ARGUMENT
Defendant Cruz-Sanchez offers contrived, amorphous standards in response to the
Government’s judicially manageable rules. Rather than cite circuit and state court
precedents about whether unauthorized, unlicensed rental car drivers enjoy legitimate
expectations of privacy, she urges this Court to create a novel theory derived from
tangential insurance laws. Ignoring the Supreme Court’s plain language in LopezMendoza prohibiting suppression of identity evidence, Defendant instead selectively
emphasizes the Court’s citation to jurisdiction cases. More than once, Defendant relies
on cases later distinguished by the very courts that issued them. This Court should not
endorse Defendant’s strained interpretations of the law.
I.
DEFENDANT CANNOT DEMONSTRATE A LEGITIMATE
EXPECTATION OF PRIVACY UNDER ANY TEST.
A. Defendant’s Conception of Legitimate Privacy Expectations Ignores Supreme
Court Precedent and Unjustifiably Relies on a Selective Reading of Insurance
Law.
Defendant Cruz-Sanchez fundamentally misconceives the legitimate expectation
of privacy inquiry by trying to distill “understandings that are recognized and permitted
by society” from insurance law. (Appellee’s Br. 6 (quoting Rakas v. Illinois, 439 U.S.
128, 143 n.12 (1978)).) The Supreme Court has never offered a definition of these
understandings, but this ambiguity does not give Defendant license to selectively rely on
insurance cases. Nor does it permit her to ignore sources of legitimacy, such as contract
and criminal law, that numerous courts have found dispositive to this inquiry. The
Supreme Court, federal circuits, and state courts speak in unison: “lawful[] possess[ion]
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or control[]” is necessary to legitimate an expectation of privacy. See, e.g., Rakas, 439
U.S. at 143 n.12. Defendant was prohibited by contract and by law from driving the
rental vehicle; her operation of the car thus falls outside any reasonable interpretation of
society’s understandings.
1. Defendant’s Reliance on Insurance Law Obfuscates the Privacy Inquiry and
Ignores On-Point Precedent.
Defendant Cruz-Sanchez mistakenly assumes that insurance regulation priorities
inform Fourth Amendment inquiries. Cases that extend insurance coverage to
unauthorized rental car drivers construe insurance provisions “wherever possible so as to
afford coverage rather than to restrict it” based on a concern for compensating injured
third parties. Royal Indem. Co. v. Shull, 665 S.W.2d 345, 347 (Mo. 1984) (en banc).
Because courts deciding insurance cases are concerned with apportioning risk between
insurers and third parties, they do not focus on the crux of the privacy inquiry: whether
society endorses a driver’s presence in the car.
Further, states have reached conflicting conclusions about insuring unlicensed or
unauthorized rental car drivers. Defendant thus cannot distill from insurance cases a
societal expectation that legitimates her privacy interest without arbitrarily disregarding
decisions from states that would not insure her. See, e.g., Travelers Ins. Co. v. Budget
Rent-A-Car Sys., Inc., 901 F.2d 765, 768 (9th Cir. 1990) (holding that under Hawaii law
an insurer need not cover unauthorized drivers because “if a contract provides anything at
all, . . . it is the reasonable expectation that the parties will fulfill their obligations”);
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Sabino v. Junio, 272 A.2d 508, 509-10 (Pa. 1971); Cont’l Cas. Co. v. Weaver, 739 P.2d
1192, 1195 (Wash. Ct. App. 1987).
Notably, Defendant does not refer to any state or federal decision that uses
insurance law to establish a privacy interest. One state Defendant relies on implicitly
rejects the comparison in a Fourth Amendment case. Defendant cites Enter. Leasing Co.
v. Allstate Ins. Co, 671 A.2d 509, 515 (Md. 1996), for the proposition that unauthorized
drivers will foreseeably operate rental cars. (Appellee’s Br. 11.) But an on-point case
from the same state adopts the bright-line rule that such expectations of privacy are
objectively unreasonable. Colin v. State, 646 A.2d 1095, 1097, 1100 (Md. Ct. Spec. App.
