                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 18-2407
                          ___________________________

                               United States of America

                          lllllllllllllllllllllPlaintiff - Appellee

                                             v.

                                        CJ Bettis

                        lllllllllllllllllllllDefendant - Appellant
                                        ____________

                     Appeal from United States District Court
                      for the District of Minnesota - St. Paul
                                   ____________

                              Submitted: March 15, 2019
                               Filed: January 10, 2020
                                   ____________

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
                         ____________

KOBES, Circuit Judge.

       CJ Bettis challenges the denial of his motion to suppress nearly 200 grams of
heroin found in a rental car he was driving. Because law enforcement obtained
additional facts during the traffic stop that “established beyond question the existence
of probable cause,” United States v. Olivera-Mendez, 484 F.3d 505, 513 (8th Cir.
2007), we affirm the district court.1

                                         I.

       In the summer of 2016, informants tipped off police that Bettis was selling
heroin in the Minneapolis area. Bettis, who has two prior convictions involving
trafficking heroin from Chicago, is married to Natasha Daniels. In a previous
investigation, police had searched his home and found more than 80 grams of heroin
and a fake ID. When law enforcement learned that Bettis was in Chicago and likely
driving a Toyota rented by Daniels, they set up surveillance on his return route.

       Shortly before 5 p.m. on November 8, 2016, Minnesota State Trooper Derrick
Hagen stopped the Toyota for speeding on I-94. When asked for identification, the
driver presented an Illinois photo ID with the name “Vernon Silas.” Trooper Hagen
recognized him as Bettis. A passport identified the passenger as Dalia Taha. Bettis
did not have a valid license. The rental contract showed that Daniels, who was not
in the car, was the only authorized driver.

       Trooper Hagen smelled a strong odor of raw marijuana coming from the
vehicle. He separated Bettis and Taha and questioned both. Bettis claimed that he
had traveled to Chicago with his son and attended a cousin’s birthday party with
Taha. When the trooper said that he smelled marijuana, Bettis admitted that he and
Taha had smoked in the car. Taha told a different story. She claimed that she had
been at a funeral with Bettis, but she could not remember any details, including the
decedent’s name. She admitted that she had smoked marijuana but not, she said, in
the rental car.


      1
        The Honorable Wilhelmina M. Wright, United States District Judge for the
District of Minnesota, adopting the report and recommendations of the Honorable
Tony N. Leung, United States Magistrate Judge for the District of Minnesota.

                                        -2-
       A second Minnesota State Trooper arrived and secured Taha in his patrol car.
Trooper Hagen then walked his drug-detection canine around the rental car. The dog
alerted to the driver’s side of the vehicle, and then indicated that the center console
had drugs. Law enforcement found marijuana remnants in the console.

       Officers conducted a roadside search using flashlights but did not find
additional drugs. Based everything they knew and because drug dealers sometimes
use marijuana to mask the odor of other drugs, the officers suspected additional drugs
were hidden in the Toyota. Shortly after 6 p.m. they towed the vehicle to a police
garage for a more thorough search. Bettis and Taha were dropped off at a nearby gas
station.

       The next day law enforcement performed another dog sniff on the rental
vehicle. After the dog alerted, they obtained a state court warrant to search the
Toyota. This time, officers discovered approximately 200 grams of heroin in the
driver’s headrest. That same day Daniels called law enforcement about the vehicle,
and the case agent said that it would be returned directly to the rental company.

        A grand jury indicted Bettis on one count of possession with intent to distribute
heroin in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and two counts of
distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). Bettis
moved to suppress the heroin found in the Toyota, arguing that law enforcement
violated his Fourth Amendment rights by towing the vehicle to the police garage after
the initial roadside search. The magistrate judge found that Bettis had standing to
challenge the seizure of the rental car under United States v. Muhammad, 58 F.3d 353
(8th Cir. 1995) (per curiam) and United States v. Best, 135 F.3d 1223 (8th Cir. 1998).
The court denied the motion to suppress because highway conditions limited the
search’s effectiveness and the suspects’ misleading and confusing stories increased
the officers’ suspicions. The district court adopted the report and recommendation
in full.


