SMITH, Vice Presiding Judge.
¶ 1 On January 17, 2011, Robert Harrell Bass, Jr. was charged by Information in the District Court of Sequoyah County, Case No. CF-2011-26, with Trafficking in Illegal Drugs (marijuana), under 63 O.S. Supp.2007, § 2-415 (Count I), and Misdemeanor Possession of Drug Paraphernalia, under 63 O.S. 2011, § 2-405 (Count II).
¶ 2 On March 24, 2011, Bass filed a new Motion to Quash, Suppress and Dismiss.
¶ 3 The State raises the following propositions of error in its appeal:
¶ 4 In Proposition I, the State argues that Bass does not even have standing to challenge the search of the van, because he was not an authorized driver of the van. The State cites both Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), and Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), in support of its "standing" argument. Yet in Carter, the Supreme Court described the "standing" approach to the question of who can properly assert a Fourth Amendment challenge to a search or seizure as "an analysis that this Court expressly rejected 20 years ago in Rakas." 525 U.S. at 87, 119 S.Ct. at 472 (citing Rakas); see Rakas, 439 U.S. at 139, 99 S.Ct. at 428 ("[W]e think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.").
525 U.S. at 88, 119 S.Ct. at 472 (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. at 430 n. 12).
¶ 6 The State argues that Bass was "committing the felony of unauthorized use of a vehicle." The record, however, does not establish this claim. The record establishes only that Bass was not the named renter of the van, nor was he listed as an authorized driver, and that the van was not reported stolen. The only evidence in the record regarding whether the person listed on the rental contract authorized Bass to drive the van is Bass' statement to Officer Cody Hyde that the named renter did authorize him to drive the van. Hence the question before this Court is whether the driver of a rental vehicle, who is not listed on the rental contract for that vehicle, but who claims to have been given permission to drive the vehicle by the person listed on the contract, has a reasonable expectation of privacy in the contents of that vehicle. Thus this is not a case where the vehicle stopped is determined to be stolen or where the driver admits that he or she had no legal right to be driving the vehicle at issue.
¶ 7 In United States v. Soto, 988 F.2d 1548 (10th Cir.1993), the court considered whether a driver who asserted that the car he was driving had been loaned to him by his uncle, whose name was on the car's registration, had a protected Fourth Amendment privacy interest in the car.
¶ 8 In Parker v. State, 182 S.W.3d 923, 924 (Tex.Crim.App.2006), the Texas Court of Criminal Appeals recently addressed a situation where the driver of a car stopped for "following another car at an unsafe distance" was driving a rental car that had been leased by his girlfriend. The driver was not on the rental The court stated.
¶ 9 Given these authorities and the analysis therein, this Court declines to find that Bass, who was in sole possession of the van he was driving, did not have a reasonable expectation of privacy in the contents of the van. Although Bass was not listed on the rental contract for the van, he told Officer Hyde that the person listed on the contract gave him permission to drive the van; and the record contains no evidence to the contrary. Furthermore, the rental agency confirmed that the van had not been reported stolen. Under these circumstances, we find that Bass had a right to challenge the search of the van, which led to the discovery of the marijuana that Bass was then charged with possessing.
¶ 10 In Proposition II, the State argues that the district court abused its discretion in granting Bass' motion to suppress, because the stop of the van, detention of Bass, and subsequent search of the van were all reasonable and proper. This Court reviews the district court's grant of Bass' motion to suppress for abuse of discretion. See State v. Love, 1998 OK CR 32, ¶ 2, 960 P.2d 368, 369 ("In appeals prosecuted pursuant to 22 O.S.1991, § 1053, this Court reviews the trial court's decision to determine if the trial court abused its discretion.").
¶ 11 Officer Hyde's original stop of the white van was clearly a valid traffic stop. Bass does not challenge the validity of the original stop, which was based upon Hyde's observation that the van was following another vehicle too closely and that it had crossed over the "fog line" onto the shoulder. This valid traffic stop ended, however, when Hyde gave Bass the warnings that he had written up for him, handed Bass his license, and told him to "be careful."