1994) (quoting the trial court’s determination that an unauthorized rental car driver had
no greater expectation of privacy “than the thief of a vehicle”).
Other states similarly have issued holdings adverse to Defendant in Fourth
Amendment rental car cases. See, e.g., State v. Hill, 94 P.3d 752, 758 (Mont. 2004)
(holding that an unauthorized driver “exercised control of the vehicle . . . in an unlawful
manner” and lacked a legitimate privacy expectation); see also Littlepage v. State, 863
S.W.2d 276, 280 (Ark. 1993); People v. McCoy, 646 N.E.2d 1361, 1364 (Ill. App. Ct.
1995); cf. State v. Bertram, 591 A.2d 14, 20 (R.I. 1991); Bell v. Commonwealth, 563
S.E.2d 695, 708 (Va. 2002). This state law follows Supreme Court precedent
(Appellant’s Br. 8-10) and echoes the reasoning of the majority of circuits considering
the privacy expectations of unauthorized or unlicensed rental car drivers (Appellant’s Br.
10-12). Defendant asks this Court to resist the prevailing trend in Fourth Amendment
law in favor of an implausible theory based on her selective reading of insurance cases.
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2. The Government’s Rule, Rooted in Contract and Criminal Law, Better Addresses
the Legitimate Expectation of Privacy Inquiry.
Positive law — including contract and criminal law — governs the relationships
with places that society endorses, and therefore provides a more cogent account of
society’s expectations. The Supreme Court has instructed that privacy expectations must
be evaluated by examining a defendant’s relationship with the place that was searched.
See Minnesota v. Carter, 525 U.S. 83, 88 (1998); see also id. at 99 (Kennedy, J.,
concurring) (noting that a defendant “must have the requisite connection to that place”);
Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (recognizing that
evaluation of privacy expectations “requires reference to a ‘place’”). Society expresses
its understandings by requiring that a rental car driver sign a contract with the owner and
possess a valid driver’s license. The ubiquitous and mandatory nature of contracts and
licenses establishes a threshold for society’s recognition of a person’s entitlement to
privacy in a given place.
Defendant’s claim that privacy expectations survive a contract’s expiration
(Appellee’s Br. 9-10) mischaracterizes the weight of authority and ignores case law
specific to unauthorized rental car drivers. Although Defendant claims that “a majority
of the circuits” are willing to validate an individual’s privacy expectation even though her
lease has expired (Appellee’s Br. 9-10), the three cases Defendant cites state the
exception rather than the rule. See, e.g., United States v. Rahme, 813 F.2d 31, 34 (2d Cir.
1987) (noting the bright-line rule that “when a hotel guest’s rental period has expired . . .
the guest does not have a legitimate expectation of privacy in the hotel room”); see also
Finsel v. Cruppenink, 326 F.3d 903, 907 (7th Cir. 2003); United States v. Allen, 106 F.3d
695, 699 (6th Cir. 1997); United States v. Ramirez, 810 F.2d 1338, 1341 (5th Cir. 1987);
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United States v. Larson, 760 F.2d 852, 855 (8th Cir. 1985). Even the anomalous cases
Defendant cites fail to support an analogy to unauthorized rental car drivers: the court in
United States v. Cooper expressly distinguished the privacy expectations of an authorized
driver whose rental car lease has expired from the “materially different” expectations of
an unauthorized driver, who lacks “privity of contract” with the rental company. 133
F.3d 1394, 1400 (11th Cir. 1998). Defendant’s reliance on United States v. Owens, 782
F.2d 146 (10th Cir. 1986), (Appellee’s Br. 9) is likewise misguided since the Tenth
Circuit has adopted a bright-line rule denying privacy expectations to unauthorized rental
car drivers. See United States v. Roper, 918 F.2d 885, 886 (10th Cir. 1990); United
States v. Obregon, 748 F.2d 1371, 1375 (10th Cir. 1984).
