               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 31789

STATE OF IDAHO,                                  )     2007 Opinion No. 4
                                                 )
       Plaintiff-Respondent,                     )     Filed: February 12, 2007
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
BOBBY ALLEN CUTLER,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Darla S. Williamson, District Judge.

       Judgment of conviction for trafficking in a controlled substance, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant. Justin M. Curtis argued

       Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney
       General, Boise, for respondent. Lori A. Fleming argued.
                   ______________________________________________

GUTIERREZ, Judge
       Bobby Allen Cutler appeals from his judgments of conviction for felony trafficking in
methamphetamine and misdemeanor unlawful entry, specifically challenging the denial of his
motion to suppress evidence. We affirm.
                                                I.
                                 FACTS AND PROCEDURE
       After noticing a vehicle traveling at approximately 45 mph in a 25 mph zone at around
8:30 one morning, Officer Schultz of the Boise Police Department pulled over the driver. As the
officer approached, Cutler exited the vehicle and immediately shut the door. Officer Shultz
requested he get back into the vehicle, but Cutler could not open the door because it was now
locked with the keys inside. He told the officer that another set of keys was at his apartment and
requested consent to retrieve them. Denying permission, Officer Shultz told Cutler to stand next




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to the officer’s motorcycle at which point Cutler momentarily paused and then fled the scene on
foot.
        Officer Schultz requested backup to secure Cutler’s vehicle and commenced to give
chase. Having failed to apprehend Cutler, he returned to the vehicle and, along with Officer
Lookhart, began to investigate its ownership. When he ran the license plate number through
dispatch, Officer Shultz discovered the car was registered to Budget Rental Car (Budget).
Officer Lookhart called the company and was told the car was rented to Jonas Hernandez who,
when contacted by the officer, said he had loaned the car to a friend, Nick Stewart. When
reached by telephone, Stewart said he had loaned the vehicle to Cutler. According to the rental
agreement, which had expired four days earlier, Hernandez was the only authorized driver.
        When asked whether they wanted the vehicle to be impounded or wanted to pick it up,
Budget elected the latter. However, prior to Budget’s representative (a tow truck) arriving on the
scene, Officer Schultz used a “slim jim” to gain entrance and conducted an “inventory search” of
the car. During the course of the search, Officer Schultz discovered a methamphetamine pipe in
the pocket of the driver’s side door and a backpack on the floor in front of the passenger seat
containing baggies, a rubber glove, pipes, a substance appearing to be methamphetamine, a
traffic citation, and mail bearing Cutler’s name.
        The substance was confirmed to be methamphetamine, and Cutler was charged with
trafficking in methamphetamine, I.C. § 37-2732B(a)(4), and unlawful entry, I.C. § 18-7034.1 He
moved to suppress the evidence relating to the drug charge, arguing it was obtained in the course
of an illegal search of the car. After the district court denied the motion, Cutler entered a
conditional guilty plea, reserving the right to appeal the lower court’s denial of his motion to
suppress. This appeal followed.
                                                II.
                                           ANALYSIS
        Cutler challenges the district court’s denial of his motion to suppress the evidence found
in the rental car he was driving, arguing it is the product of an illegal search. The standard of
review of a suppression motion is bifurcated. When a decision on a motion to suppress is
challenged, we accept the trial court’s findings of fact which are supported by substantial

1
        The unlawful entry charge arose from an unrelated incident.


                                                    2
evidence, but we freely review the application of constitutional principles to the facts as found.
State v. Atkinson, 128 Idaho 559, 561, 916 P.2d 1284, 1286 (Ct. App. 1996). At a suppression
hearing, the power to assess the credibility of witnesses, resolve factual conflicts, weigh
evidence, and draw factual inferences is vested in the trial court. State v. Valdez-Molina, 127
Idaho 102, 106, 897 P.2d 993, 997 (1995); State v. Schevers, 132 Idaho 786, 789, 979 P.2d 659,
662 (Ct. App. 1999).
       Initially, the district court determined Cutler did not have standing2 to challenge the
search and subsequent seizure on the grounds that he was not named as an authorized driver of
the car and that he abandoned the vehicle by running from the scene. The Fourth Amendment to
the United States Constitution, as well as article I, § 17 of the Idaho Constitution, prohibit
unreasonable searches. However, even if a search is improper, only an individual with a privacy
interest invaded by the search may obtain suppression of the evidence detected. Rakas v. Illinois,
439 U.S. 128, 133-34 (1978); State v. Hanson, 142 Idaho 711, 716, 132 P.3d 468, 473 (Ct. App.
2006); State v. Foldesi, 131 Idaho 778, 780, 963 P.2d 1215, 1217 (Ct. App. 1998). Thus, when a
search is challenged, the defendant has the burden to make a threshold showing that he has a
legitimate expectation of privacy in the place or thing searched. Rawlings v. Kentucky, 448 U.S.
98, 104 (1980); Hanson, 142 Idaho at 717, 132 P.3d at 474; State v. Peters, 130 Idaho 960, 961-
62, 950 P.2d 1299, 1300-01 (Ct. App. 1997); State v. Holman, 109 Idaho 382, 386, 707 P.2d 493,
497 (Ct. App. 1985). In other words, a defendant seeking suppression must show he had a
subjective expectation of privacy in the place or thing searched that society is willing to
recognize as reasonable in light of all the circumstances. State v. Morris, 131 Idaho 562, 565,
961 P.2d 653, 656 (Ct. App. 1998).
       The dispositive inquiry here is whether Cutler’s status as an unauthorized driver of the
rental car extinguishes his standing to challenge the constitutionality of the search or whether he
possessed a legitimate expectation of privacy in the vehicle regardless of that fact. The extent to