¶ 12 In State v. Goins, 2004 OK CR 5, 84 P.3d 767, this Court addressed the question of when an officer may continue to question a person originally detained for a valid traffic stop, after the initial traffic stop has concluded. We found that an officer can continue to question a driver after a valid traffic stop has concluded in two specific situations: "First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter." Id. at ¶ 13, 84 P.3d at 770 (quoting United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998)). The Supreme Court has recognized that the issue of whether a detaining officer has an adequate and objective basis for detaining an individual suspected of wrongdoing is based upon "the totality of the circumstances." See United
¶ 13 After the traffic stop was over and Bass had just exited Hyde's OHP vehicle, Hyde asked Bass if he would mind answering a few more questions. When Bass then voluntarily got back in Hyde's car, a consensual encounter began. During this encounter, Bass voluntarily answered Hyde's question about whether he had any weapons or anything illegal in the van. (Bass said "no.") Hyde then asked Bass for permission to search the van, but Bass said "no" and asked if he could leave. Hyde then told Bass that he was not free to leave and that he needed to stay in the patrol car. The consensual encounter ended at this time; and the question for this Court is whether, at this point, Hyde had adequate, articulable "reasonable suspicion" that illegal activity had occurred or was occurring, in order to detain Bass any longer.
¶ 14 This Court notes that it is irrelevant to the legality of the ensuing detention that Officer Hyde originally attempted to get Bass to engage in a consensual encounter and to voluntarily agree to a search of his van. There is nothing improper in an officer — who may also have adequate reasonable suspicion to detain a particular individual — initially attempting to prolong his interaction with that person (whom he suspects of illegal activity) through the voluntary consent of that person. This is what Hyde attempted to do in the current case. An officer who has both adequate reasonable suspicion and voluntary consent can feel quite comfortable that his continuing encounter with the stopped individual is lawful and is unlikely to be found improper at a later time.
¶ 15 In the district court's brief comments at the time it granted Bass' motion to suppress and in the court's later written findings, the court appears troubled (and even offended) by the fact that Officer Hyde "released" Bass to go and then, just moments later, detained him — without any new suspicious behavior on the part of Bass. This Court emphasizes that the legal question remains whether, at the point Hyde detained Bass, the totality of the circumstances provided Hyde with an adequate, particularized, and objective basis for doing so. This Court does not hesitate to find that Officer Hyde had an adequate reasonable suspicion of Bass under this standard.
¶ 16 Bass originally told Officer Hyde that he himself rented the white van, yet he was unable to produce the rental contract. A short time later, Hyde learned from the rental company that it was not Bass who actually rented the van, but someone else — and that the van was supposed to be returned in San Francisco in four days, even though Bass was going east and had stated that he was headed home to North Carolina. The fact that Bass then changed his story and said that yes, the other person did actually rent the van — and that they had actually been together in San Francisco, though Bass had earlier stated he was traveling alone — but that the other person rented the van for Bass, only increased the suspiciousness of Bass' situation. The State emphasizes Hyde's testimony about how nervous Bass appeared during the stop — that his hands were shaking; his voice was cracking; he had visible sweat beads on his face, etc. This Court finds that Hyde's testimony in this regard supports our conclusion herein, but that Bass' lies and shifting stories are the most important factors in this Court's determination that Hyde did have adequate reasonable suspicion to detain Bass. See State v. Paul, 2003 OK CR 1, ¶ 3, 62 P.3d 389, 390 (inconsistent statements about destination and questionable proof of authority to operate vehicle provide reasonable suspicion).
¶ 17 In its 7/26/12 "Findings of Fact and Conclusions of Law," the district court found that "Bass's actions in the patrol vehicle as testified to by Trooper Hyde did not establish an objectively reasonable and articulable suspicion that the vehicle contained illegal contraband." This approach, however, misunderstands the analysis at issue. First, neither Hyde nor this Court is limited to considering the "actions" of Bass while he was "in the patrol vehicle" in making the determination of whether Hyde had an adequate and objective "reasonable suspicion" at the time he told Bass that he was not free to leave. The dishonest and shifting words of Bass,
¶ 18 This Court finds that Hyde had adequate reasonable suspicion to detain Bass for the few minutes that passed while Hyde got his trained drug detection dog out of the backseat of his OHP vehicle and then took the dog around the white van.
¶ 19 The district court abused its discretion in granting Bass' motion to dismiss. Hence the grant of Bass' motion to suppress must be reversed, and this matter must be remanded to the district court.
¶ 20 The decision of the district court granting Bass' motion to suppress is
LEWIS, P.J. and A. JOHNSON, J.: concur.
