# United States v. Dortch

> Court of Appeals for the Fifth Circuit · December 23, 1999 · 199 F.3d 193

URL: https://www.frixlaw.com/law-library/cases/6984763

## Case

- **Full name:** United States v. Cecil Anthony DORTCH
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** December 23, 1999
- **Citations:** 199 F.3d 193; 1999 WL 1251873
- **Precedential status:** Published
- **Opinion:** Dissent by Garwood
- **Judges:** Benavides, Garwood, Smith
- **Cited by:** 176 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by United States v. Brigham, 382 F.3d 500 (2003).
- Negative treatments: 2
- Distinguished by: 2
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6984763

## How later opinions describe it (automated extraction)

- finding that conflicting stories from the driver and passenger about from where they traveled and the fact that neither were listed as authorized drivers on the rental agreement and the driver’s nervousness did not give rise to a reasonable suspicion of drug trafficking to sup…
- holding that officers had no reasonable suspicion of trafficking to justify continued detention after computer check came back negative despite conflicting stories from driver and passenger and the fact that neither were listed as authorized drivers of rental car
- holding that defendant was unlawfully detained when the drug dog arrived “moments” after officers had effectuated the purposes of their initial traffic stop and officers had not obtained facts creating reasonable suspicion that defendant was trafficking drugs
- holding that nervousness, inconsistencies in story, and the defendant’s absence as an authorized driver on the rental agreement did not provide reasonable suspicion to prolong the traffic stop after the computer check came back clean
- holding that when drugs were found during a car search supported by probable cause, but the probable cause arose because of an illegally extended traffic stop, the drugs were discovered in violation of the Fourth Amendment