                                          -3-
      The court convicted Bettis on all three charges and sentenced him to 120
months in prison. Bettis timely appealed the denial of his motion to suppress the
heroin found in the Toyota.2 We have jurisdiction under 18 U.S.C. § 3742 and
28 U.S.C. § 1291 and review the district court’s ultimate denial of a motion to
suppress de novo. Best, 135 F.3d at 1224.

                                                II.

       We first address whether Bettis, an unauthorized and unlicensed driver of a
rental car, has standing to challenge the rental car’s seizure after the roadside search.

       Fourth Amendment standing is “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 does not implicate
Article III jurisdiction. Byrd v. United States, 138 S. Ct. 1518, 1530 (2018). We
must determine whether Bettis “had a legitimate expectation of privacy in the area
searched or the item seized.” United States v. Gomez, 16 F.3d 254, 256 (8th Cir.
1994) (citing Rakas v. Illinois, 439 U.S. 128, 138–44 (1978)). There is no “single
metric or exhaustive list of considerations,” but a defendant’s expectation of privacy
must be grounded in property law or understandings that are recognized by society.
Byrd, 138 S. Ct. at 1527. The defendant bears this burden by a preponderance of the
evidence. See United States v. Anguiano, 795 F.3d 873, 878 (8th Cir. 2015).

      The district court correctly observed that an unauthorized driver of a rental car
can establish the required expectation of privacy with “evidence of consent or
permission from the lawful owner/renter.” Muhammad, 58 F.3d at 355. We have

      2
        Bettis appears to ask that we vacate his convictions for all counts, see Bettis
Br. 17, but he makes no arguments challenging his two convictions for distribution
of heroin. Because he has not sufficiently developed any grounds for relief, he has
waived these claims. United States v. Wearing, 837 F.3d 905, 910 n.6 (8th Cir. 2016)
(per curiam).

                                          -4-
previously remanded a case to the district court for failing to determine whether an
unauthorized driver without a valid license had “permission to use the rental
automobile.” Best, 135 F.3d at 1225. If a driver can make that showing, he “would
have a privacy interest giving rise to standing.” Id. Daniels testified that Bettis had
permission to drive the Toyota, so Bettis has standing to challenge the search.

       Attempting to bypass Best, the Government claims that the Supreme Court’s
Byrd decision “seemed to signal” that unauthorized drivers lack standing if they use
a strawman to acquire a rental car because that deception strips away any reasonable
expectation of privacy in the vehicle. The Supreme Court left this question
unanswered, and on remand, “the government elected to abandon its position that
Byrd had no reasonable expectation of privacy in the rental vehicle on this basis.”
United States v. Byrd, 2019 WL 2387190, at *4 n.5 (M.D. Pa. June 6, 2019).

       Even if the Government is correct about the Supreme Court’s “signal” in Byrd,
the facts there clearly indicated a strawman transaction. Byrd accompanied Reed (the
straw woman) to the rental facility and “stayed in the parking lot in the Honda while
Reed went to the Budget desk and rented a Ford Fusion.” 138 S. Ct. at 1524. Then,
“[w]ith the rental keys in hand, Reed returned to the parking lot and gave them to
Byrd.” Id. Byrd left in the rental, and the two parted ways. Id. No such evidence is
present here.

       The Government emphasizes that Daniels gave the rental company a false
address, but on cross-examination she explained it was “the address that my ID had
on it and all my bank information and everything.” D. Ct. Dkt. 33, Suppression Hr’g
Tr. at 86:11–17. The Government also claims that renting a series of vehicles, while
owning one, is suspicious. Daniels did not deny that Bettis had driven the Toyota and
other rental cars, but she testified that in general, “I drive the rental car and if he
needed to use a car, then he could use my vehicle.” Id. at 81:5–6. Specifically, when
she rented the car on November 1—days before Bettis left for Chicago—she did not
know that he would be using it. And she thought “it was better [for Bettis] to drive

                                         -5-
the rental car due to the mileage.” Id. at 81:6–8. Daniels also explained that she did
not list her husband on the rental contract because “[i]f you add another name they
charge more.” Id. at 85:18–23. A prosecution witness testified that “Bettis does not
have a valid license so he was never listed on any agreements as an authorized
driver.” Id. at 19:7–13. The Government did not challenge or impeach this
testimony. Without more, a husband and wife sharing a rental car is not inherently
suspicious, nor does it suggest a strawman situation.

