4th Circuit Case Study

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THIS COURT SHOULD REJECT THE FOURTEENTH CIRCUIT’S TOTALITY OF THE CIRCUMSTANCES APPROACH AND INSTEAD APPLY A BRIGHT LINE STANDARD OF REVIEW TO DETERMINE WHETHER AN AUTHORIZED DRIVER OF A RENTAL CAR HAS STANDING TO CHALLENGE THE LEGALITY OF THE SEARCH

The Fourteenth Circuit Court of Appeals improperly applied the totality of the circumstances approach in determining that Respondent Larry Nightingale has standing to assert a Fourth Amendment challenge to the search of the rental vehicle he was driving at the time of the traffic stop checkpoint. The Fourth Amendment requires that the one who is making the challenge of the legality of a search to prove that he was personally the victim of an invasion of privacy. Rakas v Illinois, 439 U.S. 128,
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United States v. Thomas, 447 F.3d 1191, 1196 (9th Cir. 2006). First, the Third, Fourth, Fifth and Tenth Circuits have adopted a comprehensive bright-line rule that a driver who is not authorized by the rental agreement to drive has no reasonable expectation of privacy and therefore no standing to challenge a search of the vehicle. See United States v. Kennedy, 638 F.3d 159, 165 (3d Cir. 2011); United States v. Wellons, 32 F.3d 117, 119 (4th Cir. 1994); United States v. Seeley, 331 F.3d 471, 472 (5th Cir. 2003); United States v. Roper, 918 F.2d 885, 887–88 (10th Cir. 1990). Alternatively, the Eighth and Ninth Circuits have adopted a rule based on permission and modify the bright-line rule where an unauthorized driver who received permission to use a rental car has joint authority over the car and may challenge a search under the Fourth Amendment. See United States v. Thomas, 447 F.3d 1191, 1198–99 (9th Cir. 2006); United States v. Best, 135 F.3d 1223 (8th Cir. 1998); United States v. Muhammed, 58 F.3d 353, 355 (8th Cir. 1995). Finally, the Sixth Circuit has applied a multiple factor totality of the circumstances test to determine whether an unauthorized driver has standing. United States v. Smith, 263 F.3d 571, 586 (6th Cir.

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