motion to suppress in the dial of the motion to suppress by the district court as i believe that there is as there is an ever expanding and of very careful look at the expectation of privacy interests by by this court and all that circu s there should be an equally careful examination of the expanding power that the police have to encompass searches that are well beyond the scope of what would be reasonable in this particular behavior talk about the  expectation of privacy i think rather addressed days that kennedy had given that he was not an authorized driver of the vehicle that's group he was not an authorized in fact he was given permission by his girlfriend courtney fields contract which excludes other drivers as one of your argument your argument is a property re a contract based argument no assertion that had they had the rental company had a had a more encompassing statement in the documents saying and if you're not authorized you're an authorized her case would be different i'm sorry no no you are in fact that's what the government argues in defense or in in counter to the argument that he had standing the filing of the law court specifically because the issue of standing which is obviously the expectation of privacy is one of relationship and given the way the courts have been analyzed the relationship they look at several factors one test obviously is the court knows the the circumstances test is the driver a lessons driver does he have permission from the authorized driver to use the vehicle when you say from the authorized driver it's true that you have a couple of circuits that seem to lean your way on that but you have other circuits that say pretty expressly i think that the only body that can give authorization to drive a car is the person that has the property owners whole idea of authorized drivers on a document a nobody well at all i think what it does though your honor it allows for an inquiry fact based inquiry into the relationship between the driver and the authorized user of the vehicle so for example in the cases are either being counted in the authorize use or being fields fields absolutely so absent that kennedy gets his expectation of privacy from fields who rented the car kennedy gets his expectation or honor of privacy based of the circumstances which would be the relationship you had with the authorized driver the period of time in which he drove the vehicle which always factors are ones which the courts have looked at as a way to analyze on a case by case basis applying the totality of the circumstances case whether or not there is a eight expectation of privacy when it's all rather i'm sorry would it matter whether or not and if he knew that the car was rented and that he was not an authorized driver i think there'd have to be something on the record that indicated he was not an authorized driver from the one who was authorized to use the vehicle i just wondering about this idea of transferring it seems like it's transferring an expectation of privacy  if eels can transfer that right he by allowing him to drive i was simply to do the same thing well i think that's that's one way of looking at it i think another way of looking at it is what it really is is it's in encompassing expectation of privacy vessels whether it's an apartment whether it's a house or whether it's a vehicle that the person who is the subject of the search or seizure in this case because the initial question is the seizure is in fact protected because  relationship to the person who gave authority so for example that would include anyone who would give authority for a person to let's say sublet an apartment in this case it's carr so what about from the standpoint of the landlord or the owner of the owner of the rental company i i mean doesn't that factor into the equation it has factored in i think the cases in which the government sites well it factors in because i think that there's a way in which on each case to analyze the relationship between the driver and the  out this question once the vehicle is in how did as that terminate the expectation of privacy i don't believe it does i think i think under these facts if you look at the baker case the question of borrower as opposed to any fields or not once the owner of the car said hey take the car why can't they take the car and conduct appropriate because you have an intervening contract in the contract is with courtney fields and her mother she was authorized to use the car at that point so now the contract matters well it matters because the government's argument matters it matters because you have to still examine the relationship rather as as to my client a problem between saying well that contract stuff then really matter all that much when you talk about authorized drivers bu determinative if the owner of the vehicle wants to step in and tell the police go ahead take it you know i think i think the police have an obligation at that point to find out whether or not the car was ever in the north a possession of the person that was arrested in th me the owner of the vehicle has red is responsible to say well let me get in touch with miss field and see who she might have barred to and there are a geisha of our contract i think it's i think it's the position it would be no different than in fact if someone was leasing an apartment and we i'm sorry i'm sorry to interrupt you because the case of south dakota the opperman supreme court case for twenty  eight indicates that the police routinely impound their goal in order to protect the owner's property well that being the purpose of him to protect the owner's property and you add to that the owner asking that permitting the police explicitly to impound it you keep going using the expression to tell of the of the circumstances but we have to zero when where we have the intervention of the armor that that it terminate by the appearance of the owner however once you get the factor of them how much involved you have a situation where i haven't heard  difference does it make what the police officers have to their mind if they succeed in speaking to the owner of the vehicle and the owner of the vehicles as i watch you take that into custody i because i think it's based on the facts specific as to the information that was provided to the owner at the time and whether or not there was any inquiry as to whether the rental the let me see of the vehicle was contacted or had parked that car in a legitimate location on the street without parking violation there's no allegation that there's any community care taking function necessary at that point look at the community care taking out of it for a minute just thinking about it in terms of somebody owns the car and the owner of the car says take it into custody your argument is that the police couldn't do that lawfully if in their mind