An unlicensed driver faces the same obstacle as an unauthorized one: society
refuses to confer legitimacy on her relationship to the vehicle. Defendant’s contention
that “[c]ommitting a moving violation does not deprive a driver” of privacy expectations
(Appellee’s Br. 12) is too broad to inform this case. Many violations, such as speeding,
deal only with the manner in which a defendant operates a car. But violations that
prohibit driving a rental car altogether prevent the driver from forming a legitimate
relationship to the vehicle and thus preclude an expectation of privacy.1 Defendant’s
1
Delaware v. Prouse, 440 U.S. 648 (1979), does not hold otherwise. Defendant
significantly misstates Prouse, claiming that it “held that a driver possessed a reasonable
expectation of privacy . . . notwithstanding that he was in violation of a Delaware law
criminalizing driving under the influence of drugs.” (Appellee’s Br. 12.) The defendant
in Prouse was indicted under a statute criminalizing possession of marijuana rather than
under any statute related to driving. State v. Prouse, 382 A.2d 1359, 1361 (Del. 1978)
(citing Del. Code Ann. tit. 16, § 4754 (1995)). The Court indicated that Prouse was
likely a passenger in the vehicle rather than its driver. Prouse, 440 U.S. at 650 n.1.
Finally, Prouse concerned whether stopping a vehicle without suspicion was
unreasonable; although the Court may have presumed that the defendant had a legitimate
expectation of privacy, it hardly held so.
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unlicensed operation makes her presence in the car wrongful, and therefore renders her
relationship with the place searched illegitimate. See, e.g., Rakas, 439 U.S. at 141.
B. Defendant’s Implied or Presumed Renter-Permission Test Depends on Inapposite
Precedent and Presents Intractable Adjudication Problems.
Defendant Cruz-Sanchez urges this Court to create a test whereby a presumption
of implied renter-permission legitimates the privacy expectations of an unauthorized,
unlicensed rental car driver. (Appellee’s Br. 14.) Finding implied permission in the
rental car context, though, requires courts to assume that a renter intended to breach a
contract — conduct courts should be reluctant to impute to an otherwise innocent party.
Defendant’s argument that this Court should presume permission unless a renter
affirmatively forbids an unauthorized driver from using the car (Appellee’s Br. 18) leaves
renters particularly vulnerable to subsequent breach of contract claims.
Unable to cite a case recognizing implied permission in the rental car context,
Defendant draws a comparison to borrowed cars. (Appellee’s Br. 16-18.) Borrowed cars
are irrelevant because Defendant did not have permission — implied or explicit — from
the car’s owner, Zippy Rent-a-Car. Indeed, the owner specifically prohibited her from
driving. (J.A. 21.) Defendant attempts to rescue her analogy by citing United States v.
Valdez-Hocker, 333 F.3d 1206, 1210 (10th Cir. 2003), to refute the idea that permission
must come from the legal owner. (Appellee’s Br. 15.) But Valdez-Hocker based its
finding on the driver’s reasonable belief that the lender owned or intended to purchase the
car; the court distinguished situations, like this one, in which a defendant knows the
lender is not the owner. 333 F.3d at 1210. Defendant’s reliance on Valdez-Hocker and
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other Tenth Circuit precedent (Appellee’s Br. 14-15) is misplaced since that circuit found
renter permission irrelevant in Obregon and instead adopted a bright-line rule that
unauthorized rental car drivers lack legitimate expectations of privacy. See Obregon, 748
F.2d at 1374-75.
Defendant’s implied renter-permission test is also judicially unmanageable insofar
as it relies on intimacy as a proxy for permission. (Appellee’s Br. 18-19.) According this
weight to such an unwieldy category as “intimacy” would require the Court to make fine
distinctions among different levels, types, and durations of intimacy, and to engage in
unsavory inquiries into the romantic and personal lives of defendants.
Defendant also points to patterns of use to justify an inference of permission.
(Appellee’s Br. 18.) Any pattern suggested by the record in this case, however, is one of
explicit permission. Costa-Varga testified that he “let” Defendant drive rental cars “other
times,” indicating discrete incidents when he granted Defendant explicit permission.
(J.A. 21-23.) The parties agree that Defendant did not have Costa-Varga’s explicit
permission to drive the car at issue in this case. (J.A. 11.) She cannot carry her burden to
prove permission, and her privacy expectation claim fails.
