STATEMENT OF THE CASE
On June 3, 2006, Paola Cruz-Sanchez, while pulled to the side of the road speaking on her cell phone, was approached by a police officer and, after a brief encounter during which the officer became suspicious of Cruz-Sanchez’s nervousness and Mexican accent, was directed to vacate the automobile she had been driving. (J.A. 8–10, ¶¶ 6–14.) Officer Gomez, the detaining officer, proceeded to search the vehicle in violation of the Fourth Amendment. (J.A. 9–10, 18 ¶¶ 14–16.)
Twelve years prior to this search and seizure, Cruz-Sanchez migrated to America from Mexico as a seasonal migrant worker. (J.A. 8, ¶ 2.) Following the expiration of her work visa, Cruz-Sanchez continued to reside and work in Ames and its surrounding states. (J.A. 8, ¶ 2.) Although in 2002, Cruz-Sanchez briefly returned to Mexico following her deportation for a drug crime (J.A. 8, ¶ 3.), she returned to this country in 2004 and has since resided as an undocumented alien with her partner, Luis Costa-Varga, and their daughter, both of whom are American citizens. (J.A. 8, ¶ 5.) She is presently employed as a housekeeper in a private residence. (J.A. 8, ¶ 5.)
Five days prior to Officer Gomez’s unconstitutional search and seizure, Costa-Varga had rented a car from Zippy Rent-a-Car. (J.A. 10, ¶ 18.) Although Cruz-Sanchez had not received explicit permission from her partner to drive this car on June 3 (J.A. 19), and the rental agreement specified that only Costa-Varga had contractual authorization to drive the vehicle (J.A. 21–23), Cruz-Sanchez obtained the keys to the car from the kitchen table of her and Costa-Varga’s home. (J.A. 9, ¶ 8; 19.) Costa-Varga testified that he had rented similar cars on previous occasions and had given Cruz-Sanchez permission to drive them. (J.A. 19.)
While driving on Route 55 in Ames City, Cruz-Sanchez pulled to the side of the road and was approached by Officer Gomez. (J.A. 8, ¶ 7.) Despite her confirmation that she did not require assistance, Gomez became “a little suspicious” of Cruz-Sanchez and asked for her license and registration. (J.A. 8–9.) Cruz-Sanchez presented Gomez with a valid State of Ames driver’s license bearing the name “Laura Fonseca,” and a copy of the Zippy Rent-a-Car agreement. (J.A. 9, ¶ 9.) Following a check of the license that revealed no outstanding warrants, Officer Gomez noticed that the address was near his home in Ames City and asked Cruz-Sanchez about particular local businesses. (J.A. 9, ¶ 11.) When she was unfamiliar with certain establishments, Gomez’s suspicion, based in part on Cruz-Sanchez’s appearance, nervousness, and Mexican accent, caused him to ask her to exit the vehicle so that he could conduct a search. (J.A. 9–10, ¶¶ 12, 14.)
In the course of this concededly illegal seizure and search (J.A. 18), Officer Gomez searched the glove compartment and discovered a plastic bag containing methamphetamine and a wallet containing Cruz-Sanchez’s expired Mexican license (J.A. 10, ¶ 15). Officer Gomez then seized the license and questioned Cruz-Sanchez, securing an admission regarding her true identity. (J.A. 10, ¶ 16.) She was arrested for possession with intent to distribute a controlled substance and false representation of identity to a peace officer. (J.A. 10, ¶ 17.)
Gomez brought Cruz-Sanchez to the Ames City Police Department, where Ames police officers contacted Immigration and Customs Enforcement (ICE) agents regarding her arrest. (J.A. 19, ¶ 19.) ICE agents arrived at the police station to question Cruz-Sanchez after discovering her previous felony conviction and deportation. (J.A. 19, ¶ 19.) These agents asked Cruz-Sanchez about her identity, nationality, and other biographical information, and then directed the police to take her fingerprints and photograph before transporting her to the city jail. (J.A. 19, ¶ 19.)
Cruz-Sanchez was charged in United States District Court for the District of Ames with violating 21 U.S.C. § 841(a)(1) and (b)(1)(B)(viii) for possession with intent to distribute a controlled substance, and 8 U.S.C. § 1326(a) and (b)(1) for reentering the United States without permission after deportation. (J.A. 10, ¶ 17).
