                    IN THE SUPREME COURT OF THE STATE OF IDAHO

                                               Docket No. 43745



STATE OF IDAHO,                                               )
                                                              )          Boise, February 2017 Term
        Plaintiff-Respondent,                                 )
                                                              )          2017 Opinion No. 37
v.                                                            )
                                                              )          Filed: April 28, 2017
JESSE EUGENE MANN,                                            )
                                                              )          Stephen W. Kenyon, Clerk
        Defendant-Appellant.                                  )

         Appeal from the District Court of the First Judicial District of the State of Idaho,
         Kootenai County. Hon. John T. Mitchell, District Judge.

         The judgment of the district court is affirmed.

         Eric Fredericksen, State Appellate Public Defender, Boise, for appellant.
         Jenevieve C. Swinford argued.

         Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Russell J.
         Spencer argued.


HORTON, Justice.
         Jesse Eugene Mann appeals from the judgments of conviction for trafficking marijuana,
driving without privileges, and possession of drug paraphernalia which were entered after a jury
found him guilty of the charges. Prior to the trial, Mann sought suppression of the evidence
related to the marijuana and paraphernalia charges. The district court found that Mann did not
have standing 1 to challenge the search as the evidence was found in a rental car which he was not
authorized to drive. Mann argues that he had a reasonable expectation of privacy in the rental car

1
  We recognize that the term “standing” is more commonly used when evaluating the justiciability of a party’s
claims. In that broader context, we have stated that “[a] defendant obviously has standing to litigate the substantive
issue raised regarding that defendant.” Doe (2013-23) v. Doe, 155 Idaho 660, 662, 315 P.3d 848, 850 (2013).
However, in the context of suppression motions, the term is used as shorthand for the question whether the moving
party had a legitimate expectation of privacy in the area that was searched. This Court and the Court of Appeals
have used this shorthand in the past. See State v. Ryan, 117 Idaho 504, 788 P.2d 1327 (1990); State v. Hanson, 142
Idaho 711, 716 n. 2, 132 P.3d 468, 473 n. 2 (Ct. App. 2006).

                                                          1
because he had permission from the lessee to drive the car. Mann also asserts that the jury
instruction regarding the paraphernalia charge was erroneous. We affirm.
                     I. FACTUAL AND PROCEDURAL BACKGROUND
       Mann was driving east on I-90 near Coeur d’Alene when he was stopped by Idaho State
Police Trooper Josh Clark. Clark stopped Mann for signaling less than the required 5 seconds—
2.63 seconds—before changing lanes. Mann was driving a rental car which had been rented by
Ashley Cheney, his “living as married” partner of five years. Mann was not authorized by the
rental car company to drive the car. After stopping Mann, Clark approached the vehicle and
asked Mann for his driver’s license. Mann provided Clark with an Oregon identification card and
stated that his driver’s license was currently suspended. After confirming that Mann’s license
was suspended, Clark arrested him for driving without privileges.
       After arresting Mann, Clark placed him in the back seat of his police car in order to
transport him to the Kootenai County jail. Clark then conducted a pre-tow inventory search of
Mann’s vehicle. It is Idaho State Police policy to conduct an inventory search prior to a vehicle
being towed. During the search, Clark found a glass pipe with burnt residue in the top, a toffee-
like substance, and eight plastic bags containing a green plant-like substance. Clark suspected
that the toffee-like substance was a synthetic form of marijuana and that the plant-like substance
was marijuana. Clark seized these items as evidence, and they were tested by the Idaho State
Police laboratory. The lab technician concluded that the plant-like substance was marijuana and
determined that the total weight of the marijuana was 5.38 pounds.
       Mann was charged with trafficking marijuana, driving without privileges, and possession
of drug paraphernalia. Prior to trial, Mann filed a motion to suppress the evidence seized during
the inventory search. The district court heard the motion on July 22, 2015. After receiving
testimony and argument, the district court ruled that Mann did not have a reasonable expectation
of privacy in the rental car. The district court based its ruling on State v. Cutler, 144 Idaho 272,
159 P.3d 909 (Ct. App. 2007). Of the five factors laid out in Cutler, the district court found that
Mann was able to meet only one of them and the totality of the circumstances weighed against
Mann having a reasonable expectation of privacy in the rental car.
       The case then proceeded to a jury trial on August 24–25, 2015. During closing
arguments, Mann argued that the State was required to prove that he intended to use the


