PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 22-1752

_____________

UNITED STATES OF AMERICA

v.

CHRISTOPHER MONTALVO-FLORES,

Appellant

Appeal from the United States District Court

for the District of New Jersey 

(District Court No.: 2-20-cr-00080-001)

District Judge: Honorable William J. Martini

Argued June 8, 2023

Before HARDIMAN, AMBRO, and FUENTES, 

Circuit Judges

(Opinion filed August 28, 2023)
2

Louise Arkel (Argued)

Saverio A. Viggiano

Office of Federal Public Defender

1002 Broad Street

Newark, NJ 07102

Counsel for Appellant

Mark E. Coyne

Richard J. Ramsay (Argued)

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

Christopher Montalvo-Flores moved to suppress 

evidence the Government obtained in its search of his 

girlfriend’s rental car. The District Court denied his motion, 

holding that he failed to show he had a reasonable expectation 

of privacy in that vehicle. We disagree, as unrebutted evidence 

shows Montalvo-Flores had possession and control of the car 

with his girlfriend’s permission. 
3

I. BACKGROUND

a. Factual Background

In November 2019, officers swarmed a New Jersey 

hotel room to execute an arrest warrant for Montalvo-Flores in 

connection with his suspected involvement in a robbery. After 

arresting him, officers found car keys during a search incident 

to arrest. Although Montalvo-Flores exclaimed that those were 

his car keys, officers knew he did not have a valid driver’s 

license. Upon locating the car in the hotel parking lot, they 

discovered it was not reported lost or stolen and that its 

registered owner was the Enterprise Rental Car Company

(“Enterprise”). 

Officers then called Enterprise’s regional risk manager 

to obtain permission to search the car. They told the manager 

that Montalvo-Flores was operating the vehicle while involved 

in criminal activity. The Enterprise manager, noting that its

rental contract prohibits using the car for criminal purposes and 

that Montalvo-Flores was not listed on the rental agreement—

his girlfriend, Jennifer Pisciotta, was—gave officers her 

consent to search the vehicle. In that search, officers found 304 

grams of cocaine inside the trunk and $35 in the center console. 

As a result, Montalvo-Flores was charged with possession with 

intent to distribute cocaine in violation of 21 U.S.C. 

§§ 841(a)(1) and (b)(1)(C). 
4

b. Motion to Suppress Proceeding

Montalvo-Flores moved to suppress the cocaine and 

cash that officers obtained from the car.

1

 He argued that he, 

with his girlfriend’s permission, lawfully possessed and 

controlled it. In response, the Government acknowledged his 

girlfriend gave him permission to operate it. A68–69 (agreeing

that he was a “driver[] with permission of the lessee to operate 

the vehicle”); A70 (admitting that he “had permission from his 

girlfriend, the lessee, to drive the rental vehicle”). But it 

asserted its warrantless search was nonetheless lawful for other

reasons: Montalvo-Flores lacked a legitimate expectation of 

privacy because he had no driver’s license and was not listed 

on the car’s rental agreement, plus it had consent from 

Enterprise, the car’s registered owner, to search the vehicle. 

The District Court held a suppression hearing to consider the 

parties’ evidence and arguments.

The evidence elicited at the hearing largely tracked the 

parties’ arguments. Yet only one witness, Detective Abdullah 

Holmes, testified. He acknowledged that Montalvo-Flores’ 

girlfriend rented the car and that Montalvo-Flores possessed its 

keys. A151:22–152:3 (explaining that his girlfriend signed the 

rental agreement); A189:9–11 (he had the car keys). When 

officers took the keys from him, he exclaimed that “those are 

my rent-a-car keys!” A149:5–12. And, consistent with the 

Government’s position that Montalvo-Flores had permission to 

drive the vehicle, Holmes testified that, prior to the search, 

1 He also moved to suppress the evidence that officers 

seized in the search of his hotel room. The District Court 

denied the motion, and he does not appeal that portion of its 

decision.
5

fellow officers observed Pisciotta giving him the car. 

