too far from here just off of ninety four the issue before the court is that the duration of the traffic stop was on reasonable therefore rendering the seizure on reasonable as a predicate question to that is the issue of whether or not bettis has standing to challenge that search because he was an authorized driver of a rental vehicle the authorization coming be from the authorize renter of that vehicle when i say authorized driver i want to make clear that was not from the rental car company that was from the renter that's the issue i would like to focus my remarks on this morning leaving five minutes for rebuttal the established eighth circuit precedent in the cases of muhammad and best are controlling on this issue those decisions are entirely consistent with the united states supreme court decision in knight states versus byrd the result of which that is if a driver of a rental vehicle is unlawful possession of that vehicle then they have standing to challenge the search of that and under best and mohammad lawful possession includes when you have the permission of the authorised renter to drive that car and that's what mr bettis established in this case the testimony in the findings of the district court both the magistrate judge and and judge wright were consistent on that applying the circuits clear law now the government is taking the position that there was no reasonable expectation of privacy because  daniels that's betis as wife was a straw man that this was in fact a fraudulent rental because basically the government argues she was in on the drug dealing and knew that he was going to be using the rent a car to drive drugs back from chicago and this was all a fraud upon the rental car company that's an interesting argument but it's not supported by any factual findings below the district court findings were in essence that mr  not an authorized renter and that he did not have a valid driver's license and that ms daniels used a false address to rent the vehicle now as a matter of fact i think the record shows that the false address wasn't all dressed it wasn't her present address it was the address on her driver's license but be that as it may well except the magistrate's terminology false address but there's nothing of those facts those for the findings by the district court that show that daniels was a straw man for faddists there is nothing in those facts that show that bettas was not unlawful possession because the entire rental was inhere the vehicle and did the passenger have a driver's license the facts tell us anything about the status of the passenger to answer the driveway's of questions the facts  silent on that we don't know whether or not she was an authorized driver i think we can speculate why the relationship between the passenger in the driver and she may have banned the other woman so to speak  ms daniels certainly wasn't aware that she was along for the ride but again i don't think that the passengers relationship to bet us is anything more than  his statement she was a friend that's all we have but ms daniel's testimony as to her rental of the vehicle was clear she rented that car for her own purposes coun in your view does it i mean does it ultimately matter if the record supports the straw man argument we have we i don't believe we've address that directly my recollection is the bird court that there might be some sort of straw man situation where the entire possession would be rendered unlawful the possession of the rental vehicle i think the rental of the vehicle itself but there's no evidence in this case for example from the rental car company there was no representative saying all right given these facts i can say now post facto that the entire rental was void we never would have rented to daniels there's nothing like that in this case what you have here is she was renting the vehicle for her own purposes she was letting bettis drive her personal vehicle but when he went out of town could for this funeral because she didn't want to put miles on mileage on her personal car she said take the rental car there was nothing though she may have been involved on a peripheral basis she was acquitted of that drug charge in the past there was nothing showing she was involved in this drug dealing at that time also there was no finding that her acquisition the vehicle was fraudulent again there was no evidence introduced at the district court no finding nor any finding by the district court that her using that old address render the entire rental fraudulent that the rent a car company went have done that and byrd focuses on whether or not the possession itself is lawful or not and i think the government's conflation here is between the theories or the concept of of possessing a motor vehicle and operating a motor vehicle you can possess something and possess a motor vehicle lawfully but you can operate it unlawfully but it's under the  standing analysis it's the law for possession that this court must focus on and did focus on in bed and best rather than how the vehicle was operated remember in best when this court remanded to the district court for determination of whether or not the authorised renter gave best permission to drive the vehicle it knew that best had a suspended driver's license so he was operating best was operating that motor vehicle  did this court say well just because of that we don't need to re man because we're going to find that it was on lawful operation therefore he can't have standing no that was not it so i think and again i think that's consistent with th court's in the supreme court's analysis of cases where an owner of a vehicle is stops and they might have a suspended or revoked driver's license well