C. JOHNSON, J.: specially concur.
LUMPKIN, J.: concur in part/dissent in part.
LUMPKIN, Judge: Concurring in part/Dissenting in part.
¶ 1 I concur in the result reached, however, I do not agree with the Opinion's analysis and determination of Proposition One. Instead, I find that Appellee did not have the capacity to claim protection of the Fourth Amendment in the present case.
¶ 3 In the present case, Appellee was driving a van eastbound on Interstate 40 in Eastern Oklahoma when Trooper Hyde stopped him for two traffic violations. (P.H. 13-14). Appellee informed Hyde that he had rented the van in California and intended to drop the vehicle off in his home state of North Carolina. (P.H. 14-15, 17, 33). He further explained that he had flown to California by himself to look around. He rented the vehicle to drive home because there was a mechanical issue with his plane. (P.H. 17-19). Appellee was unable to provide Hyde with a copy of the rental agreement. (P.H. 15, 29). Trooper Hyde checked and determined that the van had not been reported stolen. (P.H. 30). Hyde then contacted the rental company. He discovered that Appellee was not on the rental agreement, the van had been rented by a third party that was not present, there were no additional drivers listed with the rental agency, and the van was supposed to be returned to the airport in San Francisco. (P.H. 14-16, 18, 32-33). Appellee overheard Hyde's conversation with the rental company and changed his story. Appellee informed Hyde that he had met a friend in Chicago; they had flown to California, and stayed together for the duration of their trip. He claimed that this friend had rented the vehicle for him and provided Trooper Hyde with the name under which he thought the vehicle was rented. (P.H. 18-19). Based upon Appellee's inconsistent statements and his physical behavior, Trooper Hyde did not believe that Appellee was being truthful when he claimed that a friend had rented the vehicle for him. (P.H. 35).
¶ 4 As Soto did not involve a non-authorized driver operating a rental car, it is clearly distinguishable from the present case. Soto may also be distinguished from the present case based upon the fact that Appellee provided conflicting stories as to how he acquired possession of the van and the Trooper's belief that Appellee was not being truthful.
¶ 5 Instead, the present case is nearly identical to the Tenth Circuit's opinion in United States v. Roper, 918 F.2d 885 (10th Cir.1990). In Roper, the defendant was driving a vehicle through Oklahoma that the backseat passenger's common-law wife had rented. Id., 918 F.2d at 886. The rental agreement stated that the car could only be driven by the lessee and could not be driven outside the State of California without written permission. Id. Neither the defendant nor the backseat passenger was listed as an additional driver on the rental contract. Id., 918 F.2d at 888. The Tenth Circuit determined that the defendant did not have standing to challenge the search of the vehicle he was driving because he was not the owner nor was he in lawful possession or custody of the vehicle at the time of the stop. Id., 918 F.2d at 887-88.
¶ 6 Roper cited and followed the opinion in United States v. Obregon, 748 F.2d 1371 (10th Cir.1984). Id., 918 F.2d at 887-88. In Obregon, the defendant was driving a rented vehicle and was not named on the rental agreement or any other documents, either as the renter or as an authorized driver. Obregon, 748 F.2d at 1374. The Tenth Circuit determined that the district court's holding that the defendant did not have a legitimate expectation of privacy in the car he was driving and therefore did not have standing to challenge the stop and subsequent search of the car by police was not clearly erroneous. Id., 748 F.2d at 1375.
¶ 8 The Opinion also relies upon Parker v. State, 182 S.W.3d 923 (Tex.Crim.App.2006), however, the Texas Court of Criminal Appeals did not find that an unauthorized operator of a rental car has a legitimate expectation of privacy in the vehicle. Id., 182 S.W.3d at 926-27. Instead, Parker held that:
Id., 182 S.W.3d at 927, citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
¶ 9 In Parker, the defendant's girlfriend, the renter of the vehicle, testified at the suppression hearing that she rented the car because her personal vehicle was being repaired. Id., 182 S.W.3d at 924, 927. Although the defendant was not listed on the rental agreement as an authorized driver, the girlfriend intended to share the rental car with the defendant in the same way they normally shared her car. Id., 182 S.W.3d at 924. Because the record reflected that the defendant had the renter's express permission to drive the car and there was nothing to suggest that the defendant knew the terms of the rental agreement or that he was not listed as an authorized driver, the court found that the defendant had a reasonable expectation of privacy in the vehicle. Id., 182 S.W.3d at 927.