       The Government essentially invites us to overturn our precedent recognizing
that an unlicensed, unauthorized driver who has permission from the renter has a
reasonable expectation of privacy. Best, 135 F.3d at 1225. We decline that invitation
because we do not see Byrd as requiring that result. United States v. Williams, 537
F.3d 969, 975 (8th Cir. 2008) (one panel cannot overrule another). If anything, Byrd
lends support to our precedent because it rejected the Government’s argument that
“drivers who are not listed on rental agreements always lack an expectation of privacy
in the automobile.” 138 S. Ct. at 1527–1528.

        We recognize that post-Byrd a sister circuit3 has concluded that an
unauthorized driver operating “the vehicle illegally” does “not have lawful possession
or control of the vehicle.” United States v. Lyle, 919 F.3d 716, 730 (2d Cir. 2019).
The Second Circuit found that an unlicensed driver is similarly situated to a defendant
that is wrongfully present in the place searched. Id. Thus, an illegal act deprives the
defendant of standing “when the law prevents him from being there in the first place,
even with the owner’s permission.” Id.

      Although it is illegal to operate a vehicle without a license, it may not have the
same effect as a defendant’s “wrongful” presence. The Supreme Court’s examples

      3
        Prior to Byrd, the Ninth Circuit agreed with our decision in Best. United
States v. Thomas, 447 F.3d 1191, 1195–96 (9th Cir. 2006). Although the Seventh
Circuit does not agree with us, one panel has called for reconsideration. United
States v. Sanford, 806 F.3d 954, 958 (7th Cir. 2015).

                                          -6-
of wrongful presence, such as a “burglar plying his trade” or a car thief, involve
criminal conduct that interferes with another’s valid property interest. Byrd, 138 S.
Ct. at 1529. In contrast, the Court conferred standing on an overnight guest hiding
in a closet from the police, Minnesota v. Olson, 495 U.S. 91, 94 (1990), and a
houseguest that “kept a ready supply of heroin on hand,” Jones, 362 U.S. at 268.
Both guests had permission to use the premises and their illegal acts did not void their
privacy interests.

        An unlicensed driver has more in common with misbehaving guests because
the illegal act of unlicensed driving does not interfere with a valid possessory interest.
Here, that interest is Daniels’s lawful possession of the rental car. Byrd, 138 S.Ct. at
1528 (seeing no reason why unauthorized user’s expectation of privacy would differ
when car is rented or owned). Driving without a valid license does not deprive the
vehicle’s renter (or owner) of that interest. United States v. Walton, 763 F.3d 655,
666 (7th Cir. 2014) (renter); see e.g., Arizona v. Gant, 556 U.S. 332, 335 (2009)
(owner). In Byrd, the Government conceded that using a handheld phone while
driving (illegal in some jurisdictions), would violate the rental contract but not affect
an authorized driver’s expectation of privacy. 138 S. Ct. at 1529. Indeed, if illegally
operating a vehicle stripped one’s expectation of privacy, common traffic infractions
would eviscerate the Fourth Amendment’s protections. As unlicensed driving does
not affect Daniels’s possessory interest, her consent provided Bettis a reasonable
expectation of privacy in the rental car. Best, 135 F.3d at 1225.

      In sum, even if a strawman eliminated Fourth Amendment standing, the
evidence here does not establish a strawman situation and our precedent holds that
an unauthorized and unlicensed driver may challenge a search of a rental car operated
with the renter’s permission. Bettis has standing to challenge the search of the
vehicle.




                                           -7-
                                          III.

       Bettis does not challenge the traffic stop, the initial dog sniff, or the roadside
search. Bettis Br. 19–22. He argues only that seizing and towing the Toyota after
only finding marijuana debris violated his Fourth Amendment rights. Id. at 17.
Specifically, he claims that because officers came up empty handed on the shoulder
of the highway, they did not have “probable cause to believe that any additional drugs
would be found in the vehicle.” Id. at 22. We disagree.