## Opinion text

GARWOOD, Circuit Judge,
dissenting:
I dissent. The district court did not err in denying the motion to suppress.
I.
To begin with, the officers had reasonable suspicion of contraband trafficking sufficient to warrant the very brief — five minutes or less — additional detention of the vehicle following the report on Dortch’s driver’s license check and until the alert of the previously summonsed K-9. The following matters reflected by the prosecution’s evidence at the suppression hearing — at which Dortch presented no evidence — more than suffice to establish reasonable suspicion of contraband trafficking:
1. Though the car had been rented in Pensacola, Florida — -which the court could judicially notice was some 500 miles east of Houston — on March 4, at 4:30 p.m., and the stop was near Beaumont (about 88 miles east of Houston) on March 5 at 11:30 p.m. (31 hours later), Dortch and the passenger told the officers “they had been in Houston for two days”. Given normal driving times, it would be reasonable to conclude this was likely a fabrication.
2. Despite having asserted they had been in Houston for two days, Dortch told the officers they had no luggage.
3. Dortch acted “very nervous” and “couldn’t stand still.”
4. Officer Ener testified: “The car was rented by Nicki Bender. Nicki Bender was not present in the car, and the rental papers showed there were no additional drivers allowed for the vehicle,” and no one was “present who had the authority to operate that vehicle.” Officer Ener testified that one of his “reasons for detaining the vehicle” was that “neither the driver nor the passenger, were authorized drivers of that vehicle.”
5. Dortch told one officer that Bender was his cousin; the passenger told one officer that Bender was Dortch’s wife and told another officer that she was his girlfriend.
6. There was no evidence at the suppression hearing that Bender authorized either Dortch or the passenger to drive the car (or even that Dortch so claimed to the officers).
The majority rejects what it characterizes as the government’s argument “that officers have reasonable suspicion to suspect drug trafficking anytime someone is driving a rental car that was not rented in his name.” The majority’s approach in this respect is flawed for several reasons. It ignores other suspicious factors — e.g., items 1, 2, 3 and 5 above. It also ignores the facts that not only was the driver not the renter, but the renter was not present in the vehicle, “the rental papers” provided that “no additional drivers” [other than the renter] were “allowed for the vehicle” so that neither the driver nor the sole passenger was authorized to drive the vehicle, and there was nothing td document any relationship between anyone present in the vehicle and either its renter or its owner. Finally, the majority in this connection also simply overlooks the testimony of Officer Ener, a nine and a half year veteran police officer, that the third party rental aroused his suspicions because “frequently persons who are transporting narcotics or other illegal substances will have someone else rent a car for them, and they will take possession of the car at a later time” and “in my training and experience, it’s been *204 common for a third person, someone who is not in the car, to rent a car to be used for transporting narcotics or other contraband.”
The majority cites no authority for its conclusion that circumstances such as none of a rented vehicle’s occupants being either an authorized driver of it or having any documented relation to the vehicle or the party renting it, do not give rise to reasonable suspicion of contraband trafficking. Nor am I aware of any such authority. To the contrary, in United States v. Jones, 44 F.3d 860 (10th Cir.1995), the Court found reasonable suspicion for continued detention following a traffic stop in part because the driver of the rental car was not an authorized driver under the rental agreement. The Court stated (id. at 872):
“In Arango [U.S. v. Arango, 912 F.2d 441, 447 (10th Cir.1990) ], an analogous case regarding a traffic stop for speeding, we concluded that the combination of the driver’s inability to prove lawful possession of the vehicle and the officer’s skepticism regarding the amount of luggage provided reasonable suspicion to justify an inquiry related to the transportation of contraband.”
The majority has in effect applied a probable cause-rather than a reasonable suspicions-standard here. But, “[t]he ‘reasonable suspicion’ standard does not require that officers have probable cause ... or that the circumstances be such that there is no reasonable hypothesis of innocent behavior.” United States v. Basey, 816 F.2d 980, 989 (5th Cir.1987). In determining whether there was reasonable suspicion we look at all the circumstances together to “weigh not the individual layers but the ‘laminated’ total,” United States v. Edwards, 577 F.2d 883, 895 (5th Cir.1978), and “[FJactors that ordinarily constitute innocent behavior may provide a composite picture sufficient to raise reasonable suspicion in the minds of experienced officers.” United States v. Holloway, 962 F.2d 451, 459 (5th Cir.1992). The majority has ignored these settled precepts.
II.
Even if the officers did not have reasonable suspicion justifying their continued brief detention of the vehicle until the K-9 alert, such detention in any event was not shown to have violated any of Dortch’s rights. Thus the majority errs by holding that continued detention of the vehicle amounted to continued detention of Dortch, because without the vehicle he as a practical matter had to remain in the vicinity. 1 Because neither Dortch nor the other occupant was the renter of the vehicle, and because the rental agreement provided only the renter was an authorized driver, Dortch had no right to complain of the vehicle’s detention.
“[T]he proponent of a motion to suppress has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 424 n. 1, 58 L.Ed.2d 387 (1978).