Following an evidentiary hearing (J.A. 7), the Ames District Court found that the search and seizure were illegal because Officer Gomez did not have a reasonable suspicion. (J.A. 12) Further, the court recognized Cruz-Sanchez’s possessory interest in the rental car that she was driving and acknowledged her reasonable expectation of privacy in the vehicle. (J.A. 13–14). The court granted Cruz-Sanchez’s Motion to Suppress, holding that because the search and seizure were illegal and Cruz-Sanchez had a reasonable expectation of privacy in the rental car, evidence of her identity had to be suppressed as fruit of the poisonous tree. (J.A. 14–16.)
SUMMARY OF THE ARGUMENT
Appellee Paola Cruz-Sanchez asks this Court to recognize her legitimate expectation of privacy in a rental car that she was driving with the implied permission of the renter and to suppress all evidence obtained as a result of a concededly unconstitutional search of that car.
Reasonable Expectation of Privacy
This Court should recognize Cruz-Sanchez’s reasonable expectation of privacy in the rental car she was permitted to drive and should decline to apply a bright-line test based on explicit authorization and technical licensure status. A bright-line rule that makes an individual’s ability to challenge a constitutionally proscribed search depend on private contractual obligations is inconsistent with longstanding Supreme Court precedent directing courts to look beyond such matters to broader societal understandings. Such a bright-line rule is particularly inappropriate considering its disconnect from contemporary social norms, which, as illustrated by state-level trends in insurance regulation, regard permittees of authorized drivers as legitimate drivers of rental cars.
Instead, this Court should look to the feature that most clearly demarcates socially acceptable use of a rental car from illegitimate and unlawful conduct: permission. Just as the borrower of an automobile possesses a reasonable expectation of privacy, notwithstanding her lack of ownership interest in the car, so too does the permittee of an authorized driver of a rental car.
Even if this Court factors permission into a broader totality-of-the-circumstances test, Cruz-Sanchez has still established that she possessed a reasonable expectation of privacy. Several factors — notably, her ability to produce the rental agreement to a police officer, permission to drive the vehicle, intimate relationship with the renter, and possession of a driver’s license — demonstrate that Cruz-Sanchez maintained a sufficiently close relationship to both the renter and the vehicle to prevail under the totality-of-the-circumstances test.
Identity-Related Evidence
This Court should hold that there is no exception to the Fourth Amendment exclusionary rule for identity-related evidence. The Supreme Court’s statement in Lopez-Mendoza that the “‘body’ or identity of a defendant... is never itself suppressible as the fruit of an unlawful arrest” referred only to the longstanding rule that a court’s jurisdiction over a defendant does not depend on whether lawful means were employed to bring the defendant before the court. Placing the Court’s statement in context makes it evident that the Court did not intend to create a broad exception to the exclusionary rule.
Nor should this Court create such an exception. The Supreme Court has already interpreted the Fourth Amendment to permit police officers to take reasonable steps to ascertain a suspect’s identity. Moreover, an exception to the exclusionary rule for identity-related evidence would be inconsistent with the rule’s purpose of deterring officer misconduct. The costs and benefits of suppression are the same for identity-related evidence as for all other evidence to which the exclusionary rule traditionally applies.
Finally, the fingerprint and photograph evidence taken from Cruz-Sanchez following her illegal arrest are not admissible under a “routine booking” exception to the exclusionary rule. To fall within such an exception, the evidence would have to have been obtained legally; however, this Court has directed the parties through its Procedural Order to address only the admissibility of illegally obtained identity-related evidence, and therefore the Government is barred from raising this issue on interlocutory appeal. Further, the Government’s claim lacks merit, as the evidence in question was obtained not through routine booking procedures, but rather as part of an active criminal investigation of Cruz-Sanchez by federal immigration agents.
ARGUMENT
I. THIS COURT SHOULD AFFIRM THE DISTRICT COURT’S HOLDING THAT CRUZ-SANCHEZ POSSESSED A REASONABLE EXPECTATION OF PRIVACY IN THE RENTAL CAR.
The District Court was correct in concluding that Cruz-Sanchez had a reasonable expectation of privacy in the rental car. Individuals are entitled to challenge a Fourth Amendment violation if they can assert “a subjective expectation of privacy... that society accepts as objectively reasonable.” California v. Greenwood, 486 U.S. 35, 39 (1988). Applying this standard, this Court should reject a bright-line rule dictating that a driver whose name does not appear on the rental agreement and who possesses a valid but expired license can never have a reasonable expectation of privacy in a rental car. Such a rule misconstrues Fourth Amendment jurisprudence and fails to reflect societal norms. Instead, this Court should adopt the permission test endorsed by the Eighth and Ninth Circuits, as it encapsulates society’s expectations regarding the use of rental vehicles and thus adheres to the Supreme Court’s directive in Rakas v. Illinois, 439 U.S. 128 (1978), that a reasonable expectation of privacy may be found in “understandings that are recognized and permitted by society.” Id. at 143 n.12. If this Court does not accept the permission test, it should adopt the Sixth Circuit’s totality-of-the-circumstances test, which also is able to reflect society’s acceptance of the borrowing of rental cars as legitimate. Under either the permission or the totality test, the fact that Cruz-Sanchez was driving with the permission of the renter and possessed other indicia of ownership confirm the existence of her reasonable expectation of privacy in the car.