A176:25-177:3 (Q. “Prior to that[,] someone had surveilled 

Ms. Pisciotta and knew that she was in that vehicle and then 

exchanged it with Mr. Flores. Correct?” A. “Correct.”); see 

also A182: 15–21 (reading from a police report stating “Mr. 

Flores[’] girlfriend was observed by Detectives prior to the 

arrest exchanging/possessing the vehicle with Mr. Flores”). 

Holmes further submitted that Montalvo-Flores possessed and 

operated the vehicle. A179:8–12 (Q. “Probably, definitely one 

of the other members saw him operating the vehicle?” A. “He 

had possessed the vehicle at one time, yes.” Q. “Possessed it 

or operated? They’re two different things.” A. “Operated. 

Possessed.”); A180:6–10 (“I assumed that he possessed the 

vehicle, yes.”); A181:10–14 (Holmes stating that “one of the 

[officers] did see him operate the vehicle”). Also in line with 

the Government’s theory of why its search was valid, Holmes 

described how an Enterprise agent gave him permission to 

search the vehicle. He called the agent and “advised her that 

the person operating the vehicle at the time was . . . arrested for 

outstanding warrants and was a part of an armored truck 

robbery, and he did not have a driver’s license.” A151:8–13. 

After the agent gave him permission to search the car, officers 

used the keys to open it and then found the cocaine and cash 

that Montalvo-Flores moved to suppress. 

c. District Court Opinion

The District Court denied Montalvo-Flores’s motion to 

suppress, holding that he lacked standing because he failed to 

establish a reasonable expectation of privacy in the car. It 

stated that, unlike the driver in Byrd v. United States, 138 S. 
6

Ct. 1518 (2018),

2 Montalvo-Flores “was never observed 

possessing, operating, or otherwise exercising any sort of 

control over the rental vehicle aside from possessing the keys 

thereto.” A12. It noted that “[a]lthough Detective Holmes 

testified that other detectives had apparently seen his girlfriend 

exchange the car and car keys with [Montalvo-Flores],

Detective Holmes was not able to testify as to when or where 

that observation was made, or if detectives subsequently

observed [Montalvo-Flores] operating or exercising control 

over the vehicle prior to his arrest.” Id. The Court thus 

concluded that “there appears to be little evidence” he had 

“dominion and control” over it. Id. In its view, the evidence 

suggested only that Montalvo-Flores possessed the keys to the 

car. It thus concluded 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.” A13. It further stated in dictum that even if 

Montalvo-Flores had been seen operating the vehicle with his 

girlfriend’s consent, he still would lack a reasonable 

expectation of privacy in it because he did not have a driver’s 

license.

3

 

2 The Supreme Court in Byrd considered whether a driver 

of a rental car, who was not listed on a rental agreement 

prohibiting unauthorized drivers from operating it, nonetheless 

had a reasonable expectation of privacy in the car. The Court 

unanimously held that a driver’s status as an unauthorized 

driver “will not defeat his or her otherwise reasonable 

expectation of privacy.” Byrd, 138 S. Ct. at 1531. 

3 Because the Court held that Montalvo-Flores lacked a 

Fourth Amendment interest in the vehicle, it did not reach the 
7

After a stipulated bench trial, the Court found

Montalvo-Flores guilty of possession with intent to distribute 

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). 

It sentenced him to 40 months of incarceration to be followed 

by three years’ supervised release. He appeals to us.

II. JURISDICTION & STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. 

§ 3231, and we have jurisdiction under 28 U.S.C. § 1291. We 

review a district court’s order denying a motion to suppress 

under a “mixed standard of review. We review findings of fact 

for clear error, but exercise plenary review over legal 

determinations.” United States v. Dyer, 54 F.4th 155, 158 (3d 

Cir. 2022). “A [factual] finding is clearly erroneous when 

although there is evidence to support it, the reviewing body on 

the entire evidence is left with the definite and firm conviction 

that a mistake has been committed.” Concrete Pipe & Prods. 

of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 

U.S. 602, 622 (1993). 

III. ANALYSIS

a. Did Montalvo-Flores Have a Fourth Amendment 

Interest in His Girlfriend’s Rental Car?