¶ 10 The Texas Court of Criminal Appeals is not the only court to reject a bright-line rule. In United States v. Kennedy, 638 F.3d 159 (3rd Cir.2011), the Third Circuit Court of Appeals determined whether the driver of a rental car that had been lent the car by the renter, but who had not been listed on the rental agreement as an authorized driver, had a legitimate expectation of privacy in the car. Id., 638 F.3d at 161.
Id., 638 F.3d at 165.
¶ 11 In United States v. Smith, 263 F.3d 571 (6th Cir.2001), the Sixth Circuit Court of Appeals stated:
Id., 263 F.3d at 586. In Smith, the Sixth Circuit distinguished Obregon and related cases:
Id., 263 F.3d at 586-87.
¶ 12 I, too, find that a bright-line rule is inconsistent with the Supreme Court's established Fourth Amendment jurisprudence. The core of the Fourth Amendment is "`[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'" Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 2041, 150 L.Ed.2d 94 (2001). To claim the protection of the Fourth Amendment an individual must have a "legitimate expectation of privacy" that has been invaded by the government. Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580, quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). The inquiry as to whether an individual has a legitimate expectation of privacy embraces two questions. Id. First, whether the individual, by his conduct has exhibited an actual (subjective) expectation of privacy, that is to say that, the individual has shown that he seeks to preserve something as private. Id. Second, whether the individual's subjective expectation of privacy, viewed objectively, is justifiable under the circumstances, namely, one that society is prepared to recognize as reasonable. Id. This Court is not free to adopt a bright-line rule but must consider the individual's conduct as well as the surrounding circumstances.
¶ 13 I further note that the individual asserting the right bears the burden of proving that he had a legitimate expectation of privacy in the area searched. Anderson v. State, 1999 OK CR 44, ¶ 18, 992 P.2d 409, 417, citing Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). The Supreme Court has further delineated what must be shown to establish that a subjective expectation of privacy is justifiable under the circumstances.
¶ 14 Applying the proper analysis to the present case, Appellee did not prove that he had a legitimate expectation of privacy in the rental van. Appellee's subjective expectation of privacy, if any, in the van was not justifiable under the circumstances. Appellee never established a source for the expectation in either property law or as recognized by society.
¶ 15 As to property law, Appellee never established that he was lawfully in possession of the van. The record reveals that Appellee did not rent the van. He was not listed as an authorized driver on the rental agreement. Appellee did not present any testimony or evidence in support of his motion to suppress. He simply relied upon the Trooper's testimony from the preliminary hearing. As such, the present case is distinguishable from Parker. The Trooper's testimony as to Appellee's contradictory statements as to how he came into possession of the van are simply insufficient to prove that the renter had permitted Appellee to drive the van. This is particularly the circumstance where the Trooper has validly testified that he suspected Appellee was not being truthful.
¶ 16 As to societal recognition, Appellee's relationships to the vehicle and its authorized driver were attenuated. There is no evidence of a prior vehicle sharing arrangement between boyfriend and girlfriend as shown in Parker. There is no indication of a close relationship with the rental company and the renter as shown in Smith.
¶ 17 Reviewing the surrounding circumstances, Appellee failed to establish that he had the capacity to claim protection of the Fourth Amendment as to the search of the rental van. Therefore, I would reverse and remand the case on this basis.
C. JOHNSON, Judge, Specially Concur.
¶ 1 I concur in the Court's disposition of this case. The trial court seemed disturbed by the fact that the officer either had changed his mind about letting the motorist go about his business, or had never really intended to let the motorist leave, and was simply hoping the motorist would consent to a vehicle search. Whether such conduct on the part of police might be unreasonable, under some other fact pattern, is an issue this Court can leave for another day. In my view, the officer had plenty of reasonable suspicion to detain the motorist for additional investigation before that point in their encounter. The details of the motorist's trip, as initially related by him, were at odds with information the officer obtained from the car-rental company. The motorist then changed his story to accommodate these new facts. The motorist's story simply did not add up, and warranted additional investigation. There was no unreasonable delay in that effort, as a drug-sniffing dog was already on the scene, and its reaction to the vehicle quickly provided probable cause for a full-blown arrest.
See id. at 1553.
