                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-1348
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

           Ryan Christopher Lumpkins, also known as Dale E. Hubbard

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                              Submitted: June 13, 2012
                               Filed: August 6, 2012
                                  ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

GRUENDER, Circuit Judge.

       Ryan Lumpkins entered a conditional plea of guilty to possession with intent
to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and
possession of a firearm in furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c). He now appeals the denial by the district court1 of his motion to
suppress evidence obtained from a warrantless search of a rental vehicle, as well as
the district court’s determination that he is a career offender for purposes of the
United States Sentencing Guidelines. For the reasons discussed below, we affirm.

       On the afternoon of February 3, 2011, two officers of the Kansas City Police
Department patrolling in a car observed a 2010 Ford Taurus with heavily tinted
windows pass by. Because the officers believed the tint was sufficiently dark to
violate a Kansas City ordinance, they followed the vehicle to investigate. The vehicle
pulled into the driveway of a nearby residence, and the officers pulled in behind it and
activated the emergency lights of the squad car. The driver, Lumpkins, exited the
vehicle, looked at the officers, and started walking away at a casual pace. One of the
officers made eye contact with Lumpkins and asked him to “come here,” and
Lumpkins refused, replying that he was on private property. The officers placed him
in handcuffs out of concern for officer safety. Because the side and rear windows of
the vehicle were effectively blacked out, one officer looked through the front
windshield of the vehicle “just to verify that we didn’t have a threat in the car.”

       While verifying that the vehicle had no other occupants, the officer noticed a
plastic bag holding a green leafy substance in the center console that appeared
consistent with how the officer had “seen marijuana bags packaged in the past.” He
also noticed what appeared to be a small marijuana blunt in the cup holder-ashtray
area. The officers attempted to seize the contraband but discovered that the doors of
the vehicle were locked and, in addition, that the keys to the vehicle were lying on the
driver’s seat, locked inside.




      1
       The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, adopting the report and recommendation of the Honorable Sarah
W. Hays, United States Magistrate Judge for the Western District of Missouri.

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        The officers soon learned from a status check on the vehicle’s license plates
that it was registered to Budget Rent-a-Car. It had been rented by Latisha Hughes.
Lumpkins was not listed as an authorized driver. Hughes was present at the residence
and came outside to talk to the officers, but she did not have a spare key and refused
to give consent for the officers to enter the vehicle. The officers contacted Budget
Rent-a-Car and explained the situation to Michelle Konecny, a local office manager.
Konecny informed the officers that the vehicle was overdue for return and that
Budget had been demanding its return from Hughes for several days. Konecny
requested that the officers wait with the vehicle until she arrived to take custody of
it.

       When Konecny arrived, she showed the officers proof of ownership of the
vehicle and unlocked it remotely with a spare set of keys. She then consented to a
search of the vehicle. A drug dog which had been brought to the scene immediately
alerted to the center console, and the previously observed marijuana was removed.
The drug dog alerted again to the center console, however, and the officers
discovered crack cocaine, powder cocaine, ecstasy pills, and more marijuana within
the console. They also discovered a Herstal 5.7 x 28 handgun under the driver’s seat.
The handgun was loaded with twenty rounds of ammunition capable of penetrating
bullet-proof vests.

       After his indictment, Lumpkins moved to suppress the drugs and firearm
recovered from the vehicle, arguing that the search was not valid under any exception
to the Fourth Amendment. The district court denied the motion on each of several
alternative grounds, including that Konecny validly consented to the search.
Lumpkins subsequently pled guilty pursuant to a written plea agreement, conditioned
on his right to pursue this appeal.

      When reviewing the denial of a motion to suppress, we review “the district
court’s findings of fact for clear error and its determinations of probable cause and

                                         -3-
reasonable suspicion de novo.” United States v. Robinson, 664 F.3d 701, 703 (8th
Cir. 2011).

      Lumpkins contends that the warrantless search of the vehicle was not justified
under any exceptions to the Fourth Amendment warrant requirement.2 We disagree
and hold that the search was valid pursuant to the consent obtained from Konecny.
“[A] vehicle search pursuant to voluntary consent from a third party with authority
over the vehicle does not violate the Fourth Amendment.” United States v. Chavez
Loya, 528 F.3d 546, 554 (8th Cir. 2008).

        The rental contract for the vehicle stated, “If Renter fails to return the vehicle
. . . within 24 hours following . . . oral demand . . . Renter will be deemed to be in
unlawful possession of the vehicle.” It is undisputed that Budget personnel contacted
Hughes and made an oral demand for the return of the vehicle on January 31; thus,
by February 3, the day of the search, Hughes’s possession was in violation of the
agreement. The rental agreement further provided that “[t]he vehicle may be
repossessed . . . without notice if it . . . is used in violation of law or of this
agreement.” Therefore, when Konecny arrived as a representative of Budget, she had
the authority to take immediate custody of the vehicle and to give valid consent to a
search of the vehicle.