“[C]apacity to claim the protection of the Fourth 

Amendment depends . . . upon whether the person who claims 

the protection of the Amendment has a legitimate expectation 

of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 

128, 143 (1978). To decide that issue, we ask first whether 

question of whether Enterprise’s consent granted officers a 

lawful basis to search it.
8

Montalvo-Flores “exhibited an actual (subjective) expectation 

of privacy and, second, [whether his] expectation [was] one 

that society is prepared to recognize as ‘reasonable.’” Katz v. 

United States, 389 U.S. 347, 361 (1967) (Harlan, J., 

concurring). These two questions reflect the “subjective” and 

“objective” prongs, respectively, of the Fourth Amendment’s

“standing” inquiry.

4

 See United States v. Cortez-Dutrieville, 

743 F.3d 881, 884 (3d Cir. 2014). Montalvo-Flores bears the 

burden of proving each element. See United States v. Stearn, 

597 F.3d 540, 551 (3d Cir. 2010) (“To invoke the Fourth 

Amendment’s exclusionary rule, a defendant must demonstrate 

that his own Fourth Amendment rights were violated by the 

challenged search or seizure.”).

There is no question Montalvo-Flores had a subjective 

expectation of privacy in the rental car. When officers took the 

keys from him, he exclaimed “those are my rent-a-car keys!” 

A149:5–12. And officers needed the keys to open the locked 

vehicle parked outside his hotel. Thus, Montalvo-Flores no 

doubt believed he had privacy in the car and took steps to 

preserve his privacy.

4

“The concept of standing in Fourth Amendment cases

can be a useful shorthand for capturing the idea that a person 

must have a cognizable Fourth Amendment interest in the 

place searched before seeking relief for an unconstitutional 

search; but it should not be confused with Article III standing, 

which is jurisdictional and must be assessed before reaching 

the merits.” Byrd, 138 S. Ct. at 1530. We thus use “standing” 

to denote an element of the Fourth Amendment claim—that the 

movant has a reasonable expectation of privacy in the invaded 

place—though it does not implicate our jurisdiction. 
9

The remaining question, then, is whether his

expectation was reasonable. This “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; ownership is not 

necessary.” United States v. Baker, 221 F.3d 438, 442 (3d Cir. 

2000). Indeed, the Supreme Court held that “the mere fact that 

a driver in lawful possession or control of a rental car is not 

listed on the rental agreement will not defeat his or her 

otherwise reasonable expectation of privacy.” Byrd, 138 S. Ct. 

at 1531. The Court reasoned that “one who . . . lawfully 

possesses or controls property will in all likelihood have a 

legitimate expectation of privacy by virtue of [the] right to 

exclude.” Id. at 1528 (quoting Rakas, 439 U.S. at 144 n.12).5 

We note first that Montalvo-Flores had the keys to a car 

his girlfriend, Pisciotta, rented. She signed the rental 

agreement and Holmes testified to knowing that “she was 

[Montalvo-Flores’] girlfriend at the time.” A151:22–152:3; 

see also A190:15–17 (Holmes answering “yes, sir” to the 

question “Enterprise informed you that his girlfriend had 

rented the vehicle?”). The District Court, however, only 

acknowledged that “[Montalvo-Flores] states that Pisciotta 

was his girlfriend at the time,” and thus it backed away from 

5 The Supreme Court in Byrd remanded for inquiries into 

(1) whether Byrd had his girlfriend act as a formal go-between 

in renting the vehicle for him, and (2) whether that would 

render his expectation of privacy illegitimate. Byrd, 138 S. Ct.

at 1529–30. The Government does not allege that 

Montalvo-Flores’s girlfriend fraudulently rented the car for 

him, and thus we do not have occasion to consider these 

questions raised in Byrd.
10

the uncontested and established fact that she was his girlfriend. 

A9 (emphasis added).

That Montalvo-Flores had his girlfriend’s keys matters. 