A. The Bright-Line Rule Advocated by the Government Neither Comports with Fourth Amendment Jurisprudence Nor Reflects Societal Expectations and Is Therefore Inappropriate.
This Court should reject a bright-line rule that would prevent permittees of authorized drivers of rental cars, or drivers with expired licenses, from ever possessing a reasonable expectation of privacy in a rental car. Though bright-line rules are appropriate when “little would be lost” by their use, Rakas, 439 U.S. at 147, much would be lost by adopting a rule, such as that proposed by the Government, that utterly fails to track societal expectations. See id. at 144 (rejecting a bright-line rule as “lack[ing] in fidelity to the history and purposes of the Fourth Amendment”).
1. Lack of Authorization in a Rental Agreement Does Not Prevent Permittees of Authorized Drivers from Possessing a Reasonable Expectation of Privacy.
Mere lack of formal authorization from the rental company cannot deprive an individual of a reasonable expectation of privacy. A bright-line rule turning on contractual authorization impermissibly emphasizes private common law rights at the expense of societal expectations, which are the touchstone of the reasonable expectation of privacy inquiry. See Rakas, 439 U.S. at 143 n.12. Socially accepted norms indicate that permittees of authorized renters of rental cars are not regarded as wrongful drivers and thus may possess reasonable expectations of privacy.
a. The Bright-Line Rule, By Predicating Reasonable Expectations of Privacy on Contractual Obligations, Is Inconsistent with Supreme Court Precedent.
A bright-line rule categorically refusing to recognize that a rental car driver lacking an explicit and direct relationship with the rental agency can possess a reasonable expectation of privacy contravenes the Supreme Court’s directive not to conflate private law relationships with Fourth Amendment rights. The bright-line approach reverts back to a long-rejected, property-focused approach to the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 353 (1967) (rejecting the premise “that property interests control the right of the Government to search and seize”). Thus, the reasonable expectation of privacy inquiry, while not totally divorced from questions of private law rights, is not limited to such considerations. See Rakas, 439 U.S. at 143 n.12.
Though Rakas rejected the argument that “mere[] passengers” possess a reasonable expectation of privacy in an automobile, 439 U.S. at 148–49, it did not resurrect the pre-Katz framework; rather, it held that reasonable expectations of privacy could be identified “either by reference to concepts of real or personal property law or [by reference] to understandings that are recognized and permitted by society.” Id. at 143 n.12 (emphases added). Thus, while “lawful possess[ion] or control[]” gives rise to a reasonable expectation of privacy, id., that concept “need not be defined narrowly.” United States v. Thomas, 447 F.3d 1191, 1197 (9th Cir. 2006); see also Minnesota v. Olson, 495 U.S. 91, 98 (1990) (holding that an overnight guest possessed a reasonable expectation of privacy in the host’s home). Indeed, the Supreme Court recognizes that “social expectations,” in addition to common law rights, guide the analysis. Minnesota v. Carter, 525 U.S. 83, 101–02 (1998).
The test for finding a reasonable expectation of privacy cannot, therefore, be found within the four corners of a rental agreement because such an agreement does not necessarily reflect “understandings that are recognized and permitted by society,” Rakas, 439 U.S. at 143 n.12; at most, it represents private understandings between particular contracting parties. Moreover, as Justice Holmes famously observed, a contractual obligation is “a prediction that you must pay damages if you do not keep it — and nothing else.” Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 462 (1897). Given that contracts are purely private agreements that give rise to economic, not social or moral, obligations, the Government’s assertion that the act of driving a rental car without express authorization is “wrongful” simply “because it violate[s] the owner’s contractual rights” (Appellant’s Br. 10) cannot succeed.
In rejecting the rule the Government proposes, other circuits have recognized that such a bright-line test would contravene post-Katz Fourth Amendment law. See, e.g., United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001) (“Such a rigid test is inappropriate, given that we must determine whether Smith had a legitimate expectation of privacy which was reasonable.”). The Ninth Circuit expressly relied on the Supreme Court’s rejection of the “arcane distinctions” of private property law in refusing to “base constitutional standing entirely on a rental agreement.” Thomas, 447 F.3d at 1198–99.