if an owner of a vehicle doesn't have a valid l they're operating it unlawfully but that does not take away their standing to challenge that arizona versus gant united states versus kennedy so there was no evidence that this car was  being operated in contravention of the rental agreement we don't have that testimony and to the extent there might be any breach of contract and bird talked about this extensively a contract between a rental car company and the renter are those are matters of allocation of risk you don't drive a car off road you don't drive a car beyond a certain geographic area because there are allocating risk but allocation of risk is not the same and it doesn't pertain or apply to a possession analysis so there is standing any questions of standing i think would have to be determined by every man to the district court  which of course would only arise if this court agrees with me that the district court erred in denying the motion to suppress and i ask that you do find that and in very short summary the here officers had information that a car was rental car company was coming back at us was driving from chicago to minneapolis they suspected there might be hair when in the car they did not have probable cause to stop the vehicle the reason the vehicle was stopped was for traffic offenses once the officer the trooper encountered betis he developed probable cause on the scene based on an odor of marijuana and consistent statements between the driver and passenger and other and isha he took that canine around there was a positive alert dog went inside went to the source of the order which was the center counsel and detritus of marijuana was found the officers federally conducted a roadside search approximately an hour forget the exact time but it was a thorough search at the road at least two troopers were there at that point after the search whatever probable cause they had was dissipated it was gone the officers had nothing more as a result of the search that gave them probable cause then to continue the detention which is exactly what happened when they drove it from the scene to the hopkins garage  for further examination another dog sniff search and then later the search pursuant to a warrant and because probable cause had dissipated at the roadside there was no probable cause to continue the detention to continue th party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief will counsel what is the record evidence establishing the straw man theory the record evidence is that she had been renting a series of cars for him this wasn't the only one like it wasn't bird there was a series of cars over months she knew he was a twice convicted drug dealer she'd actually been charged in one of the cases where them although she was acquitted so she knew well that he was twice convicted she knew there'd been two search warrants at the home they shared together where heroin was found she knew he was unlicensed that's important because the fence was trying to say that because she gave him authorization to use the rental car that's all that's required but what she was doing was she was authorizing to commit a crime i mean supposed is there evidence of that knowledge but he was unlicensed so the crime you're talking about is the driving without a life well there's two crimes i mean the big crime is he authorizing him to use a car to go to chicago to go there or government's position that any time say a spouse as an expired license and the other spouse and the e u know the situation here i mean that the expectation of privacy goes away because someone doesn't have a driver's license in that case it seems i'm not saying it's right it strikes me initially as is problematic well suppose a situation where the wife watches the husband down it doesn't beers and knows that he is dead drunk and then authorizes him to go drive her car without authorization be valid such as to confer additional rights on the husband that not otherwise exist my argument is no such authorisations ought to be deemed void as against public policy so when she in this case authorizes him to commit a crime by driving her car without a license that authorization ought to be deemed void as against public policy and it ought not to confer additional rights on mr bettis i e standing that he would not have had absent the authorization but let me ask you this if if we rule for the government on the merits on the probable cause issue are we required to address the standing issue no you're not required to the district court could have bypassed standing as well and gone right to the m that happens a lot but the reason i'm stressing it in this case is because byrd changes the landscape prior to byrd all that one needed to do was bring in someone to say that i let the suspect use my car whether it's a rental car private automobile bird says no though that bright line test we don't think that's a good bright line test we think it's a more nuanced  well they didn't explicitly do so and i agree that their comments were dicta but they did remained in that case for the government to pursue these avenues and i think it's important for this court to give some guidance for ranter of the vehicle allowed mr bad as an unlicensed driver to operate the vehicle then he  by virtue of that he's not no longer within the category of people that would would have saying that that's one of the reasons but let me just flesh that out a little bit i suppose we have the same pat fact pattern but ms daniels had driven him to chicago and back and then they got stopped but she's driving mr bettis as a mere passenger in someone else's car would have no standing to challenge the search so the anomaly is because he violates