      2
        The parties dispute whether Lumpkins had a reasonable expectation of privacy
in the vehicle so as to confer standing to challenge the search. While Lumpkins, who
was not listed as an authorized driver on the rental agreement, had permission from
Hughes to use the vehicle, cf. United States v. Best, 135 F.3d 1223, 1225 (8th Cir.
1998); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995) (per curiam),
by February 3 Hughes’s own authorization arguably had been revoked. For purposes
of our analysis, we assume without deciding that Lumpkins had standing to challenge
the search.

                                           -4-
       Lumpkins, relying on Georgia v. Randolph, 547 U.S. 103 (2006), argues that
Konecny’s consent to the search was invalid in the face of contemporaneous refusals
of consent from Hughes and Lumpkins. See id. at 122-23 (holding that “a physically
present inhabitant’s express refusal of consent to a police search is dispositive as to
him, regardless of the consent of a fellow occupant”). It is not clear that Randolph,
which involved a search of a residence, applies in the context of a vehicle search. See
id. at 115 (relying on the “centuries-old principle of respect for the privacy of the
home” and noting that “it is beyond dispute that the home is entitled to special
protection as the center of the private lives of our people” (quotations omitted)); cf.
Chavez Loya, 528 F.3d at 555 (citing Rakas v. Illinois, 439 U.S. 128, 148 (1978)
(“We have on numerous occasions pointed out that cars are not to be treated
identically with houses or [a]partments for Fourth Amendment purposes.”)). In any
event, neither Lumpkins nor Hughes would qualify as a “fellow occupant,” Randolph,
547 U.S. at 123, of the vehicle for purposes of Randolph after Konecny arrived to
repossess it. There is no “commonly held understanding” in society that a driver of
an overdue rental car, on notice that the rental car company is entitled to repossess its
vehicle at any time, nevertheless may exercise authority over the vehicle contrary to
the repossessor’s. See id. at 111.

      Because consent for the search was validly obtained, the warrantless search of
the vehicle did not violate the Fourth Amendment. See Chavez Loya, 528 F.3d at
554.3

       Additionally, while Lumpkins does not dispute that the traffic stop to
investigate his illegally tinted windows was valid, he argues that his nearly immediate
detention and placement in handcuffs constituted an arrest without probable cause.
The district court rejected this argument, finding that Lumpkins was not under arrest


      3
       Because we find the warrantless search valid on the basis of consent, we need
not address the alternative theories advanced by the Government to justify the search.

                                          -5-
at the time of his initial detention and that the detention was “reasonably related in
scope to the circumstances which justified the interference in the first place.” Terry
v. Ohio, 392 U.S. 1, 20 (1968). However, we need not decide the question of whether
Lumpkins’s initial detention violated the Fourth Amendment. Even assuming that it
did, we have held in similar circumstances that, where consent to search a vehicle is
validly obtained, a preceding illegal seizure and detention of another vehicle occupant
is “independent and separate from the discovery of” contraband in the vehicle.
United States v. Green, 275 F.3d 694, 700 (8th Cir. 2001). That rule applies here
because Konecny, like the consenting vehicle occupant in Green, gave authoritative
consent to the search of the vehicle. Thus, “the discovery of drugs [and a firearm] in
the car is not a ‘fruit’ of [Lumpkins’s] illegal detention” and suppression of that
evidence is not warranted. See id. at 699.

       Finally, Lumpkins challenges the application of the career-offender provisions
of U.S.S.G. § 4B1.1 to the calculation of his advisory sentencing guidelines range.
However, Lumpkins’s plea agreement “expressly waives his right to appeal his
sentence . . . on any ground except claims of (1) ineffective assistance of counsel; (2)
prosecutorial misconduct; or (3) an illegal sentence.” Moreover, the plea agreement
specifies that “a misapplication of the Sentencing Guidelines” is not an “illegal
sentence” for purposes of the waiver. We can identify nothing in the record to
suggest that this waiver was unknowing, involuntary, or would result in a miscarriage
of justice. See United States v. Birbragher, 603 F.3d 478, 491 (8th Cir. 2010).
Accordingly, we enforce Lumpkins’s waiver of the right to appeal his sentence, and
we decline to reach the merits of his § 4B1.1 claim. See id. at 492.

      For the foregoing reasons, we affirm the denial of the motion to suppress and
the sentence pronounced by the district court.
                       _____________________________




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