C. Defendant Cannot Demonstrate a Legitimate Expectation of Privacy Under a
Totality-of-the-Circumstances Test.
Defendant misapplies the totality-of-the-circumstances test endorsed by United States
v. Smith, 263 F.3d 571 (6th Cir. 2001). Her attempt to minimize the necessity of a
business relationship (Appellee’s Br. 19) ignores the Smith court’s declaration that
Smith’s extensive business relationship with the rental company was the “most
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significant[]” consideration. 263 F.3d at 586. Contrary to Defendant’s assertion
(Appellee’s Br. 22), the court analyzed Smith’s relationship to the vehicle, as dictated by
his dealings with the rental company, separately from Smith’s relationship with his wife,
the authorized driver. See Smith, 263 F.3d at 586-87. Unlike Smith, who reserved and
paid for the rental car, Defendant had no business relationship with Zippy Rent-A-Car.
Defendant’s wordplay, claiming that she is a “licensed driver” because her
expired Mexican license is a “valid, non-suspended driver’s license” (Appellee’s Br. 2021),2 is non-responsive to Smith’s central concern with licensure status: whether Smith
could legally operate the vehicle. See Smith, 236 F.3d at 586-87 (repeating three times
that it was “not illegal” for Smith to drive).
These circumstances, combined with Defendant’s lack of express permission from
the authorized driver and her status as a previously deported felon, render Defendant
unable to meet her burden. She cannot show that her case is “truly unique, and thus . . .
not governed by the general rule [refusing to recognize the privacy expectations of]
unauthorized drivers of rental vehicles.” Id. at 586. Under any formulation of the
privacy inquiry, this Court should refuse to validate Defendant’s privacy expectation in
the rental vehicle.
Defendant’s claim that she is licensed contradicts common sense and precedent. See, e.g., Kaplysh v.
Takieddine, 519 N.E.2d 382, 385-86 (Ohio 1988) (holding that a motorist with an expired license was
“unlicensed” within the meaning of a rental policy); see also Zamarron v. Adame, 864 S.W.2d 173,
176 (Tex. App. 1993) (calling a driver with an expired Mexican license “unlicensed”).
2
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II.
COURTS SHOULD NEVER SUPPRESS IDENTITY EVIDENCE.
The Supreme Court has held that the “‘body’ or identity of a defendant . . . in a
criminal . . . proceeding is never itself suppressible.” United States v. Lopez-Mendoza,
468 U.S. 1032, 1039 (1984). Despite this language, Defendant Cruz-Sanchez argues as
though there is a strong presumption in favor of suppression that the Government has not
rebutted. However, she neither establishes such a presumption nor addresses the
Government’s reasons to refuse suppression.
A. Defendant Cannot Prove that the Lopez-Mendoza Rule Is Limited to Jurisdiction.
Defendant claims that the Lopez-Mendoza Court undermined the force of its plain
language simply by citing cases about jurisdiction after its rule. (Appellee’s Br. 25-31.)
The Court’s explicit rule controls; the citations that come after the rule merely explain the
authority on which the rule is based. Further, Defendant ignores her own admonition to
read the rule “in context” by focusing only on the citations and words immediately
surrounding its first announcement. (Appellee’s Br. 26-30.) Discussing the rule later in
the opinion, the Court referred to Matter of Sandoval, 17 I. & N. Dec. 70 (B.I.A. 1979),
an instructive case. Lopez-Mendoza, 468 U.S. at 1043. Sandoval did not simply repeat a
“jurisdictional rule” (Appellee’s Br. 29 n.11), but instead conducted a “pragmatic
analysis” of the purposes, efficacy, and costs of “the Fourth Amendment exclusionary
rule . . . in deportation proceedings.” 17 I. & N. Dec. at 77. This Court should reject
Defendant’s claim that citations alter the plain language of a rule and should refuse to
consider context selectively to serve Defendant’s interests.