the contract and because he violates the law by driving the car himself as an unlicensed driver now he's better off than if he hadn't by law that later those two things i think that's an anomalous result but getting back to the question of fraud there was fraud in the inception of this rental because he admitted his daniels admitted at the motion hearing that one of the reasons he didn't put bettis his name on the rental contract is because they would charge or more so what was she trying to do she was trying to defraud the rental company i don't want to pay more i want to pay less and she was renting from payless so i guess that's appropriate so that's as long as it standing or a recognition of you know something it can to kind of a property a property vehicle as a as a piece of property and who has who has some interest in it sufficient to give them standing right when it when a search is is conducted and so we look at will who who was authorized to legally have possession of the vehicle so the company of the company owns the vehicle they gave temporary permission to ms daniels to use it but not to anyone else and if they had told the truth miss daniels had told the truth when she went in to rent this car oh by the way i'm going to let my husband use it and oh by the way he doesn't have a license there's no way the company would have agreed to that so what mrs what the defens is that ms daniels can confer a right on her husband to use the car that the rental company never gave her in the first place well if she had told the rental rental company that it was going to be used to transport drugs i do think that would have remitted not to know as part of the fraud it is that the law that if the if the if there is misrepresent misrepresentation to the rental car company then yeah is that the law i don't think it's the it's the law in this circuit right now which is why i'm pressing this issue up till now it's just all is as if the law anywhere that if the if the if the renter of the vehicle rents it for an illegal purpose eliminates an argument of standing for anyone that subsequently drives the vehicle including the rainer that's the argument i'm making that's the argument that i believe but is that the  counterfeit identification card and a credit card in the name of somebody else and that was enough for fraud you know just by itself and here we have much more than that mention as i said she committed fraud because she wanted to get a lower price council w when the bird court is discussing this issue and it doesn't decided you know the the issue that they're working with is on the one hand the stolen car right and the court raises the question here about well it may be it may be that someone who engages in this straw man conspiracy rises to the level of essential stealing the car crypt you're talking about giving the car to someone who doesn't have a driver's license that strikes me as a very different not rising to the level that scream court was just commenting on of similar to stealing the car would be giving  car to someone who doesn't have a valid driver's license so it's a continuum on the one end we know that just violating the contract that says you have to be an authorized driver isn't enough to defeat standing on the other hand if it's a stolen car you absolutely don't have standing and everything else in the middle is a continuum but let me remind you that the burden is always on the defendant to establish standing it's not the burden on the government to negate it so what i'm proposing is what what this court do is issue a ruling that says that post bird it's not enough just to come in and say that i had permission from the renter to drive this car there's got to be it's got to be valid permission it's got to be permission for a legitimate reason and it's up to the defendant to come in and prove that the permission that there was no fraud in the inception that the rental company wasn't defrauded and that would include proving that the person i'm going to loan the car to is someone that the rental company would have let me loan the car to if i told them about it and under a test like that this defendant could not establish standing because his wife admitted that she knew he was unlicensed number one didn't tell the rental company that number two she admitted she deliberately didn't put his name on the lease because she'd have to pay more so she admitted to defrauding the rental company in two ways and standing ought not to be automatically granted just on the basis of her coming in and saying well i gave him permission to use the car that shouldn't be whether you you can affirm on any ground you could say that based on your denotable rule review of the record and the admissions that ms daniels made at the motions hearing that in your judgment there's no standing here you could do that or you could just go directly to the merits and affirm on that ground but i really think there ought to be some guidance to the lower courts in the future post byrd and kind of warning defendants that it's not enough anymore just to bring in the renter to say i authorize this person to use the car counsel what about the second search but what's the primary what's the principal reason that th search was constitutional because the first search was insufficient it was done on the side of a busy freeway i ninety four at rush hour in gathering darkness that had to be done by by flashlight and both the magistrate judge and the district court judge said that they couldn't do a thorough enough search it was reasonable to impound that car and take it to a garage where you could do a more thorough search and this procedure is totally authorized by this court's decision in