To repeat, our inquiry is focused “on the strength of his interest 

in the car and the nature of his control over it.” Baker, 221 

F.3d at 442. Possessing his girlfriend’s keys, not a stranger’s,

suggests Montalvo-Flores lawfully possessed the car. 

Consider another United States v. Baker, this time in the Ninth 

Circuit, where officers took car keys hanging from Baker’s belt 

loop, searched the car, and found evidence in it. 58 F.4th 1109 

(9th Cir. 2023). When Baker moved to suppress that evidence, 

the Government asserted he lacked standing to do so because 

he did not assert a possessory or ownership interest in the car

or its key. Id. at 1118 & n.2. But the Court observed that the

car belonged to Baker’s mother. Thus, he had a legitimate 

privacy interest in the car and the keys, rejecting the 

Government’s argument that he “could have taken [them]

without his mother’s permission.” Id. 

Much like the Ninth Circuit recognized that a son is 

unlikely to be driving his mother’s car without her permission, 

Montalvo-Flores was equally unlikely not to have had 

Pisciotta’s permission to drive her rental car. Indeed, the 

evidence confirms this commonsense inference in our case. 

Prior to Montalvo-Flores’s arrest, officers saw Pisciotta 

exchange the vehicle with him. A176:25–177:3 (agreeing 

“that someone had surveilled Ms. Pisciotta and knew that she 

was in that vehicle and then exchanged it with [MontalvoFlores]”). Though the dissent states Holmes equivocated on 

this point, it cites no testimony in support. That is because

Holmes maintained throughout his testimony that officers saw 

Pisciotta exchange the vehicle with Montalvo-Flores. But 
11

when Montalvo-Flores’ counsel asked Holmes whether a 

specific officer witnessed Pisciotta giving Montalvo-Flores the 

car, he answered “I can’t answer what another person [saw], to 

be honest.” A163:1–5. In short, Holmes’ testimony that one 

of his fellow officers saw Pisciotta exchange the car with 

Montalvo-Flores stands unrebutted and directly supports the 

notion that Montalvo-Flores had “lawful possession and 

control” of it. Byrd, 138 S. Ct. at 1524.

Beyond just having the car nearby and the keys to it, 

Montalvo-Flores possessed and controlled it. Holmes testified 

that he remembers a fellow detective saying that 

Montalvo-Flores possessed the car, so when Holmes took the

keys from him, he “assume[d] that [Montalvo-Flores] 

possessed the vehicle.” A180:6–10. Further, Enterprise’s 

agent based her consent to search the car in part on her view 

that Montalvo-Flores “shouldn’t have possessed [it] because he 

didn’t sign the rental agreement.” A180:24–181:9. And the

car, which was parked outside his hotel room, was not reported 

lost or stolen. The record evidence thus points in one direction:

Montalvo-Flores had “dominion and control” over the car with 

his girlfriend’s permission. Byrd, 138 S. Ct. at 1528 (quoting 

Rakas, 439 U.S. at 149).

So how did the District Court come to find 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?” A12. It noted 

Holmes “was not able to testify as to when or where that 

observation was made, or if detectives subsequently observed 

[Montalvo-Flores] operating or exercising control over the 

vehicle prior to his arrest.” A12. But that is immaterial, as

Holmes maintained throughout his testimony that 
12

Montalvo-Flores possessed and controlled the car, apparently

with his girlfriend’s permission. That, to reemphasize, was 

something the Government agreed with in its briefing to the 

District Court.6 Though Holmes was at times relaying what 

other officers saw and told him, “hearsay testimony is 

admissible at suppression hearings . . . and should be 

considered by a district court” if reliable. United States v. 

Miramonted, 365 F.3d 902, 904 (10th Cir. 2004) (citing United 

States v. Matlock, 415 U.S. 164, 173 (1974)). Here, Holmes 

obtained Enterprise’s consent to search the car by telling its

manager that Montalvo-Flores operated it, and later wrote a 

police report stating that Pisciotta gave the vehicle to 

Montalvo-Flores.

7

 Further, it is inconceivable that Holmes 

would concoct testimony favorable to Montalvo-Flores. 