9
Defendant’s emphasis on terms of art (Appellee’s Br. 28 n.10) supports the
Government’s interpretation of Lopez-Mendoza. The Lopez-Mendoza rule uses the term
“suppressible,” which refers to the exclusion of evidence. (Appellant’s Br. 26.)
Although Defendant correctly defines “body” as a term referring to habeas corpus
(Appellee’s Br. 28 n.10), the Court’s deliberate use of the word “identity” in addition to
“body” signaled its intention to extend its holding beyond jurisdiction (Appellant’s Br.
26).
Even if this Court determines that Lopez-Mendoza refers only to jurisdiction, the
Supreme Court has not foreclosed applying the rule to evidence. This Court should
follow the majority of circuits that have considered this issue and hold that identity
evidence is never suppressible in criminal immigration proceedings because it is unique
and its suppression uniquely costly.
B. Defendant Is Mistaken that Suppression of Identity Evidence Serves the Purposes
of the Exclusionary Rule.
1. The Supreme Court Does Not Apply the Exclusionary Rule When Police Conduct
Is Technically Illegal but Does Not Warrant Deterrence.
Defendant Cruz-Sanchez argues that it would be “doctrinal[ly] incoheren[t]” for
this Court to simultaneously determine that Officer Gomez’s behavior was
unconstitutional and that it should not be deterred. (Appellee’s Br. 32.) However, just
last Term, the Supreme Court refused to apply the exclusionary rule to police conduct
that, while technically illegal, should not be deterred. See Hudson v. Michigan, 126 S.
Ct. 2159, 2166 (2006) (declining to apply the exclusionary rule to knock-and-announce
violations for fear of deterring timely entry and “producing preventable violence against
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officers”); see also United States v. Leon, 468 U.S. 897, 919 (1984) (declining to extend
the exclusionary rule to Fourth Amendment violations perpetrated by police executing a
warrant ultimately found defective). Hudson did not identify a category of “unlawful but
desirable” police conduct (Appellee’s Br. 32), but rather acknowledged that not all
unlawful conduct warrants deterrence. To the extent that this formulation constitutes a
“Janus-faced rule” (Appellee’s Br. 32), it is a contortion of the Supreme Court’s
intentional making.
2. The Supreme Court’s Cases About Stop-and-Identify Statutes Do Not Address
Suppressing Identity Evidence.
Defendant contends that the Supreme Court has already “struck the balance”
between the interest in police safety and individuals’ interests in privacy by protecting
“reasonable identity requests.” (Appellee’s Br. 32-33 (citing Hiibel v. Sixth Judicial Dist.
Court, 542 U.S. 177 (2004), and Brown v. Texas, 443 U.S. 47 (1979)).) The cases she
cites are inapposite because in those cases the Court asked only whether stop-and-identify
statutes that compelled suspects to identify themselves were constitutional. See Hiibel,
542 U.S. at 188; Brown, 443 U.S. at 52. It never conducted the costs-and-benefits
inquiry that governs application of the exclusionary rule.
3. Defendant Understates the Costs and Exaggerates the Benefits of Suppressing
Identity Evidence in Criminal Immigration Proceedings.
Illegal aliens do not receive amnesty when courts suppress evidence. Their
release allows criminal activity to continue and imposes costs on the judicial system that
must re-prosecute them, but it does not deter police misconduct. Defendant quotes
United States v. Hernandez, 189 F.3d 785, 791 (9th Cir. 1999) — a case about venue —
11
to claim that illegal reentry is not a continuing crime. In an identity suppression case, the
Ninth Circuit examined the quotation upon which Defendant relies and explicitly rejected
the Defendant’s inference. United States v. Ortiz-Hernandez, 427 F.3d 567, 578-79 (9th
Cir. 2005) (concluding that “[w]ere Ortiz-Hernandez to be released, law enforcement
officials immediately would have probable cause to re-arrest him”); see also United
States v. Del Toro Gudino, 376 F.3d 997, 1001-02 (9th Cir. 2004). Other circuits also
reject Defendant’s interpretation. See United States v. Flores-Sandoval, 422 F.3d 711,
715 (8th Cir. 2005);3 United States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005)
(“Because Navarro-Diaz could simply be reindicted for the same offense, suppressing his
identity would have little deterrent effect.”). These cases rely on Justice O’Connor’s onpoint, oft-quoted analysis in Lopez-Mendoza, 468 U.S. at 1046-47, which Defendant
derides as an “allusion in dictum” (Appellee’s Br. 37). The Government believes that the
Supreme Court’s analysis trumps case law that has been distinguished by the circuit that
issued it.
