United States District Court, D. Oregon
J. Williams, United States Attorney, Leah K. Bolstad and
Thomas H. Edmonds, Assistant United States Attorneys, United
States Attorney's Office, Of Attorneys for United States
L. Iniguez and Ryan Costello, Assistant Federal Public
Defenders, Office of the Federal Public Defender, Of
Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, DISTRICT JUDGE.
Antonio Bonner (“Bonner”) has moved to suppress
all physical evidence seized by, and related statements made
to, officers of the Portland Police Bureau during their
warrantless search of the rental car that Bonner was driving
on August 10, 2018. Bonner was alone in the rental car,
driving with the permission of the renter but without the
authorization of the rental car company, when he was stopped
by police officers for a traffic violation. The Court held an
evidentiary hearing on April 24 and 25, 2019, hearing
testimony from four Portland police officers and two
employees of Dollar Rent-a-Car (“Dollar”) and
receiving related exhibits. The Government opposes
Bonner's motion, arguing primarily that Dollar, as the
owner of the rental car, consented to the officers'
request to search after being told by the officers that
Bonner was in possession of the vehicle. Dollar informed the
officers that Bonner was not an authorized driver under
Dollar's rental contract, and Dollar requested that the
car be repossessed. The Government also argues that after
Dollar requested that the officers impound the rental car and
return it to Dollar, the inevitable discovery doctrine
independently supports denying Bonner's motion. For the
reasons that follow, Bonner's motion to suppress is
Fourth Amendment Generally
Fourth Amendment protects individuals from
“unreasonable searches and seizures.” U.S. Const.
amend. IV. “Few protections are as essential to
individual liberty as the right to be free from unreasonable
searches and seizures.” Byrd v. United States,
138 S.Ct. 1518, 1526 (2018). Whether an individual has a
Fourth Amendment privacy interest depends on whether that
individual possesses a reasonable expectation of privacy in
the area searched or the items seized. California v.
Greenwood, 486 U.S. 35, 39 (1988); Katz v. United
States, 389 U.S. 347 (1967).
individual may have a reasonable expectation of privacy in an
automobile, Delaware v. Prouse, 440 U.S. 648, 662
(1979), although the Supreme Court has acknowledged that
“there is a diminished expectation of privacy in
automobiles, which often permits officers to dispense with
obtaining a warrant before conducting a lawful search.”
Byrd, 138 S.Ct. at 1526 (citing California v.
Acevedo, 500 U.S. 565, 579 (1991)). The Supreme Court
held in Byrd, however, that a driver of a rental car
may have an objectively reasonable expectation of privacy in
the car, even when he or she is not listed as an authorized
driver on the rental agreement and is driving the vehicle
alone. Id. at 1531. When an individual has a
reasonable expectation of privacy, law enforcement may not
conduct a search absent a search warrant, consent, or some
other exception to the warrant requirement. See Kentucky
v. King, 563 U.S. 452, 459.
Consent to Search by Third Party
exception to the warrant requirement is when a search is
performed with valid consent. See United States v.
Matlock, 415 U.S. 164, 165-66 (1974). If a third party
consents to the search, the government has the burden of
establishing the effectiveness of that party's consent.
Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).
“The Supreme Court has ruled that consent to a search
must be made by an individual with common authority over the
property.” United States v. Kim, 105 F.3d
1579, 1582 (9th Cir. 1997) (citing Matlock, 415 U.S.
explained that “common authority” is not
synonymous with property ownership:
Common authority is, of course, not to be implied from the
mere property interest a third party has in the property. The
authority which justifies the third-party consent does not
rest upon the law of property, with its attendant historical
and legal refinements, see Chapman v. United States,
365 U.S. 610, (1961) (landlord could not validly consent to
the search of a house he had rented to another), Stoner
v. California, 376 U.S. 483 (1964) (night hotel clerk
could not validly consent to search of customer's room)
but rests rather on mutual use of the property by persons
generally having joint access or control for most purposes.
Matlock, 415 U.S. at 171 n.7 (citations shortened).
The Supreme Court has further noted that
the “right” to admit the police to which
Matlock refers is not an enduring and enforceable
ownership right as understood by the private law of property,
but is instead the authority recognized by customary social
usage as having a substantial bearing on Fourth Amendment
reasonableness in specific circumstances.
Georgia v. Randolph, 547 U.S. 103, 120-21 (2006). In
Randolph, the Supreme Court described facts where
“no common authority could sensibly be
A person on the scene who identifies himself, say, as a
landlord or a hotel manager calls up no customary
understanding of authority to admit guests without the
consent of the current occupant. See Chapman v. United
States, supra (landlord); Stoner v. California,
supra (1964) (hotel manager). A tenant in the
ordinary course does not take rented premises subject to any
formal or informal agreement that the landlord may let
visitors into the dwelling, Chapman, supra, at 617,
and a hotel guest customarily has no reason to expect the
manager to allow anyone but his own employees into his room,
see Stoner, supra, at 489; see also United
States v. Jeffers, 342 U.S. 48, 51 (hotel staff had
access to room for purposes of cleaning and maintenance, but
no authority to admit police). In these circumstances,
neither state-law property rights, nor common contractual
arrangements, nor any other source points to a common
understanding of authority to admit third parties generally
without the consent of a person occupying the premises.
