E.D. Pennsylvania Notes Split Re Whether an Unauthorized Driver of a Rental Car has Standing to Challenge Fourth Amendment Vehicle Search

Per U.S. v. Dennis, Slip Copy, 2007 WL 2173394 ( E.D.Pa. Jul 27, 2007) (NO. CRIM.06-650-01):

The Third Circuit has not yet addressed the question whether an unauthorized driver of a rental car has standing to challenge a vehicle search under the Fourth Amendment. However, several other Circuit Courts have addressed the issue directly. See United States v. Thomas, 447 F.3d 1191 (9th Cir.2006) (collecting cases and analyzing the Circuit split).

Of the Circuits to address the issue, the Fourth, Fifth and Tenth Circuits have adopted a bright line approach, under which an unauthorized driver of a rental car lacks standing to object to its search. See United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994); United States v. Boruff, 909 F.2d 111, 117 (5th Cir.1990); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir.1990). The Eighth and Ninth Circuits have adopted a modified bright-line approach, under which an unauthorized driver may have standing to challenge a vehicle search if he received permission from the authorized driver to use the car. United States v. Thomas, 447 F.3d 1191, 1199 (9th Cir.2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir.1998). Finally, the Sixth Circuit has adopted a totality of the circumstances approach, in which courts consider factors including, (1) whether the defendant has a driver's license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver's ability to present rental documents; (4) whether the driver had the lessee's permission to use the car; and (5) the driver's relationship with the rental company. United States v. Smith, 263 F.3d 571, 586 (6th Cir.2000).

One court in this Circuit recently considered this standing issue in light of the Third Circuit's opinion in Baker. In United States v. Kennedy, 2007 WL 1740747, *3-4 (E.D.Pa. Jun.15, 2007), the court observed that in Baker, the Third Circuit adopted a "fact-bound" inquiry into a driver's standing. Id. at *4. Accordingly, the Kennedy court held that Baker "may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test." Id. As to the bright-line approach, the court observed: "Despite the laudable qualities of this standard-including ease of applicability-it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis." Id. at *3.

This Court agrees with the analysis of the Kennedy court. In Kennedy, citing Baker, the Court predicted that "the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test." Id. at *4.