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Unauthorized rental car driver couldn't protest inventory (but stay tuned)

A trooper spotted Sanchez speeding. Sanchez handed the trooper a passport and an expired rental contract in the name of Alexis Fernandez. Fernandez was not in the car. In bold type, the rental contract stated, "NO OTHER DRIVERS PERMITTED."

The trooper asked Sanchez to sit in his patrol car while the trooper completed a speeding citation. Though Sanchez did not speak English well, he told the trooper that he and his passenger were on their way to Colorado for a week. He also said that his driver license was suspended because of a DUI citation, and that his friend, Fernandez, was in California.

As the dispatcher checked for driver license and criminal history and outstanding warrants, the trooper deployed his drug detector dog for an exterior sniff of the rental car. The dog did not indicate the presence of the odors of controlled substances.

The trooper asked Sanchez for consent to search the car and gave Sanchez a Spanish language consent form. Sanchez refused. The trooper then called Enterprise. Because the contract was expired, the rental car was authorized to be driven only in California, Nevada, and Arizona, and Fernandez was not present, Enterprise asked the trooper to impound the car.

The trooper told Sanchez that the car would be impounded, but first he would need to inventory the contents of the car. Following the Lexipol impound policy promulgated by the Highway Patrol, the trooper conducted an inventory of the car. Neither Sanchez or his passenger asked to remove any personal items from the car trunk. The trooper located ten packages of methamphetamine in the trunk.

Charged with possession of methamphetamine with intent to distribute, Sanchez asked the court to suppress the drug evidence from the trunk. The trial court found that Sanchez had legal standing to challenge the inventory, even though he was not named on the rental contract. Notwithstanding, the trial court also ruled that the trooper properly followed his agency policy and conducted a lawful inventory. Sanchez appealed, asserting that the inventory policy violates the Fourth Amendment and that the trooper's subjective intent to find contraband invalidated the inventory search.

The Supreme Court has long held that officers may conduct inventories of seized vehicles and other property. Colorado v. Bertine, 479 U.S. 367 (1987). The inventory must be conducted in accordance with a standard policy. Florida v. Wells, 495 U.S. 1 (1990). The Supreme Court articulated three justifications for inventories: "the protection of the owner's property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger." South Dakota v. Opperman, 428 U.S. 364 (1976).

An officer can't use an inventory solely as a ruse to search for evidence. The Tenth Circuit has previously held, "while mixed motives or suspicions undoubtedly exist in many inventory searches, such motives or suspicions alone will not invalidate an otherwise proper inventory search." United States v. Cecala, 2000 WL 18948 (10th Cir. 2000). The trooper Withers acknowledged that he wanted to search the rental car for drugs. Even so, he had another motive for the inventory. Once Enterprise requested the impound, the trooper was obligated to follow his agency policy and make a complete inventory search of the car and its contents. Thus, the evidence was admissible.

The question of whether a driver who is not listed on the rental agreement, but has the renter's permission to use the car, has a reasonable expectation of privacy in the car's trunk is now pending before the United States Supreme Court. In Byrd v. United States, No. 16-1371 (argued Jan 9, 2018), Terrence Byrd was stopped while driving on an interstate highway in Pennsylvania. When officers searched the trunk of the rental car, they found body armor and 49 bricks of heroin. A decision on Byrd's standing to contest the search is expected later this year.

Though in many ways this case speaks to the routine traffic stop and impound, it was the trooper's determination to know his agency's inventory policy, take the traffic stop step by step, and detailed report and testimony of his actions that lead to the discovery and evidentiary admissibility of the large quantity of methamphetamine. Another example of excellent street cop work leading to a safer community. United States v. Sanchez, 2018 WL 446172 (10th Cir 2018)