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United States v. Bonner

United States District Court, D. Oregon

August 15, 2019


          Billy 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 of America.

          Ruben L. Iniguez and Ryan Costello, Assistant Federal Public Defenders, Office of the Federal Public Defender, Of Attorneys for Defendant.



         Teondre 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 granted.


         A. Fourth Amendment Generally

         The 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).

         An 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.

         B. Consent to Search by Third Party

         One 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. at 164)).

         Matlock 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 suspected”:

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).

         The 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).

         The 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.

         Finally, “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.

         C. Inevitable Discovery and Inventory Search

         The 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).

         When 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.”).


         Based on a preponderance of the evidence, the Court finds the following facts:

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 ...

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