the vero mendez case our facts are even better because you know there are a mendez this court allowed a second search after the vehicle was removed to another location even though that second search was without a search warrant in this case the vehicle was removed to another location dog was run by at the next day still alerted positively to the order of narcotics coming from that vehicle and then the agents took the extra precaution of going and getting a search warrant the search warrant which fully disclosed the circumstances including the prior search was authorized by a judge so even if you were to conclude that there probable cause was lacking the leon good faith exception would kick in but that probable cause was not lacking there was far more probable cause here to continue the search then there was an oliver mendez because we showed at the motions hearing that the investigators knew all about mr bettis his past drug trafficking he was twice convicted they knew is ammo was to go to chicago and bring heroin back in cars and when they stopped him first thing you did was give a false name second thing that happened is that he and his passenger gave mutually inconsistent stories about what they were doing in chicago and they find marijuana in the car marijuana is often used to throw off the drug detection dogs because it overwhelms the dog senses and i could go on but i only have three seconds left and the point is that there was ample probable cause to impound this vehicle mr  not infringed when the empowerment occurred because they couldn't give him the car back anyway he wasn't authorized driver and he didn't have a license so they couldn't get the car back to him they had to impound many many years in determining issues of standing or what more i think properly does a litigant have a privacy interest in the area searched and the problem with the government's argument is  while they ask for clarity of this court what they're asking you to do is basically blow up the well established law and put courts everywhere in a state of confusion and put us on a slippery slope where we don't know where we're going and what i mean by that is for example if if the government's argument is that the operation of the vehicle that's unlawful in other words the operation of the property or the way the property is used to somehow on lawful does that take away standing now now bird looked to an apartment renter and terms of its analysis and let me use that as an example if you have somebody in a who has got an apartment and they have an overnight guess who has happens to be a registered sex offender well that sex offender maybe not somebody who could qualify for the lease themselves but would anybody question that that sex offender because they're registered or rather an off authorized overnight guest would have standing to challenge a search of that apartment they they would absolutely even though they might not be able to rent the apartment themselves or maybe they were using the apartment for an improper purpose but they would have standing and the problem with the government's argument is judge to up on some of your questions if for example the owner of a motor vehicle gave the keys to somebody they knew were drunk or gave the keys to somebody who knew they didn't have a driver's license in that case we're not dealing with a rental situation we're dealing with the owner but under the government's theory the person that got the keys who didn't have a license even though the owner gave them permission they wouldn't have standing because the operation would be unlawful and that case counsel indicate he could go on and on and on but i think what i would focus on is all of those facts that the law enforcement gained to create probable cause to search the vehicle this was it wasn't just a cursory search this was by at least two two agents and if the court has the surveillance video available or the dash cam video you'll see if it was they they tore apart everything and they didn't find any drugs and what distinguishes this case from all of our mendez is in that case the first search they had in disha that there was a hidden compartment so in other words they had a dish of that drugs were somewhere else and that vehicle hidden away in this case the records show that absolutely did not happen trooper hagan who testified very experienced ripper was looking out for you know how much time left but didn't the isn't it true  as as mentioned by counsel for the government that the vehicle could not be nothing neither the driver nor the passenger could  be allowed to take the vehicle away after this search that she described was completed there that justified in and of itself the government taking or the law enforcement taking possession of vehicle removing it to another location and then eventually getting a search warrant i think as that is of that kind of kind of eliminate in necessity of discussion of the of this issue that you're talking about i think it's only partly true because we don't know with the passenger whether or not she was able to take it away the officers never made any effort to follow up and never asked her if she had a valid d l they never called the rental car company and because towing the vehicle or take it again i wasn't told to an impound lot it was brought to a police garage for subsequent search but could the rental car company simply have been called and say hey we've got your rental car come pick it up a law enforcement had other options available then taking in it's a law enforcement custody so i think that the knesset the i mean this was a continued during the duration was continued to  appointed counsel in this case under the criminal justice act