*205 The suppression hearing record contains no evidence that either Dortch or his passenger had any right to drive the car or to be in possession of it; nor does the suppression hearing record contain any evidence that Bender, who was the named renter in the rental agreement, gave Dortch or the passenger permission to use or drive the vehicle. 2 See United States v. Parks, 684 F.2d 1078, 1084-85 (5th Cir.1982) (district court not required to find that defendant met his burden of showing his possession of airplane was legitimate so as to give rise to a protectable Fourth Amendment interest; his possession of the key and the absence of evidence the plane was stolen did not suffice). The suppression hearing record does contain evidence that under the rental agreement neither Dortch nor the passenger was an authorized driver. These facts distinguish the instant case from United States v. Kye Soo Lee, 898 F.2d 1034 (5th Cir.1990), where we rejected the government’s appeal from the granting of a motion to suppress on a showing that the renter of the searched truck had entrusted it to the driver, but the opinion makes no reference to any restriction in the rental agreement on who could drive the truck.
In United States v. Riazco, 91 F.3d 752, 755 (5th Cir.1996), we noted that the Fourth and Tenth Circuits “have held that persons driving a rental car without the authorization of the rental company have no standing to challenge the validity of a search, because they have no legitimate expectation of privacy in such circumstances,” citing United States v. Wellons, 32 F.3d 117 , 119 & n. 4 (4th Cir.1994) and United States v. Roper, 918 F.2d 885, 887-88 (10th Cir.1990). Accordingly, in Riazco we reversed the district court’s grant of the motion to suppress where neither the driver nor the passenger was the renter and the rental agreement stated that the car was to be driven only by persons authorized by the rental company and neither the driver nor the passenger was so authorized. We distinguished Kye Soo Lee on the basis that in Riazco there was no evidence that the renter had authorized the driver to drive, only that the passenger had done so. In United States v. Boruff, 909 F.2d 111 (5th Cir.1990), “Boruff arranged to have his girlfriend, Brenda Lawless (Lawless), rent a ear which he planned to use in the smuggling operation. Lawless rented a white Lincoln Towncar in her own name and turned it over to Boruff. The standard rental agreement signed by Lawless provided that only she would drive the car.... ” Id. at 113-14 . Later, while Boruff was driving the car, and alone in it, it was stopped and searched. We held Boruff could not complain of the search:
“Boruff had no legitimate expectation of privacy in the rental car. Under the express terms of the rental agreement, Lawless was the only legal operator of the vehicle. Lawless had no authority to give control of the car to Boruff.” Id. at 117 .
In a recent opinion which carefully considers the relevant state and federal authorities, a Texas appellate court has elected to follow the Boruff approach rather than apply the result of Kye Soo Lee . See Rovnak v. State, 990 S.W.2d 863, 867-71 (Tex.App.—Texarkana, 1999, pet. refd). 3
While Kye Soo Lee predated Boruff , and if the two are in conflict we are bound by Kye Soo Lee , nevertheless Kye Soo Lee is *206 distinguishable because it does not reflect, and did not address, the terms of the rental agreement (and because the suppression hearing evidence there, credited by the district court, showed the renter had entrusted the vehicle to the driver). But, if Kye Soo Lee and Boruff are in conflict, serious consideration should be given to taking this case en banc, to clarify our law in this respect and follow Boruff and the rule in the Fourth and Tenth Circuits.
For these reasons, I dissent from the majority’s holding that the district court erred in denying the motion to suppress.
. Testimony at the suppression hearing reflected that the officers told Dortch, while they were wailing for the report on the inquiry concerning his license, “that he would be free to leave as soon as the warrant checks came back but we were going to detain the car until the K-9 could get there.” Dortch replied "I’ll just stay with the car.” Officer Ener testified that Dortch never asked for his driver’s license back and had he either asked for it, or indicated he wanted to leave, the license would have been returned to him, and "we would have called another patrol unit to come pick him up and take him down to the truck stop which was just a few miles away. We have done this in the past," and that when the warrant check came back "at that point if he had indicated he wanted to leave, we would have handed him everything and if he had wanted us to call somebody, we would have.”
The majority's footnote 4 is puzzling because it fails to address the fact that Dortch's claim of personal detention wholly depends on his claim of detention of the vehicle, a vehicle which neither he nor the sole other occupant had any right to drive or possess.
. At the conclusion of the subsequent trial on the merits, Dortch, on cross-examination by the government, testified that he accompanied Bender when the car was rented and he paid for its rental and was given to understand by the rental company that he did not have to be listed as an additional driver in order to be allowed to drive it. Because Dortch did not renew his motion to suppress at trial, he may not avail himself of this trial evidence in his instant challenge to the district court's denial of his motion. See United States v. Marbury, 732 F.2d 390 , 400 n. 13 (5th Cir.1984).
. Incidentally, Riazco, Boruff and Rovnak all illustrate the use of vehicles rented by absent third parties in narcotics trafficking, just as Officer Ener testified.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6984763. Public record. Not legal advice.