“Under [these] circumstances there was no apparent reason for 

the judge to distrust” Holmes’ insistent and unrebutted 

testimony that Montalvo-Flores possessed and controlled the 

6 The Government’s position in its District Court briefing 

is useful for understanding the testimony there. That the

Government twice stated that Montalvo-Flores had permission 

to operate the vehicle—clearly and directly, not in passing—is

useful to understand why Holmes testified to that effect and 

why Montalvo-Flores did not call witnesses to confirm the

then-uncontroverted fact that he had permission to possess and 

operate the vehicle. A68–69, A70.

7 As the dissent notes, no party introduced the police 

report into evidence. But throughout the suppression hearing

Holmes testified to its existence and content. We thus rely on 

his testimony, not the police report itself, as evidence. 
13

car. Matlock, 415 U.S. at 176. Thus, the District Court clearly 

erred in finding otherwise. 

The dissent casts Holmes’ testimony on these points as

“inconsistent” and “equivocal.” However, the exchanges it 

cites for those propositions do not cause such doubt in his 

testimony. When Montalvo-Flores’ counsel asked Holmes if 

there was anything in his police report “to indicate that anyone 

else observed [Montalvo-Flores] step foot in” the car, Holmes 

replied “[o]nly just that someone [had] possibly seen 

[Montalvo-Flores]” in it. A163:10–12. Critically, Holmes was 

testifying about what he wrote in his police report.

8

 As 

explained above, whenever Montalvo-Flores’s counsel asked 

Holmes whether Montalvo-Flores possessed and controlled the 

car (not what the police report said), Holmes remained 

steadfast that Montalvo-Flores did both. Curiously, the dissent 

attempts to poke a hole here by pointing out that when 

Montalvo-Flores’ counsel asked Holmes whether 

Montalvo-Flores possessed or operated the car, noting 

“[t]hey’re two different things,” Holmes answered “Operated. 

Possessed.” A179:8–12. This testimony reveals no wavering, 

but instead Holmes’ continued assertion that 

Montalvo-Holmes both possessed and operated the car.9 As 

8 Holmes misremembered the report. It only states, in 

relevant part, that “Mr. Flores[’] girlfriend [] was observed by 

Detectives prior to the arrest exchanging/possessing the 

vehicle with Mr. Flores.” A182:15–21 (excerpt of report being 

read on the record).

9 The dissent cites, in support of its position, 

Montalvo-Flores’ counsel’s misstatement at oral argument that 

the record suggests Montalvo-Flores neither operated nor 
14

the dissent points out, the District Court observed Holmes’ 

tone and demeanor, and we did not have the benefit of doing 

so. That would matter were there conflicting evidence from 

which to choose. But here the evidence points one way only, 

and the Court went against it.

True, Montalvo-Flores did not introduce independent

evidence at the suppression hearing. Instead, he relied on his 

attorney’s cross-examination of the Government’s witness. 

That was a daring strategy, because the Government could 

have chosen not to put on any witness, which would have left 

Montalvo-Flores insufficient evidence to support his assertion 

that he had a Fourth Amendment interest in the vehicle. But 

Holmes testified, and his testimony strongly supported that

Montalvo-Flores possessed and controlled the car with his 

girlfriend’s permission. He therefore had a cognizable Fourth 

Amendment interest in it.

10

 See Baker, 221 F.3d at 443 

occupied the car. However, it also notes that Montalvo-Flores’ 

counsel later backtracked. And more importantly, a counsel’s 

argument is not evidence. If it were, we would make much of 

the Government’s concessions, also at oral argument, that 

officers observed both Pisciotta giving the keys and car to 

Montalvo-Flores, and his later driving it. 

10 That Montalvo-Flores had no valid driver’s license does 

not change this result. Although the District Court found 

(incorrectly) that he never possessed or operated the car, it 

went on to opine that, even if he had, he would still lack Fourth 

Amendment standing because he had no driver’s license. 