they're thinking well what that's what we want because we really want to search what subjectively in their mind makes that unlawful well i well to the best answer your question my position is that they couldn't get a warrant they had no probable cause to search that vehicle so what they did was they contacted the it please the court good afternoon your honors based upon the questions that mr had snecker was facing i think the court is seeing this very much the way the government did at the time that the district court found that there was instance the police could have and should have found out what was going on with their car in fact they were watching it and the person who was the authorized driver arrived at the scene tried to get in and would shoot a way but that the this is in essence like the dugway case and we should we shouldn't tolerate that well seems to be the pitch that does seem to be their pitch and this is not like the dugway case in the dugway case you had an incident where the ended the two individuals were stopped they were actually in the vehicle together the girlfriend was the passenger in the car and she was also the owner of the car in this incident we have a situation where mr kennedy is driving a car that the c i that saw him earlier in the day said i've never seen him driving this car before i mean he's got other cars if this this is not one of those cars he describes the car when he is arrested two and a half blocks away from the car he has in his hand a key that says call rental car on it and describes a silver camera like goes to the to the empowerment doesn't it doesn't it not we do not have the baker circumstance here because of what happened subsequent and that is that the police do good police work in this case they take that harkey and they they tracked down this small rental agency this hulk rental and they actually call the owner of the business and they say we have a key to your car and they'd check and say yes we only loaned out one key to the car police impound our car why does the fact that the cop requested that the police secure impound the vehicle necessarily negate kennedy's expectation of privacy at the time that the seizure occurs mr kennedy's rights have been negated because the owner of the car has said take my property back mr kennedy is in custody mr kennedy cannot go and retrieve that vehicle at that time the police don't really even know about courtney fields at the time as judge jordan mentioned when miss fields comes to the vehicle the record is clear that miss fields does not identify herself as someone who has some control over this car she's just one of three i don't and identify people who come up and look in the vehicle well the they know how to get ahold of mr cole because they do i mean a pretty simple thing to call mr cole and say hey who's the who's the the person who's rented this vehicle from you we need to get to them you know it's one minute phone call right why can't they just talk because at that point in time they'd already called culp rental and cope rental had said please impound the car it's not for the police to decide the contractual issue of who the car will be released to will it be released to miss field will it be released to call parental the police are supposed to take that vehicle off the street because they've arrested the only person who had a key to that car and not leave it on the on the street when the owner has asked that it be taken and if so does your does your case here depend upon the finding or a determination that there really needed to be a community caretaking step that there really needed but that car needed to be taken off the street right then no i don't think that my case does rely upon that my case was upon the fact that at the time of the seizure in this instance mr kennedy's rights had already been extinguished whatever rights we may say that my gosh you because of the seizure is that because he was not a driver vehicle no it's because culp rental car the actual owner of the vehicle asks the police to impound the vehicle ok so your case your home the heart of your case is look whatever the arrangement called might had with other people cope owns the car once the owner says get that car off the street please take it into impound that that's sufficient basis for the police to act on that and then pursuant to the empowerment to search is that right yes yes that's exactly right and the police need not become embroiled in the issue of whether or not miss field still has some actual relationship with mr cole and who eventually the car would be released to the police do excellent work in this case they actually find the owner of the vehicle the rental contract the only thing that would have told the police that courtney fields had some connection to this car was inside the locked vehicle and so the police didn't have the right presumably mr cole has a copy of the contract and knows how to touch with oh yes here you're saying that that doesn't matter anyway because it's not there that's not their fish to fry whatever mr culp's got go on in the way of a contract with ms fields that's for him to work out it's enough for them to get a hold of the owner and if the owner says impound that does it is that right well you know i think i think the court misunderstand what i'm doing is i'm i'm walking through what the police did at nine o'clock that night when they arrested mr kennedy the only in from a and they have is they have the culpeper and so they call culp rental car and colp says please impound our car and they do not at that point have the contract cult i'm sure had the contract at that point in time i'm sure they were checking that information but the police have no obligation to say well do you have an authorized renter of this car they went straight to the owner and the owner said please impound our vehicle from that point forward they again acted very reasonably in that they they begin an inventory search and once they begin an inventory search they actually stop when they find what they believe may be contraband and they develop probable i think you're here arguing here because what we have here is a question of expectation of privacy and assume for the sake of argument that he could be considered a bar or that's an assumption that he then had an expectation of privacy not all when did that expectation of privacy cease that expectation of privacy would have ceased at the time that he was arrested and the police contacted the owner that is when his you followed my question i was suggesting that assuming that he did have a right of privacy is terminated when the the act of impoundment occurred because you don't have a right of privacy where are the police legitimately through the through the intervention and direction of the owner to develop the fact that they have a vehicle on the