Id. at 112 (citations shortened).
Ninth Circuit has consistently held that a third party who
does not have “mutual use of the property” by
“joint access or control for most purposes” lacks
the authority to consent to a search. See, e.g.,
United States v. Warner, 843 F.2d 401, 403 (9th Cir.
1988) (holding that a landlord's consent to search was
insufficient even when the tenant gave permission to the
landlord to enter the premises in his absence because
landlord did not have “right of access for most
purposes”); United States v. Impink, 728 F.2d
1228, 1233 (9th Cir. 1984) (holding that consent-giver whose
right of access was “narrowly proscribed” lacked
authority to consent to a search). The cases upholding
third-party consent searches “generally rely on the
consent-giver's unlimited access to property to sustain
the search.” Kim, 105 F.3d at 1582 (citing
United States v. Guzman, 852 F.2d 1117, 1122 (9th
Cir. 1988)). The joint access and mutual use doctrine applies
in the context of a third-party's consent to the search
of a rental car. United States v. Welch, 4 F.3d 761,
764 (9th Cir. 1993).
government may also establish effective consent by means of
the apparent authority doctrine. Under that doctrine, a
search “is valid if the government proves that the
officers who conducted it reasonably believed that the person
from whom they obtained consent had the actual authority to
grant that consent.” United States v.
Arreguin, 735 F.3d 1168, 1175 (9th Cir. 2013). This
doctrine, however, is “applicable only if the facts
believed by the officers to be true would justify the search
as a matter of law” and a “mistaken belief as to
the law, no matter how reasonable, is not sufficient.”
Welch, 4 F.3d at 764-65.
“a physically present inhabitant's express refusal
of consent to a police search [of a rental unit] is
dispositive as to him, regardless of the consent of a fellow
occupant.” Randolph, 547 U.S. at 122-23.
“The significance of such a refusal turns on the
underpinnings of the co-occupant consent rule, as recognized
since Matlock.” Id. at 109.
Inevitable Discovery and Inventory Search
inevitable discovery doctrine acts as an exception to the
exclusionary rule and permits the admission of otherwise
excluded evidence “if the government can prove that the
evidence would have been obtained inevitably and, therefore,
would have been admitted regardless of any overreaching by
the police.” United States v. Reilly, 224 F.3d
986, 994 (9th Cir. 2000) (quoting Nix v. Williams,
467 U.S. 431, 447 (1984)). In some circumstances, the
inevitable discovery doctrine may apply because evidence
“would have been discovered through a lawful inventory
procedure.” United States v. Andrade, 784 F.2d
1431, 1433 (9th Cir. 1986).
inventory searches are in fact conducted, the “actual
motivations [of law enforcement] do matter.”
United States v. Orozco, 858 F.3d 1204, 1210 (9th
Cir. 2017) (emphasis in original). The Ninth Circuit
therefore requires that when inventory or other programmatic
searches are conducted by law enforcement, a court must
inquir[e] into an officer's purpose in conducting a stop
or search without reasonable suspicion or probable cause,
when such an intrusion is sought to be justified pursuant to
the administrative search doctrine, and where the defendant
has come forward with objective evidence to suggest that the
intrusion was not made for the purpose of enforcing the
administrative inspection scheme.
Id. at 1212-13. The mere “presence of a
criminal investigatory motive” or a “dual
motive-one valid, and one impermissible” does not
render an administrative stop or search invalid; instead, the
Court must determine whether the challenged search or seizure
“would . . . have occurred in the absence of an
impermissible reason.” Id. In Orozco,
the Ninth Circuit reversed the denial of the defendant's
motion to suppress and vacated his judgment of conviction
“because the objective evidence clearly demonstrates
that, but for the officers' belief that Orozco might be
carrying drugs, the stop never would have happened.”
Id. at 1210; see also United States v.
Johnson, 889 F.3d 1120, 1127-28 (9th Cir. 2018) (holding
that the district court erred in denying motion to suppress
and that officers' search and seizure of evidence could
not be justified under inventory-search doctrine
“because the officers themselves explicitly
admitted that they seized items from the car in an
effort to search for evidence of criminal activity.”).
on a preponderance of the evidence, the Court finds the
1. On August 10, 2018, at approximately 5:20 p.m., Portland
Police Sergeant Kenneth Duilio was working as the supervisor
for the Gang Enforcement Team's (“GET”)
afternoon shift. His partner, Steven Wilbon, was working as a
Sergeant and was assigned to the uniform GET. Sergeant Wilbon
was the driver of their patrol vehicle, an unmarked black
Police SUV, equipped with lights and siren. ECF 41 at 11-14.
2. The two GET officers were traveling eastbound on NE
Ainsworth Street at ¶ 15th Avenue when they observed a
tan 2018 Subaru Outback wagon. ECF 41 at 14.
3. The officers recognized the driver and single occupant as
Teondre Bonner, who the officers believed to be a
“Rollin 60's ...