2
       As we noted in State v. Hanson, use of the term “standing” in this context is technically
inaccurate. 142 Idaho 711, 716 n.2, 132 P.3d 468, 473 n.2 (Ct. App. 2006). However, as in
Hanson, we continue to use the term as useful shorthand in reference to whether the defendant
had a privacy interest in a place that was searched such that the exclusionary rule is applicable to
any incriminating evidence uncovered.

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which the driver of a rental vehicle, who is neither the renter nor an authorized driver under the
rental agreement, has standing to challenge a search of the vehicle is a question of first
impression in Idaho. It is an issue that has resulted in at least three disparate approaches, with
the differences seen most clearly in the split that has evolved between the federal circuit courts.
       The first approach, espoused by the Fourth, Fifth,3 and Tenth Circuit Courts, is a bright-
line rule looking solely to the rental agreement. These circuit courts have determined that one
driving or occupying a rental vehicle who is not the renter and is not authorized by the rental
company to drive the vehicle, even if he or she has permission from a person who is an
authorized driver, has no reasonable expectation of privacy in the vehicle and consequently lacks
standing to complain of the vehicle’s subjection to an allegedly unlawful search. See e.g., United
States v. Jones, 44 F.3d 860, 871 (10th Cir. 1995); United States v. Wellons, 32 F.3d 117, 119
(4th Cir. 1994); United States v. Boruff, 909 F.2d 111, 117 (5th Cir. 1990). See also State v.
Pabillore, 133 Idaho 650, 653, 991 P.2d 375, 378 (Ct. App. 1999) (recognizing the district
court’s determination that the defendant did not have standing because he was not the renter or
authorized driver of a rental vehicle was supported by numerous authorities). The circuit courts
adopting this approach reason that because an unauthorized driver does not have a property or
possessory interest in the car, the driver does not have an expectation of privacy in that car.
       Taking a modified view of the bright-line approach are the Eighth and Ninth Circuit
Courts which generally do not allow standing unless an unauthorized driver can show he had
permission from the authorized driver to use the vehicle. See e.g., United States v. Thomas, 447
F.3d 1191, 1199 (9th Cir. 2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998);
United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995). As the Ninth Circuit Court
recognized in Thomas, this approach essentially equates an unauthorized driver of a rental car
with the non-owner driver of a privately owned car. Thomas, 447 F.3d at 1197 (comparing the
rental scenario to United States v. Portillo, 633 F.2d 1313, 1317 (9th Cir. 1980), which held that

3
        The Fifth Circuit has an outlier case, United States v. Kye Soo Lee, 898 F.2d 1034 (5th
Cir. 1990), which concluded that an unauthorized driver may have standing to challenge the
search of a rental vehicle if the driver had the renter’s permission. However, more recent Fifth
Circuit cases have followed the bright-line approach and distanced themselves from Kye Soo Lee
as “not controlling . . . because it neither reflects nor addresses the terms of the . . . rental
agreement.” United States v. Thomas, 447 F.3d 1191, 1196 n.8 (9th Cir. 2006) (quoting United
States v. Seeley, 331 F.3d 471, 472 n.1 (5th Cir. 2003)).


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a non-owner has standing to challenge a search where he has “permission to use his friend’s
automobile and the keys to the ignition and the trunk, with which he could exclude all others,
save his friend, the owner”).
       Finally, the Sixth Circuit Court rejected a bright-line approach in favor of a totality of the
circumstances inquiry. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001). While the
court recognized a presumption that unauthorized drivers do not have standing to challenge a
search, it determined that a “rigid test is inappropriate, given that we must determine whether [a
defendant] had a legitimate expectation of privacy which was reasonable in light of all the
surrounding circumstances.” Id. (citing Rakas, 439 U.S. at 152 (Powell, J., concurring)). In lieu
of sole reference to the rental agreement, the court considered several factors, including: (1)
whether the defendant had 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.
       Given the increasingly common utilization of rental vehicles for a myriad of purposes
and our view that a bright line rule fails to address the ensuing complexities, we are convinced
the Sixth Circuit Court’s totality of the circumstances approach best addresses the issue.4 In
Smith, the Court confronted a scenario where an officer had pulled over a rental vehicle driven
by Smith. The only authorized driver listed on the rental agreement, which Smith provided to
the officer, was Smith’s wife who was not present. After a subsequent search uncovered drugs,
the government contested Smith’s standing to challenge the legitimacy of the search given his
status as an unauthorized driver. The Sixth Circuit Court began its analysis by acknowledging
that as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate
expectation of privacy in a vehicle. However, the Court declined to be constrained by an
absolute maxim and instead proceeded with a totality of the circumstances inquiry to determine
whether the circumstances surrounding Smith’s occupation of the vehicle warranted finding, in
essence, an exception.