street and they in fact to go to the owner who asks them to impound the car and they then impound the car so the first time that you have a seizure is that point of impoundment and once you get there you are already have the owner of the vehicle having said we don't want mr kennedy to have our property he's not authorized to have our property and so we asked you to take that car into your custody and we'll come and get it for you  expectation of privacy when we certainly have cases in several circuits that indicate that that's the case that if you have some such some type of instance where the borrower has in fact given permission to someone else then in those instances sometimes there could be but no i don't conceded in this case and the reason is is in our record here mr kennedy was not did not have a valid driver's license and he was doing something illegal with the car is it part of the record he was an unlicensed drivers yes it is your honor him then licensed driver have an expectation of privacy in any vehicle i would think not if he's if he's driving it and regardless of the of the seems that you would not and we certainly don't concede that point for their reasons in this case the fact that we have those additional facts that he's not he doesn't have a valid driver's license and he's in a position where he's actually used the vehicle illegally if you want to get into the expectation of privacy it disappeared before the search occurred here so ferreting out figuring out whether there was an expectation of privacy is a bit of an academic exercise in this case isn't it yes ye your point that if you if you are not to take the bright line test of the fourth and fifth intent circuits that someone who has who rents a car from a rental agency can't just willy nilly give it over to someone else and that person then has an expectation of privacy defendant had a license and authorized driver's permission to use the car cording to the police was driving it earlier that day therefore the fountain has standing to contest the seizure and trial of this case when mr culp testified there is something in the record and your honor i'm looking for that now that states that he did he had in fact a did not have a valid license and that is found at appendix page two sixty two mr culp is reading from his notes that were taken that evening at line four contacted sergeant bryce it says contacted me concerning incident with the rental car i requested sergeant bryce to secure the car driver did not have a valid driver's license which is the reason i would have wanted to far grounded so we do have those facts in the trial of this case  yes your honor and i think that that the that we are able to rely both upon facts that that came out at the trial as well as facts that came out at the suppression hearing and i know you are i'm position in this case starting as to when if any time the kennedy had an expectation of privacy honor the government's position is that he never had an expectation of privacy he got this from his girlfriend he was not on the right on track so it's our position that he really never did but if you were to find that somehow through the authorization granted by mr fields that he somehow did develop some expectation of privacy in the vehicle that that expectation of privacy was extinguished prior to the police action of the seizure would you say that that was a softball i threw out and in behalf of the government when i was questioning your friend so sometimes questions asked by the i assume oh my my pictures will be hard balls just in response i think that what i'd like to do is put this in context because i think there is a it concern by the court obviously that the employment becomes as authorized by the owner of the vehicle in this case the rental agency becomes the significant fact that is to be determined to determine whether or not there's an expectation of privacy or not is this to again as i said before the renter the l correct the police don't impound apartments now you don't check to see whether you've got a license to drive an apartment and like all have the habit of going to apartment you know just assuming that well because you or not assuming saying you're a guest here therefore you don't have an expectation of privacy those those things are different when you're talking about it welling than when you're talking about an automobile and ever since rockets at least that's been pretty clear it is absolutely clear but what the courts have honest never sidewalk two blocks away from the where the arrest occurs there must be some connection nexus for the police to go in and you could take this that and say we're i'm sorry your how about the circumstance of the baker case in that car and let's say the owner goes inside and finds all kinds of stuff of course police it's a very good fact pattern in support of the government's argument with one important intervening fact which is that the government intervened both  government intervention saying the stand that i might my point was more does not the owners retrieval of the school cut off expectation pride's that didn't happen in this case that's my position my position is that what happened in this case was there was not that next step that would be is that any different than the police calling him and saying your car's on the street what you want to do with it he says i'll come get it because it's a functional matter is that the fact that the government made a phone call that makes it unlawful what happens next oh it's absolutely more than just a functional matter because the police as i said before use this as a pretext to impound the car so again it's to what's in a hurry up i'm an actor's mind well it's more than that it's what's the what are the facts show what were the steps taken to ensure that the expectation of privacy whether recognized or not in this context was there an attempt to say we're going to recognize that there's a legitimate expectation of privacy i want to make sure i got you right you're saying that police didn't have subjectively in their head we want to search this car if they had just called mr cole with with nothing more than that hey your car's on the street what do you want to do with it and then he said take it in custody that would be i have been a legitimate thing to do well at least you know i and that's not what i'm saying what i'm saying is that in this under these facts what the police did in the situation was attempts to override and undermine the expectation of privacy that my client had as it were of that vehicle by call what they were attempting matters how it played out objective which is i think what the what the case of the guy says which is essentially you can't use it as a pretext you can't use the community caretaking function in order to seize a vehicle in an effort to research it