy Decl., Ex. 8. As noted supra, at the hearing the government appeared to back away from its assertion that because Walker was serving the custodial portion of his sentence at a halfway-house, he was akin to an inmate who does not have any Fourth Amendment protections.
Walker contends that he had a reasonable expectation of privacy in the Ford Fusion. Walker notes that he was authorized to work at On-Trac located in South San Francisco, and that at the time of the stop he was on his way to work. Walker notes that while he was disciplined, he was never determined to be on escape status or determined to have absconded from custody. Walker also notes that he returned to the halfway-house at the appointed hour (by 10:30 a.m.), albeit after having been in police custody for much of the time allotted for work. Walker argues that all of the cases cited by the government are factually distinguishable in that they involved escapees and fugitives.
For the reasons set forth above, the Court GRANTS defendants' motions to suppress.