Defendant argues that the category of identity evidence is difficult to delimit
because fingerprints, DNA, and witness identifications could serve multiple evidentiary
purposes. (Appellee’s Br. 35 n.12.) This assertion fundamentally misunderstands what
“identity evidence” means. Asking, “Who are you?” is different from asking, “Are you
the person who committed X crime?” Identity refers only to evidence used to answer the
first question. The Supreme Court made this distinction clear in Lopez-Mendoza by
requiring the Government to establish both identity — who the suspect is — and alienage
Defendant’s attempt to distinguish United States v. Flores-Sandoval, 422 F.3d 711 (8th Cir. 2005), by
speculating that Flores-Sandoval could have escaped re-prosecution had he not consensually given his
identity to an immigration official (Appellee’s Br. 36) is unavailing. The Eighth Circuit itself stated that
the government could issue a detainer for Flores-Sandoval and re-charge him. 422 F.3d at 715.
3
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— the suspect’s status in the country — before ordering deportation. See LopezMendoza, 468 U.S. at 1039. In immigration prosecutions, like in other criminal
proceedings, the purpose for which evidence is used can determine whether it is
suppressible. See United States v. Havens, 446 U.S. 620 (1980) (rejecting suppression
for evidence used to impeach testimony).
C. Defendant Cannot Suppress Identity Evidence Obtained Through Routine
Booking.
1. The Procedural Order Does Not Prohibit Consideration of the Routine Booking
Exception.
Defendant Cruz-Sanchez claims that the Government’s invocation of the routine
booking exception violates the procedural order by “assum[ing] that the evidence was
obtained legally.” (Appellee’s Br. 39.) The procedural order seeks to prevent the
Government from contesting the illegality of the search, not to foreclose consideration of
exceptions to the exclusionary rule. Routine booking, like the broader rule exempting
identity evidence from suppression, is an exception to the exclusionary rule and not a
rationale for legality. It is thus within the Court’s procedural order.
2. This Court Should Apply the Routine Booking Exception.
Defendant ignores the Government’s argument that this Court should apply the
routine booking exception because Defendant inevitably would have been booked for her
drug crime. Although neither of the two circuits that have considered this issue have
adopted this rule,4 this Court should follow the Supreme Court’s guidance and suppress
Defendant is correct that the Eighth and Tenth Circuits agree that “evidence has been obtained ‘by
exploitation’ of unlawful detention even when the detention is not for the sole purpose of gathering
4
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evidence obtained during routine booking only when arrests are made “for the sole
purpose of obtaining” identity evidence. Davis v. Mississippi, 394 U.S. 721, 727 (1969).
Defendant’s position — that evidence obtained during routing booking should be
suppressed if there is any residual investigatory motive (Appellee’s Br. 40-41) —
suppresses too much evidence and ignores the deterrent purpose of the exclusionary rule.
It would be counterproductive to deter booking through suppression since police who are
obligated to book a suspect are not guilty of misconduct.
CONCLUSION
For the foregoing reasons, as well as those in the Government’s opening brief, this
Court should reverse the Ames District Court’s order granting Defendant’s motion to
suppress.
evidence.” (Appellee’s Br. 40 (quoting United States v. Olivares-Rangel, 458 F.3d 1104, 1115 (10th Cir.
2006) (citation omitted)).) The Government’s opening brief misread Olivares-Rangel because that court
claimed that the inquiry should focus “upon the purpose for an illegal arrest and subsequent fingerprinting”
in order to “effectuat[e] the underlying policy of the exclusionary rule.” 458 F.3d at 1114. The
Government apologizes for any confusion this mistake may have caused.
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