Sunday, May 21, 2006

Case o' The Week: Standing in rental cars OK by O'Scannlain

Diarmuid (left) does us right by adopting a Fourth Amendment standing rule that still gives some hope for challenges in rental car cases. United States v. Thomas, __ F.3d __, 06 Cal. Daily Op. Serv. 5427 (9th Cir. May 18, 2006), opinion available here.

Players: Good new rule penned by Judge Diarmuid F. O’Scannlain (or rather, better than the bad rule previously adopted by other circuits).

Facts: The DEA gets wind of a crack smuggling scheme that relies on rental cars. 06 Cal. Daily Op. Serv. 5427, 5431-33. The feds put a tracking device on a rental car ultimately used by defendant Thomas. Id. Although he drove the car, Thomas didn’t rent it, nor was he an “authorized driver” on the rental contract. Id. at 5433. Thomas is stopped; crack is recovered. The defense challenges the use of the tracking device; the district court denies the motion. Id. at 5434.

Issue(s): “This case requires us to consider whether a driver of a rental car who is not listed on the rental agreement has standing to challenge a police search of the vehicle.” Id. at 5431.

Held:.“[A]n unauthorized driver who received permission to use a rental car and has joint authority over the car may challenge the search to the same extent as the authorized renter. This approach is in accord with precedent holding that indicia of ownership – including the right to exclude others – coupled with possession and the rightful owner, are sufficient grounds upon which to find standing.” Id. at 5440.

Of Note: The Ninth chooses between a three-way Circuit split in adopting this new Fourth Amendment standing rule. The Fourth, Fifth, and Tenth Circuits have bright-line rules denying standing to unauthorized drivers of rental cars. Id. at 5436-37. The Eight Circuit has a modification of this rule, and “generally disallows standing unless the unauthorized driver can show he or she had the permission of the authorized driver.” Id. at 5437. The Sixth Circuit looks at the “totality of circumstances,” and lists a number of factors for guidance. Id. The Ninth sides with the Eighth in adopting this new “permission” rule of standing.

How to Use: Thomas is now doing 188 months - well over fifteen years. Is he happy with this Ninth Circuit opinion? Not so much. While Judge O’Scannlain adopts a good new rule, he then upholds the denial of the suppression motion because Thomas had failed to show that he had the true renter’s permission to drive the car. Id. at 5441. This decision is thus is cold comfort, particularly when i) this new rule in the Ninth didn’t exist when Thomas’s suppression motion was filed, and ii) Thomas did everything he could to withdraw his plea and (presumably) show standing through the renter’s permission. The lesson is, don’t forget to show standing in your Fourth Amendment motions. To skip that showing and to hope the government doesn’t notice is to risk Thomas’s pyrrhic victory.

For Further Reading: Judge Diarmuid F. O’Scannlain was appointed by Reagan in 1986; his chambers are in Portland, Oregon. See article here. He is the first-generation Irish-American son of immigrants from Sligo and Derry. Id. A conservative member of the Ninth, see Federalist Society Convention speakers, he is also a major Supreme Court feeder for clerks. Judge O’Scannlain is a very vocal critic of “judicial activism.” See article here.
For a very candid – and funny – chronicle of the Ninth Circuit feud between Right and Left (O’Scannlain and Reinhardt) take a look at this blog entry. See blog here.
Like several other conservative judges, O’Scannlain supports proposals to split the Ninth Circuit. See article here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



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