                                                 2
paraphernalia in Idaho. During its deliberations, the jury sent the judge three questions. One of
those questions asked whether it mattered if Mann intended to use the paraphernalia in Idaho or
elsewhere. Over Mann’s objection, the district court responded as follows: “You are instructed
that any possession of paraphernalia must occur in Idaho. If you find defendant possessed
paraphernalia in Idaho, you must consider whether the defendant intended to use the
paraphernalia. It does not matter in which state the defendant formed the intent to use the
paraphernalia.”
        After receiving the new instruction and further deliberations, the jury found Mann guilty
of all three charges. On October 20, 2015, the district court entered three separate judgments.
Mann was ordered to serve seven years, with three years fixed, and fined $10,000 for trafficking
in marijuana. He received suspended sentences of 180 days and 365 days, respectively, for
driving while suspended and possession of drug paraphernalia. Mann timely appealed from these
judgments.
                                   II. STANDARD OF REVIEW
        “We review a district court’s order granting a motion to suppress evidence using a
bifurcated standard of review.” State v. Wulff, 157 Idaho 416, 418, 337 P.3d 575, 577 (2014).
“This Court accepts the trial court’s findings of fact unless they are clearly erroneous, but may
freely review the trial court’s application of constitutional principles in light of those facts.” Id.
        “[W]hether the jury has been properly instructed is a matter of law over which this Court
exercises free review.” State v. Adamcik, 152 Idaho 445, 472, 272 P.3d 417, 444 (2012) (quoting
State v. Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996)). “This Court reviews jury
instructions to ascertain whether, when considered as a whole, they fairly and adequately present
the issues and state the applicable law.” Id. “Reversible error occurs if an instruction misleads
the jury or prejudices a party.” Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 51, 995
P.2d 816, 821 (2000).
                                          III. ANALYSIS
A. The district court did not err when it found Mann did not have standing to challenge
   the search of the rental car.
        This appeal involves an unauthorized driver of a rental car, i.e., a driver who may or may
not have permission of the vehicle’s lessee, but who has not been authorized to drive the car by
the rental car company which owns the car. Although the Court of Appeals has addressed the

                                                   3
question whether an unauthorized driver of a rental car has standing to challenge a search of that
car, the issue is before this Court for the first time. As courts across the country have taken
different approaches to deciding this question, we first consider which test should be applied.
            a. Applicable test.
        There are at least three distinct tests which courts have used to determine if an
unauthorized driver of a rental car has standing to challenge a search of that car. State v. Cutler,
144 Idaho 272, 274, 159 P.3d 909, 911 (Ct. App. 2007). The district court applied the totality of
the circumstances test adopted by the Court of Appeals in Cutler. Mann argues that this Court
should adopt a modified totality of the circumstances test articulated by Judge Lansing in her
concurring opinion in Cutler.
        The Fourth Amendment to the United States Constitution provides protection against
unreasonable searches. U.S. CONST. amend. IV. Idaho’s Constitution contains a nearly identical
provision. ID. CONST. art. I § 17. However, even if a search is unreasonable, a defendant must
have a privacy interest that was invaded by the search in order to suppress evidence discovered
in the search. Rakas v. Illinois, 439 U.S. 128, 133–34 (1978). When a search is challenged, the
defendant bears the burden of showing that he or she had a reasonable expectation of privacy in
the place searched. Cutler, 144 Idaho at 274, 159 P.3d at 911. There are at least three different
tests to determine if an unauthorized driver of a rental car has a reasonable expectation of privacy
in that car. Id.
        The first test simply considers the rental agreement. Id. This test has been adopted by the
Fourth, Fifth, and Tenth Circuit Courts. Id. Under this bright line test, if the driver is not
authorized under the terms of the rental agreement to drive the car, the driver lacks standing to
challenge a search of the car. 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).
        The second test is a modified bright line test which focuses on permission from an
authorized driver. Cutler, 144 Idaho at 274, 159 P.3d at 911. This test, which has been adopted
by the Eighth and Ninth Circuits, considers whether the driver challenging the search had
permission from the lessee to operate the rental car. See e.g., United State v. Thomas, 447 F.3d
1191, 1199 (9th Cir. 2006); United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998). If the


