United States v. Bettis

946 F.3d 1024

UNITED STATES of America Plaintiff - Appellee

v.CJ BETTIS Defendant - Appellant

No. 18-2407

United States Court of Appeals, Eighth Circuit.

Submitted: March 15, 2019

Filed: January 10, 2020

Rehearing and Rehearing En Banc Denied April 8, 2020

Jeffrey S. Paulsen, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Minnesota, Minneapolis, MN, for Plaintiff-Appellee.

CJ Bettis, pro se.

Frederick J. Goetz, GOETZ & ECKLAND, Minneapolis, MN, for Defendant-Appellant.

Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

CJ Bettis challenges the denial of his motion to suppress nearly 200 grams of heroin found in a rental car he was driving. Because law enforcement obtained additional facts during the traffic stop that "established beyond question the existence of probable cause," United States v. Olivera-Mendez , 484 F.3d 505, 513 (8th Cir. 2007), we affirm the district court.¹

I.

In the summer of 2016, informants tipped off police that Bettis was selling heroin in the Minneapolis area. Bettis, who has two prior convictions involving trafficking heroin from Chicago, is married to Natasha Daniels. In a previous investigation, police had searched his home and found more than 80 grams of heroin and a fake ID. When law enforcement learned that Bettis was in Chicago and likely driving a Toyota rented by Daniels, they set up surveillance on his return route.

Shortly before 5 p.m. on November 8, 2016, Minnesota State Trooper Derrick Hagen stopped the Toyota for speeding on I-94. When asked for identification, the driver presented an Illinois photo ID with the name "Vernon Silas." Trooper Hagen recognized him as Bettis. A passport identified the passenger as Dalia Taha. Bettis did not have a valid license. The rental contract showed that Daniels, who was not in the car, was the only authorized driver.

Trooper Hagen smelled a strong odor of raw marijuana coming from the vehicle. He separated Bettis and Taha and questioned both. Bettis claimed that he had traveled to Chicago with his son and attended a cousin’s birthday party with Taha. When the trooper said that he smelled marijuana, Bettis admitted that he and Taha had smoked in the car. Taha told a different story. She claimed that she had been at a funeral with Bettis, but she could not remember any details, including the decedent’s name. She admitted that she had smoked marijuana but not, she said, in the rental car.

A second Minnesota State Trooper arrived and secured Taha in his patrol car. Trooper Hagen then walked his drug-detection canine around the rental car. The dog alerted to the driver’s side of the vehicle, and then indicated that the center console had drugs. Law enforcement found marijuana remnants in the console.

Officers conducted a roadside search using flashlights but did not find additional drugs. Based everything they knew and because drug dealers sometimes use marijuana to mask the odor of other drugs, the officers suspected additional drugs were hidden in the Toyota. Shortly after 6 p.m. they towed the vehicle to a police garage for a more thorough search. Bettis and Taha were dropped off at a nearby gas station.

The next day law enforcement performed another dog sniff on the rental vehicle. After the dog alerted, they obtained a state court warrant to search the Toyota. This time, officers discovered approximately 200 grams of heroin in the driver’s headrest. That same day Daniels called law enforcement about the vehicle, and the case agent said that it would be returned directly to the rental company.

A grand jury indicted Bettis on one count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and two counts of distribution of heroin in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C). Bettis moved to suppress the heroin found in the Toyota, arguing that law enforcement violated his Fourth Amendment rights by towing the vehicle to the police garage after the initial roadside search. The magistrate judge found that Bettis had standing to challenge the seizure of the rental car under United States v. Muhammad , 58 F.3d 353 (8th Cir. 1995) (per curiam) and United States v. Best , 135 F.3d 1223 (8th Cir. 1998). The court denied the motion to suppress because highway conditions limited the search’s effectiveness and the suspects’ misleading and confusing stories increased the officers’ suspicions. The district court adopted the report and recommendation in full.

The court convicted Bettis on all three charges and sentenced him to 120 months in prison. Bettis timely appealed the denial of his motion to suppress the heroin found in the Toyota.² We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291 and review the district court’s ultimate denial of a motion to suppress de novo . Best , 135 F.3d at 1224.

II.

We first address whether Bettis, an unauthorized and unlicensed driver of a rental car, has standing to challenge the rental car’s seizure after the roadside search.

