United States of America v. Kenyon R. Walton.   No. 14-1177.

 On August 29, 2012, Walton was a passenger in a rented Chevrolet Suburban driven by his companion, Darrallyn Smoot, when the pair was pulled over on an interstate highway for a traffic stop by a state trooper in Madison County, Illinois. According to the trooper, Walton and Smoot were nervous, their breath heavy and their hands shaking, and they gave a confusing and implausible description of their travel plans.

In particular, they apparently failed to pack any luggage for their supposed trip. Having become suspicious of the two, the trooper decided to extend the stop for approximately twenty minutes so that a police canine could smell around the car. The dog allegedly alerted while sniffing around the Suburban, and troopers then searched the vehicle and found seven kilograms of cocaine hidden in the back.

Walton was indicted in the Southern District of Illinois for possession with intent to distribute cocaine. He filed a motion to suppress the narcotics found in the Suburban. In opposition, the government argued that Walton lacked standing to challenge the search and seizure of the rental car in that he lacked a reasonable expectation of privacy in the Suburban.

In United States v. Walker, 237 F.3d 849, we held that "a person listed on a rental agreement as an authorized driver has a protected Fourth Amendment interest in the vehicle and may challenge a search of the rental vehicle." Indeed, "[a] person listed as an approved driver on a rental agreement has an objective expectation of privacy in the vehicle due to his possessory and property interest in the vehicle." Id. That is a very clear statement, presented without qualification, in support of Walton's position.

The government, by contrast, wants to resolve this appeal under an expansive reading of United States v. Haywood, 324 F.3d 514 (7th Cir. 2003). In that case, the defendant was not an authorized driver of the rental car that was searched, and he also drove the car with a revoked license. We readily concluded that Haywood lacked standing to challenge a search of the rented car:

Haywood was not simply an unauthorized driver, he was also an unlicensed one. Haywood should not have been driving any car, much less a rental car that Enterprise never would have given him permission to drive. As a result, Haywood's expectation of privacy was not reasonable. 324 F.3d at 516.

The question of whether an unauthorized, properly licensed driver of a rental car enjoys standing remains undecided, and we also leave that issue for another day.

Finally, this case presents the new, and hopefully rare, instance in which a defendant somehow manages to become the authorized driver of a rental car without having a valid license. We present this information in chart form for convenience.

                              Licensed         Unlicensed

Authorized           Standing        Walton's Case

Unauthorized       Undecided      No standing

 Some of our sister circuits have touched upon the specific license issue in this case. The Eighth Circuit recognized the standing of a defendant who drove a rental car with a suspended license. See United States v. Best, 135 F.3d 1223, 1225 (8th Cir. 1998) (an unauthorized driver of a rental car with an invalid license would have standing if he had the authorized driver's permission to use the car). So has the Ninth Circuit. United States v. Thomas, 447 F.3d 1191, 1195-96 (9th Cir. 2006) (same). But both these decisions also grant standing to a defendant not named on the rental agreement if she has permission from the authorized driver, a situation that we have not decided.

On the other hand, courts that deny standing to unauthorized drivers typically do so without considering whether the driver has a valid license. See United States v. Wellons, 32 F.3d 117 (4th Cir. 1994); United States v. Roper, 918 F.2d 885 (10th Cir. 1990); United States v. McCulley, 673 F.2d 346 (11th Cir. 1982).

The Sixth Circuit is unique in considering possession of a valid license as one factor in the standing analysis. United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001). In Smith the court granted standing where the driver was unauthorized, but had a valid license. This case involves a driver with no valid license, but who was authorized.

In short, decisions of our fellow circuits are conflicting and of limited help in this very peculiar case.

The government argued before the district court that Walton's suppression motion was legally and factually insufficient on its face. And on appeal, the government stated in its brief that the Illinois state trooper who stopped Walton did in fact know that he had breached his rental agreement by driving with a suspended license. We also do not know whether there was some connection between the Kansas patrolman's traffic ticket and the Illinois state trooper's decision to stop the Suburban a day later.

These points go to the reasonableness of the search and seizure, and have not yet been adequately presented in the record. The district court should have the first chance to resolve them, along with any other argument pertaining to the reasonableness of the stop and subsequent search.

The order denying Walton's motion to suppress is REVERSED, and we REMAND for further proceedings consistent with this opinion.

For more about Chicago Federal Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com  or call 312-913-1111                   

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