                                                 4
unauthorized driver of a rental car has permission from the lessee then he or she has standing to
challenge the search. Thomas, 447 F.3d at 1197. “[T]his approach equates an unauthorized driver
of a rental car with a non-owner driver of a privately owned car.” Id.
       The third test, adopted by the Sixth Circuit and the Court of Appeals, examines the
totality of the circumstances. Cutler, 144 Idaho at 275, 159 P.3d at 912; United States v. Smith,
263 F.3d 571, 586 (6th Cir. 2001). Under this test, courts begin with a presumption that
unauthorized drivers do not have standing to challenge a search. Cutler, 144 Idaho at 275, 159
P.3d at 912; Smith, 263 F.3d at 586. Despite this presumption, this test recognizes that “a rigid
[bright line] test is inappropriate, given that [courts] must determine whether [the driver] had a
legitimate expectation of privacy which was reasonable in light of all surrounding
circumstances.” Smith, 263 F.3d at 586 (citing Rakas, 439 U.S. at 152 (Powell J., concurring)).
When it adopted this test, the Court of Appeals observed: “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.” Cutler, 144 Idaho at 275, 159 P.3d at 912. The
presumption that an unauthorized driver does not have standing to challenge a search can be
overcome if the driver shows a reasonable expectation of privacy based on the totality of
circumstances. Smith, 263 F.3d at 586–87. The Smith court articulated five factors that are
helpful in determining if an unauthorized driver had a reasonable expectation of privacy. Id.
Those factors include: “(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.” Cutler, 144 Idaho at 275, 159 P.3d at 912.
       Mann argues that this Court should adopt a fourth test proposed by Judge Lansing in her
concurring opinion in Cutler. Her proposed test is similar to the modified bright line test adopted
by the Ninth and Eighth Circuits where permission from the lessee or other authorized driver is
dispositive. However, Judge Lansing would recognize “extraordinary circumstances” where “a
driver who did not obtain permission from the lessee or other authorized driver could have a
legitimate expectation of privacy in the vehicle.” Id. at 276, 159 P.3d at 913. Judge Lansing
characterized this as occurring when the totality of the circumstances demonstrate “the possible,


                                                 5
rare circumstance where a legitimate privacy interest [arises] even in the absence of direct
permission from the lessee or other authorized driver.” Id.
         It is important to observe that the district court acted properly by applying the test
adopted by the Court of Appeals in Cutler. “[A]ll tribunals inferior to the Court of Appeals are
obligated to abide by decisions issued by the Court of Appeals.” State v. Guzman, 122 Idaho 981,
986, 842 P.2d 660, 665 (1992).
         However, we think that the better approach is expressed in the bright line test adopted by
the Fourth, Fifth, and Tenth Circuits. Under this test, those drivers authorized by the rental car
company will have a reasonable expectation of privacy in a rental car. Conversely, a driver does
not have a reasonable expectation of privacy in a rental car that the driver is not authorized to
drive.
         This Court may affirm decisions of a district court based on different theories then
applied by the district court. Johnson v. Blaine Cnty., 146 Idaho 916, 921, 146 P.3d 1127, 1132
(2008). Applying the test that we adopt today, we hold that Mann lacked standing to challenge
the search of the rental car. It is undisputed that Mann was not authorized to drive the rental car.
Therefore, we affirm the district court’s denial of Mann’s motion to suppress.
B. The jury instructions fairly and adequately presented the issues and stated the law.
         Mann was charged with possession of paraphernalia under Idaho Code section 37-2734A.
This statute provides that “[i]t is unlawful for any person to use, or to possess with intent to use,
drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject,
ingest, inhale, or otherwise introduce into the human body a controlled substance.” In his closing
argument, Mann’s attorney attempted to argue that the jury must find that he intended to use the
paraphernalia to introduce a controlled substance into his body while in Idaho. Specifically, he
argued that there was:
         No indication that he had used that pipe in the state of Idaho or that he ever
         intended to use that pipe in the state of Idaho. The Oregon laws are different than
         the Idaho laws. Montana laws might be different than the -- they are different
         than the Idaho laws, and the question is is [sic] did he have it intending to use it in
         the state of Idaho. There’s no evidence, none, zero, that he intended to use that
         pipe in the state of Idaho. Yeah, it was in the car. It might have been used in
         Oregon, might have been used in Washington. That’s not what's before you.
         You’re in the state of Idaho. What did he intend to do with it in the state of Idaho?