Fourth Amendment standing is "useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search," but it does not implicate Article III jurisdiction. Byrd v. United States , ––– U.S. ––––, 138 S. Ct. 1518, 1530, 200 L.Ed.2d 805 (2018). We must determine whether Bettis "had a legitimate expectation of privacy in the area searched or the item seized." United States v. Gomez , 16 F.3d 254, 256 (8th Cir. 1994) (citing Rakas v. Illinois , 439 U.S. 128, 138–44, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) ). There is no "single metric or exhaustive list of considerations," but a defendant’s expectation of privacy must be grounded in property law or understandings that are recognized by society. Byrd , 138 S. Ct. at 1527. The defendant bears this burden by a preponderance of the evidence. See United States v. Anguiano , 795 F.3d 873, 878 (8th Cir. 2015).

The district court correctly observed that an unauthorized driver of a rental car can establish the required expectation of privacy with "evidence of consent or permission from the lawful owner/renter." Muhammad , 58 F.3d at 355.

We have previously remanded a case to the district court for failing to determine whether an unauthorized driver without a valid license had "permission to use the rental automobile." Best , 135 F.3d at 1225. If a driver can make that showing, he "would have a privacy interest giving rise to standing." Id. Daniels testified that Bettis had permission to drive the Toyota, so Bettis has standing to challenge the search.

Attempting to bypass Best , the Government claims that the Supreme Court’s Byrd decision "seemed to signal" that unauthorized drivers lack standing if they use a strawman to acquire a rental car because that deception strips away any reasonable expectation of privacy in the vehicle. The Supreme Court left this question unanswered, and on remand, "the government elected to abandon its position that Byrd had no reasonable expectation of privacy in the rental vehicle on this basis." United States v. Byrd , 388 F.Supp.3d 406, 412 (M.D. Pa. 2019).

Even if the Government is correct about the Supreme Court’s "signal" in Byrd , the facts there clearly indicated a strawman transaction. Byrd accompanied Reed (the straw woman) to the rental facility and "stayed in the parking lot in the Honda while Reed went to the Budget desk and rented a Ford Fusion." 138 S. Ct. at 1524. Then, "[w]ith the rental keys in hand, Reed returned to the parking lot and gave them to Byrd." Id. Byrd left in the rental, and the two parted ways. Id. No such evidence is present here.

The Government emphasizes that Daniels gave the rental company a false address, but on cross-examination she explained it was "the address that my ID had on it and all my bank information and everything." D. Ct. Dkt. 33, Suppression Hr’g Tr. at 86:11–17. The Government also claims that renting a series of vehicles, while owning one, is suspicious. Daniels did not deny that Bettis had driven the Toyota and other rental cars, but she testified that in general, "I drive the rental car and if he needed to use a car, then he could use my vehicle." Id. at 81:5–6. Specifically, when she rented the car on November 1—days before Bettis left for Chicago—she did not know that he would be using it. And she thought "it was better [for Bettis] to drive the rental car due to the mileage." Id. at 81:6–8. Daniels also explained that she did not list her husband on the rental contract because "[i]f you add another name they charge more." Id. at 85:18–23. A prosecution witness testified that "Bettis does not have a valid license so he was never listed on any agreements as an authorized driver." Id. at 19:7–13. The Government did not challenge or impeach this testimony. Without more, a husband and wife sharing a rental car is not inherently suspicious, nor does it suggest a strawman situation.

The Government essentially invites us to overturn our precedent recognizing that an unlicensed, unauthorized driver who has permission from the renter has a reasonable expectation of privacy. Best , 135 F.3d at 1225. We decline that invitation because we do not see Byrd as requiring that result. United States v. Williams , 537 F.3d 969, 975 (8th Cir. 2008) (one panel cannot overrule another). If anything, Byrd lends support to our precedent because it rejected the Government’s argument that "drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile." 138 S. Ct. at 1527–1528.

We recognize that post- Byrd a sister circuit³ has concluded that an unauthorized driver operating "the vehicle illegally" does "not have lawful possession or control of the vehicle." United States v. Lyle , 919 F.3d 716, 730 (2d Cir. 2019). The Second Circuit found that an unlicensed driver is similarly situated to a defendant that is wrongfully present in the place searched. Id. Thus, an illegal...