Unauthorized Driver of Rental Car Can Fight Search of Wrapped Packages
A Colorado state trooper stopped Melissa Sotelo for driving too slowly in the left-hand lane. Sotelo was driving a car rented from Hertz by Patrick Schooler, but there were no other authorized drivers listed. The car wasn't stolen, and Schooler was a friend of the passenger, Janelle Mireles. Hertz asked the police to impound the car.
Before they did, they conducted an inventory search and found three gift-wrapped boxes in the back seat. The driver and passenger said the boxes contained baby clothes, a karaoke machine, and a baby stroller -- birthday gifts for Sotelo's daughter. Suspicious, the trooper obtained a search warrant, then opened the boxes. Happy birthday! Marijuana.
An Issue of First Impression
It's apparently an issue of first impression in Colorado: "Whether the unauthorized driver of a rental car has standing to challenge a search of packages within that rental car." Also, even though a warrant was issued, Sotelo challenged the probable cause for issuing the warrant.
The Colorado Supreme Court was careful to let us know what it was deciding: The search of the packages in the car, not the search of the car itself. As the court said in a footnote, "[A]n overwhelming majority of courts apply a bright-line rule that denies an unauthorized driver standing to challenge a search of a rental vehicle because such a driver cannot have a legitimate expectation of privacy in the vehicle itself."
That doesn't necessarily apply to the stuff seized from the car, though. Removing the rental car from the equation makes the analysis relatively simple. Standing is determined based on legitimate expectations of privacy "either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."
Applying this rule to Sotelo, the court said she did exhibit an expectation of privacy by continuously asserting the packages were hers and by covering the packages with wrapping paper in the first place. And this is an expectation that society thinks is reasonable. "Indeed, the reason packages are gift-wrapped is to conceal their contents." The majority thus upheld the motion to dismiss.
Dissent: You Forgot Some Things
Justice Brian Boatright -- who makes law, not boats -- dissented, saying the majority failed to consider the "totality of the circumstances" when evaluating Sotelo's expectation of privacy, including:
- Mireles had only known Schooler for a few months;
- The boxes in the car weren't the right size or shape for what was allegedly in them; and,
- Mireles and Sotelo's stories about the trip weren't consistent
For Boatright, the fact that the actual renter of the car wasn't present, and that neither Sotelo nor Mireles were authorized drivers, was a key factor swaying him toward finding society wouldn't think their privacy expectation was reasonable. At the very least, he wanted to see the case remanded for a consideration of some of this evidence, which actually didn't end up before the trial court.
- 10th Cir: Good Faith Exception Enough, Even Without Probable Cause (FindLaw's U.S. Tenth Circuit Blog)
- Lesson From U.S. v. Henderson: Don't Give Up, Poll the Jury (FindLaw's U.S. Tenth Circuit Blog)
- Parolees Have a Diminished Expectation of Privacy, 10th Reminds (FindLaw's U.S. Tenth Circuit Blog)
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