                                                   6
The prosecutor objected to this argument as an erroneous statement of what the State was
required to prove. The district court sustained the objection.
         Nevertheless, the jury clearly understood defense counsel’s argument. During its
deliberations, the jury asked the trial court whether it mattered if Mann intended to use the
paraphernalia in Idaho or elsewhere. The district court answered this question by stating: “You
are instructed that any possession of paraphernalia must occur in Idaho. If you find defendant
possessed paraphernalia in Idaho, you must consider whether the defendant intended to use the
paraphernalia. It does not matter in which state the defendant formed the intent to use the
paraphernalia.” Mann asserts that this instruction misstated the elements of the offense and
“erroneously signaled to the jury that a determination of the requisite mental state at the time of
the criminal act did not matter.”
         We observe that the district court’s answer to the jury was not responsive to the jury’s
question. Although the jury clearly wished to know whether the State was required to prove that
Mann intended to use the drug paraphernalia in Idaho, the trial court evidently interpreted the
question as whether it mattered where the necessary intent was formed. Notwithstanding the
district court’s failure to answer the jury’s question, we find no error in the instructions that the
district court provided regarding possession of drug paraphernalia.
         This Court reviews jury instructions to determine “whether the instructions as a whole
fairly and adequately presented the issues and stated the law.” Schmechel v. Dillé, 148 Idaho
176, 187, 219 P.3d 1192, 1203 (2009). On appeal, Mann asserts that the jury instructions did not
adequately present the elements of the offense. Specifically, Mann asserts that the jury
instructions did not require the State to prove that, while in Idaho, Mann had the intent to use the
paraphernalia. This is significantly different than the argument advanced before the trial court,
which was that the State was required to prove that Mann intended to use the paraphernalia
within Idaho. 2
         First, we note that the answer that the district court provided, although nonresponsive to
the question before it, was an accurate statement of law. Idaho Code section 18-202 provides:

2
 The position that Mann argued before the district court was clearly wrong. The statute does not require the State to
prove that the defendant intended to use the drug paraphernalia within the State of Idaho to introduce a controlled
substance into a human body. Rather, it requires the State to prove that, while in Idaho, the defendant possessed
paraphernalia with the intent to introduce a controlled substance into a human body, regardless of where that use
might occur.

                                                         7
“The following persons are liable to punishment under the law of this state: (1) All persons who
commit, in whole or in part, any crime within this state. …” Similarly, Idaho Code section 19-
302 provides: “When the commission of a public offense, commenced without the state is
consummated within its boundaries, the defendant is liable to punishment therefor in this
state….”
       More importantly, the instructions that the trial court gave regarding the elements of the
offense correctly stated the State’s burden. “Ordinarily the language employed by the legislature
in defining a crime is deemed to be best suited for that purpose, and error cannot be predicated
on its use in jury instructions.” State v. Zichko, 129 Idaho 259, 264, 923 P.2d 966, 971 (1996).
“An erroneous instruction will not constitute reversible error unless the instructions as a whole
misled the jury or prejudiced a party.” State v. Draper, 151 Idaho 576, 588, 261 P.3d 853, 865
(2011). “The [Idaho Criminal Jury Instructions] are presumptively correct.” McKay v. State, 148
Idaho 567, 571 n.2, 225 P.3d 700, 704 n.2 (2010). “Trial courts should follow the [Idaho
Criminal Jury Instructions] as closely as possible to avoid creating unnecessary grounds for
appeal.” Id. Idaho Criminal Jury Instruction 408 relates to possession of drug paraphernalia.
I.C.J.I. 408. Jury Instruction 12h in this case was based on Idaho Criminal Jury Instruction 408.
       Jury Instruction 12h required the State to prove beyond a reasonable doubt:
       (1) On or about 8th day of February, 2015;
       (2) in the state of Idaho;
       (3) the defendant JESSEE EUGENE MANN possessed a bong or pipe, intending;
       (4) to use it to introduce into the human body a controlled substance.
This instruction required the State to prove not only that Mann possessed paraphernalia while in
the state of Idaho but also that he intended to use that paraphernalia to introduce a controlled
substance into the body. This instruction is an accurate statement of the law
       Jury instructions are to be considered as a whole. Draper, 151 Idaho at 588, 261 P.3d at
865. As stated above, an erroneous instruction will not be considered reversible error unless the
instructions as a whole misled the jury or prejudiced a party. Id. Mann argues that the answer the
court provided relieved the State of its burden of proving intent within the jurisdiction. We
disagree. Jury Instruction 12h properly stated the State’s burden. The court’s answer to the jury’s
question simply instructed the jury that it didn’t matter where that intent was initially formed.


                                                8
This instruction is consistent with Idaho Code sections 18-202 and 19-301. Thus, we find
Mann’s claim of error to be without merit.
                                     IV. CONCLUSION
       We affirm the judgments of the district court.

       Chief Justice BURDICK and Justices EISMANN, JONES and BRODY, CONCUR.




                                                9