But New Jersey law only prohibits unlicensed drivers 

from driving cars. N.J.S.A. § 39:3–10. It does not bar them 
15

(reasonable expectation of privacy for driver “when there is 

clear evidence of continuing possession and control, as well as 

no evidence that the driver obtained the car illegitimately”); 

United States v. Garcia, 897 F.2d 1413, 1418 (7th Cir. 1990)

(“If an individual has the owner’s permission to use property, 

society surely recognizes this as reasonable.”); United States v. 

Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (“Where 

the defendant offers sufficient evidence indicating that he has 

permission of the owner to use the vehicle, the defendant 

plainly has a reasonable expectation of privacy in the vehicle 

and standing to challenge [its] search.”). 

* * * * *

from exercising dominion and control over a parked car. 

Because Montalvo-Flores had possession and control over a

parked car at the time of the search, he was not obligated to 

have a driver’s license. Thus, we reject the District Court’s 

alternative holding that Montalvo-Flores’ not having a driver’s 

license deprives him of a reasonable expectation of privacy in 

the vehicle, though we do not weigh in on the question splitting

our sister circuits: whether an unlicensed driver has a 

reasonable expectation of privacy in a rental car? Compare 

United States v. Bettis, 946 F.3d 1024, 1029 (8th Cir. 2020) 

(holding that “an unauthorized and unlicensed driver may 

challenge a search of a rental car operated with the renter’s 

permission”), and United States v. Cohen, 38 F.4th 1364, 

1369–70 (11th Cir. 2022) (same), with United States v. Lyle, 

919 F.3d 716, 729–30 (2d Cir. 2019) (holding defendant 

“lacked standing not just because he was an unauthorized 

driver [of a rental car], but because he was an unlicensed one”).
16

Much came out at Montalvo-Flores’s hearing to 

suppress evidence obtained from the car rented by Pisciotta: 

she was his girlfriend; she gave the car’s keys to him; he 

possessed the keys when arrested; the car was parked outside 

his hotel room; it was locked; and he was observed by police 

possessing and operating it. This contextstrongly suggests that 

Montalvo-Flores had dominion and control of the car with his 

girlfriend’s permission. To conclude, as did the District Court, 

that he “was never observed possessing, operating, or 

otherwise exercising any sort of control over the rental 

vehicle,” A12, was clear error. The legal conclusion from the 

facts noted above is that Montalvo-Flores had a reasonable 

expectation of privacy in the car and thus may challenge the 

evidence taken from it without a warrant.

Because Montalvo-Flores had a reasonable expectation 

of privacy in the car, the Government must justify its 

warrantless search. However, after concluding he lacked 

standing, the District Court did not analyze whether the 

Government’s search was valid. “We ordinarily decline to 

consider issues not decided by a district court, choosing instead 

to allow that court to consider them in the first instance.” 

Forestal Guarani S.A. v. Daros Int’l, Inc., 613 F.3d 395, 401 

(3d Cir. 2010). We follow that path here and vacate the denial 

of Montalvo-Flores’s motion to suppress evidence of the drugs 

found in the leased vehicle. As that evidence was the basis for 

the judgment of conviction, it too is vacated, and the case 

remanded for further proceedings. 
1

United States v. Christopher Montalvo-Flores, No. 22-1752

______________

HARDIMAN, Circuit Judge, dissenting. 

Christopher Montalvo-Flores appeals the District 

Court’s order denying his motion to suppress evidence seized 

during the search of his girlfriend’s rental car. I would hold that 

the District Court’s factual findings were not clearly erroneous

and that Montalvo-Flores failed to carry his burden to prove he 

had a reasonable expectation of privacy in the searched car. 

Because I would affirm the order denying his motion to 

suppress on Fourth Amendment standing grounds, I 

respectfully dissent.

I

Montalvo-Flores had to show “that he had a reasonable 

expectation of privacy in the property searched.” United States 

v. Burnett, 773 F.3d 122, 131 (3d Cir. 2014); see Rawlings v. 

Kentucky, 448 U.S. 98, 104 (1980). Sometimes that burden of 

proof to show Fourth Amendment standing is easily carried. 

