US v. Yang, No. 18-10341 (5-4-20)(Piersol w/Lee; Bea concurs). This is an interesting 4th Amendment issue involving rental cars and data searches. The 9th affirms the denial of defendant’s suppression motion challenging how he was found by Postal Inspectors. When it comes to stolen mail, neither rain, nor snow, nor rental cars driven past the rental period stops an inspector.

A person driving a Yukon was on surveillance video “fishing” for mail. The person could not be identified, but the license plate could. The postal inspector used Vigilant Solutions to run the license plate. This company has a private database of billions of license plates, captured through cameras mounted on tow trucks, repo company vehicles, and law enforcement vehicles. The cameras capture the image of the license plates through public everyday contact.  Law enforcement has access through subscription to the database.

The postal inspector used a search to discover whose car it was, and where he might be. But the photo that captured the license plate was taken six days after the rented Yukon was supposed to be returned.

The 9th majority sidestepped Carpenter by focusing on standing. The opinion acknowledges that sometimes, if a renter or lessee overstays a term (as in a hotel), or fails to return a car in time, they may still expect privacy because of “forgiveness” or grace periods, or customs. Here, though, the defendant presented no evidence that the rental company had such a leeway or grace period. While the company’s rental agreement did say that an over extension would cause additional charges, it required notification. The company tried to digitally disable the vehicle after it was not returned but the disabling device had been disabled by a third party. Thus, because the rental car was beyond its term, the defendant had no expectation of privacy and, most important, no standing.  It is a narrow holding.

Bea, concurring, finds that the defendant has standing. He concurs in the judgment because there was no expectation of privacy. The photo was snapped on the open road; it was not in a private residence; it did not track the physical movements. It was a snapshot.

Hard fought issue, the core of which is preserved for another day, by Cristen Thayer, AFPD, Nevada (Las Vegas).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/04/18-10341.pdf