       Although a warrantless search is usually per se unreasonable, probable cause
“justifies the search of every part of the vehicle and its contents that may conceal the
object of the search.” United States v. Ross, 456 U.S. 798, 825 (1982). “Probable
cause exists when, given the totality of the circumstances, a reasonable person could
believe there is a fair probability that contraband or evidence of a crime would be
found in a particular place.” United States v. Murillo-Salgado, 854 F.3d 407, 418
(8th Cir. 2017) (citation omitted); see Chambers v. Maroney, 399 U.S. 42, 49 (1970)
(same standard for automobile seizures). Armed with probable cause, law
enforcement “may conduct a warrantless search of the vehicle, even after it has been
impounded and is in police custody.” Michigan v. Thomas, 458 U.S. 259, 261 (1982)
(per curiam). This “search need not be completed on the shoulder of the road.”
United States v. Casares-Cardenas, 14 F.3d 1283, 1286 (8th Cir. 1994).

        We have previously rejected a defendant’s claim that after the “initial roadside
searches of the car revealed no drugs or secret compartments, [law enforcement]
lacked probable cause to search the vehicle further.” United States v. Olivera-
Mendez, 484 F.3d 505, 512 (8th Cir. 2007). Like Bettis, Olivera-Mendez was
stopped for speeding. Id. at 507. During the stop, the officer noticed the strong smell
of air freshener. Id. The license plates and registration also contradicted Olivera-
Mendez’s claims that he owned the car and lived in Indiana. Id. at 507–508. After
a canine alert, the officer “searched the Isuzu twice at the roadside” discovering an
air freshener, two strips of car repair materials, and mismatched paint. Id. The police

                                          -8-
towed the car to the Highway Patrol garage to “conduct a more extensive search of
the vehicle.” Id. Six hours later, law enforcement obtained a search warrant to drill
into the vehicle and found fifteen kilograms of cocaine. Id.

       We held that probable cause “did not ‘dissipate’ simply because it took a long
time to complete a reasonable and thorough search of the car.” 484 F.3d at 508.
Indeed, some searches “require [] dismantling of the automobile to recover the
drugs.” Id. at 512. The air freshener “supported a suspicion that Olivera–Mendez
was attempting to mask the odor of illegal drugs” and other indicia of contraband
further justified the search. Id. at 513.

       We reach a similar conclusion here. As the encounter with Bettis unfolded,
officers developed additional evidence indicating deception and criminal conduct.
Bettis gave the officer a false name and photo ID. Although he admitted Daniels was
the only authorized driver, he referred to his wife as “a friend of mine.” He initially
lied about smoking marijuana. And Bettis and his passenger gave inconsistent stories
about where they smoked and what they had done in Chicago. The canine alert, the
modus operandi resembling Bettis’s past crimes, and the knowledge that marijuana
is used to mask other illegal drugs all indicated that Bettis was hiding more drugs.

       As more facts came to light, law enforcement properly decided to conduct a
more thorough search than flashlights on the shoulder of a busy highway allowed.
It was also reasonable to perform a second dog sniff after the marijuana odor
subsided. Bettis and Taha were not delayed beyond the traffic stop and no one
demanded the immediate return of the vehicle. Moreover, after the second dog
alerted, law enforcement obtained a valid search warrant.

       Other practical concerns support the reasonableness of the officers’ actions.
Without a valid license, the police could not allow Bettis to drive. At the time of the
stop, the rental contract in the vehicle showed that it was overdue by one day. Bettis
had no proof that the contract had been extended, and his earlier deception justified

                                         -9-
maintaining control of the rental vehicle after normal business hours. We agree with
the district court that law enforcement had probable cause to seize the vehicle and
continue the search.

      The judgment of the district court is affirmed.


SHEPHERD, Circuit Judge, concurring in part and concurring in the judgment.


      I concur in the court’s opinion, including the conclusion reached in Section II
that Bettis has standing to challenge the search of the vehicle. However, I do not join
the court’s discussion in Section II and I would simply find that the issue is controlled
by Muhammad, 58 F.3d at 355 and Best, 135 F.3d at 1225.
                        ______________________________




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