by Anthony W. Accurso

The U.S. Court of Appeals for the Third Circuit held that a defendant who possessed the keys to a rental car that was rented by his girlfriend (who gave permission to him to possess the keys and operate the car) had a reasonable expectation of privacy in the car and that the warrantless search of the car by police violated defendant’s Fourth Amendment rights.

Detectives executed an arrest warrant in November 2019 for Christopher Montalvo-Flores. They seized him in his New Jersey hotel room on suspicion of involvement in a robbery. During the search of his hotel room, policemen located keys to an Enterprise rental car. When the officers took the keys, he shouted “those are my rent-a-car keys!”

Prior to searching the vehicle, Detective Abdullah Holmes called Enterprise’s regional risk manager. Holmes “advised her that the person operating the vehicle at the time was … arrested for outstanding warrants and was part of an armored truck robbery, and he did not have a driver’s license” and obtained permission from the risk manager to search the car. Officers found $35 in cash in the center console and 304 grams of cocaine in the trunk.

Montalvo-Flores was indicted for (among other things) possession with intent to distribute cocaine and violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). Prior to trial, he moved to suppress the search of the vehicle. During a hearing on the motion, Holmes stated that officers were aware that the vehicle had been rented by the girlfriend of Montalvo-Flores, Jennifer Pisciotta, and had “observed Pisciotta giving him the car.” Police were also aware that Montalvo-Flores did not have a valid driver’s license.

Montalvo-Flores filed a suppression motion challenging the search of the rental vehicle, arguing that based on his girlfriend’s permission, he lawfully possessed and controlled the vehicle and thus had an expectation of privacy in it. The Government argued that Montalvo-Flores lacked an expectation of privacy in the vehicle based on three factors: (1) he lacked a valid driver’s license, (2) he was not listed on the rental agreement, and (3) Enterprise gave its consent to search the vehicle.

The U.S. District Court for the District of New Jersey denied his motion, ruling he lacked dominion over the vehicle and thus lacked standing to challenge the search. It wrote that “the mere possession of keys to a vehicle is [not] sufficient, standing alone, to create a reasonable expectation of privacy in a vehicle owned by and rented to third parties.” After a stipulated bench trial, Montalvo-Flores was convicted and sentenced to 40 months in prison, with three years of supervision to follow. He timely appealed the denial of his suppression motion.

The determinative issue on appeal was whether Montalvo-Flores had a Fourth Amendment interest in the rental vehicle. The Court observed that the right to invoke the protection of the Fourth Amendment depends on whether there is a legitimate expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128 (1978).

To answer that question, courts rely on the two-prong Katz reasonable expectation of privacy test. Katz v. United States, 389 U.S. 347 (1967) (Harlan, J., concurring). The first prong asks whether Montalvo-Flores demonstrate an actual, subjective expectation of privacy, and the second prong asks whether that expectation is one that society is prepared to recognize as reasonable. Id. Montalvo-Flores has the burden of proving each element. See United States v. Stearn, 597 F.3d 540 (3d Cir. 2010).

As for the subjective expectation, the Court wrote there was “no question” as to this point because Montalvo-Flores was on the record as having exclaimed “those are my rent-a-car keys!” The Court explained that officers needed those keys to open the rental vehicle. Thus, it concluded that there is “no doubt” that he “believed he had privacy in the car and took steps to preserve his privacy.”

The Court stated that the answer to the objective prong was not as clear-cut as the subjective prong. The objective prong “is a fact-bound question dependent on the strength of a defendant’s interest in the car and the nature of his control over it,” and “ownership is not necessary.” United States v. Baker, 221 F.3d 438 (3d Cir. 2000). The U.S. Supreme Court has instructed that “the mere fact that a driver in lawful possession or control of a rental car is not list on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” Byrd v. United States, 138 S. Ct. 1518 (2018). A person who “lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [the] right to exclude.” Rakas.

The District Court’s denial rested solely on the alleged lack of evidence presented during the suppression hearing establishing that Montalvo-Flores “was never observed possessing, operating, or otherwise exercising any sort of control over the rental vehicle aside from possessing the keys thereto.” That is, the court reasoned that Montalvo-Flores did not have lawful possession or control of the vehicle.

However, the Court flatly rejected the District Court’s reasoning and conclusion, stating that the fact he possessed “his girlfriend’s keys, not a stranger’s, suggests Montalvo-Flores lawfully possessed the car.” Furthermore, Holmes testified that an officer observed his girlfriend exchange the car with Montalvo-Flores, and Holmes testified that when he took possession of the keys, he assumed that Montalvo-Flores possessed the vehicle.

Contrary to the Government’s view that the risk manager’s consent to search the vehicle serves as evidence that Montalvo-Flores didn’t have any Fourth Amendment rights in the vehicle, the Court explained that the risk manager based her consent, in part, on the fact Montalvo-Flores should not be in possession of the vehicle because he wasn’t on the rental agreement. That is, the risk manager understood Montalvo-Flores to be in possession of the vehicle. Additionally, the vehicle was parked outside his motel room and was not reported lost or stolen. The Court explained that all evidence “points in one direction: Montalvo-Flores had ‘dominion and control’ over the car with his girlfriend’s permission.” Thus, the Court ruled that he “had a cognizable Fourth Amendment interest in it” and thus had standing to challenge the search.

Consequently, the Court held that the District Court committed “clear error” in ruling that Montalvo-Flores never had dominion and control over the vehicle and thereby denying his motion to suppress.

Accordingly, the Court vacated the District Court’s denial of the motion to suppress and conviction and remanded for further proceedings consistent with its opinion. See: United States v. Montalvo-Flores, 81 F.4th 339 (3d Cir. 2023).  

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