4
      Thus, we must reject the state’s argument that a person not listed on a lease agreement
automatically lacks standing. See Rakas, 439 U.S. at 145 (stating that “arcane distinctions



                                                 5
       Even though Smith was not listed as an authorized driver on the rental agreement, the
Court eventually concluded that he did have standing. Smith, 263 F.3d at 587. Several factors
were considered important. First, the Court noted that Smith was a licensed driver and it was
therefore not illegal for him to be driving in the first place. Second, it was deemed significant
that Smith was able to produce the rental agreement and to provide the officer with other relevant
information regarding the vehicle. Also, Smith had been given permission to drive the vehicle
by someone with whom he had an intimate relationship, his wife, and who was listed on the
agreement as an authorized driver, as opposed to coming into possession by way of an “unrelated
third party” about which the driver could provide little or no information. Finally, and most
significantly, the record showed that Smith himself had a business relationship with the rental
company. He had been the one to call and reserve the vehicle, had given the company his credit
card number, and was provided with the reservation number his wife utilized when she picked up
the vehicle. Thus, the Court concluded, this was not a case where an unauthorized driver was
simply granted permission by a third party renter since Smith himself was a de facto renter of the
vehicle. Based on Smith’s relationship with the authorized driver and the rental car company,
and that he had personally paid for the vehicle, the Court held that he had a legitimate
expectation of privacy in the car. Id. at 586-87.
       In contrast, the instant case presents considerably more attenuated relationships among
Cutler, the authorized driver, and the rental company, such that there are insufficient facts to
overcome the general presumption that unauthorized drivers lack standing.            There was no
evidence presented regarding the relationship between Cutler and Hernandez, the only authorized
driver--including whether they even knew each other. Accordingly, there was no evidence that
Cutler even had permission from the only authorized driver to operate the vehicle. And while
Hernandez had given Stewart permission to use the car, there was no indication regarding the
scope of that permission--most importantly, there was not evidence as to whether Hernandez’s
permission to Stewart encompassed consent for Stewart himself to lend the vehicle. In addition
to not having a relationship with the authorized renter of the car, Cutler also did not have a
relationship with Budget (quite unlike the Smith’s de facto renter status). Furthermore, not only




developed in property and tort law . . .ought not . . . control” the reasonableness of an expectation


                                                 6
was Cutler’s name absent from the rental agreement, but the agreement had expired, making
even Hernandez’s possession of the car in contravention of the contract.5 It is the totality of
these factors that preclude us from deviating, in this case, from the general rule that unauthorized
drivers of rental vehicles do not enjoy a legitimate expectation of privacy in such vehicles. Thus,
Cutler may not challenge the subsequent search of the vehicle.
       Given our holding that Cutler did not have a reasonable expectation of privacy, it is
unnecessary for us to consider his other arguments regarding abandonment and inventory search
issues as found by the trial court. Accordingly, we uphold the district court’s order denying
suppression and affirm Cutler’s judgment of conviction for trafficking in methamphetamine.
       Judge Pro Tem SCHWARTZMAN CONCURS.
       Judge LANSING, CONCURRING
       I join in the foregoing opinion, but I write separately to express my view that in the vast
majority of cases, the question whether the driver of a rental car had direct permission to use the
car from the lessee or from a contractually authorized driver will be dispositive of the standing
question. The existence of such permission should ordinarily be sufficient to confer a privacy
interest upon the driver if and to the same extent that the lessee possesses such a privacy interest.
Only in extraordinary circumstances would I hold that a driver who did not obtain permission
from the lessee or other authorized driver could have a legitimate expectation of privacy in the
vehicle. My initial impulse in this case was to adopt the position taken by the Eighth and Ninth
Circuits which, as explained in this Court’s opinion above, hold that the permission factor is
entirely dispositive. Nevertheless, I join in this Court’s opinion adopting a totality of the
circumstances approach to avoid excluding the possible, rare circumstance where a legitimate
privacy interest may arise even in the absence of direct permission from the lessee or other
authorized driver.   In that circumstance, however, the driver will bear a heavy burden to
demonstrate the existence of other factors that would give him or her a reasonable expectation of
privacy in the vehicle.




of privacy) (citing Jones v. United States, 362 U.S. 257, 266 (1960)).
5
        In regards to two other factors considered by the Smith court, whether the driver was able
to produce a driver’s license and rental documents, Cutler’s flight from the scene after having
locked the car doors precluded the officer from reaching this area of investigation.

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