For example, because the “reasonable-expectations test has 

been added to, not substituted for, the traditional propertybased understanding of the Fourth Amendment,” Florida v. 

Jardines, 569 U.S. 1, 11 (2013) (cleaned up), evidence that one 

is the owner or lessee of the searched home or car is often 

enough to shift the burden to the Government to justify a

warrantless search, see United States v. Bey, 911 F.3d 139, 145 

(3d Cir. 2018). But here, Montalvo-Flores neither owned nor 

leased the rental car.
2

Yet Montalvo-Flores’s lack of a common-law property 

interest in the car was not fatal to his suppression motion. In 

Byrd v. United States, the Supreme Court held that “as a 

general rule, someone in otherwise lawful possession and 

control of a rental car has a reasonable expectation of privacy 

in it even if the rental agreement does not list him or her as an 

authorized driver.” 138 S. Ct. 1518, 1524 (2018). An

expectation of privacy—though not necessarily a reasonable 

one—comes from the “complete dominion and control over” 

the car and the ability to “exclude others from it.” Id. at 1528 

(quoting Rakas v. Illinois, 439 U.S. 128, 149 (1978)). But for 

Fourth Amendment standing to exist, that control must be

lawful—a car thief, for example, has no reasonable

expectation of privacy in his plunder. Id. at 1529; see also 

United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000), as 

amended (Sept. 21, 2000) (“[W]e have previously suggested 

that a defendant who had stolen a car and used it in a robbery 

would not have standing to object to a search of the car.”).

Montalvo-Flores thus had to prove that he had complete

and lawful dominion and control over the car. See Burnett, 773 

F.3d at 131. His possession of the keys reflects dominion and 

control. The keys would allow Montalvo-Flores to “exclude 

others” from the car by locking the doors. See Byrd, 138 S. Ct. 

at 1528 (quoting Rakas, 439 U.S. at 149). But even assuming 

this evidence established Montalvo-Flores’s dominion and 

control of the car, he still had to prove that his possession was 

lawful. Without a property interest in the car, Montalvo-Flores 

could not lawfully possess the car unless he had permission to 

do so from the owner or lessee. Otherwise, Montalvo-Flores’s 

expectation of privacy in the car would be analogous to that of 

a car thief. For example, in Jones v. United States, the Supreme 

Court concluded a house guest had a reasonable expectation of 
3

privacy in the premises when the tenant “had given [the house 

guest] the use of it, and a key.” 362 U.S. 257, 259, 265 (1960); 

see also Byrd, 138 S. Ct. at 1528 (relying on Jones). 

Because it is undisputed that Montalvo-Flores did not 

have permission from Enterprise to use the car, any permission 

must have come from the lessee, his girlfriend Jennifer 

Pisciotta. The most obvious way to prove such permission

would have been to elicit testimony from either MontalvoFlores or Pisciotta that she let Montalvo-Flores possess the 

keys and the car. He did not call either as a witness, and the 

District Court concluded the evidence that was introduced 

failed to carry Montalvo-Flores’s burden. This was not clearly 

erroneous.

II

The evidence at the suppression hearing—consisting of 

testimony from a single witness, one of the arresting officers, 

Detective Abdullah Holmes, 1 —did not carry MontalvoFlores’s burden of proof to show he had permission to possess 

and control the car given the District Court’s non-clearly 

erroneous factual findings. See United States v. Perez, 280 F.3d 

318, 336 (3d Cir. 2002) (applying clear-error review to factual 

findings underlying a decision on a motion to suppress). 

1 Montalvo-Flores also attached Holmes’s police report to his 

suppression motion, but neither party introduced it as evidence 

at the hearing. As the majority notes, we cannot rely on the 

report except to the extent that Holmes’s testimony discussed 

it. Maj. Op. 12 n.7. Yet the majority later tries to sidestep that 

restriction, citing counsel purporting to read from the report to 

discount Holmes’s testimony highlighted in this dissent as 

having “misremembered the report.” Maj. Op. 13 n.8. 
4

“Fourth Amendment standing is a fact-bound question 

dependent on the strength of [Montalvo-Flores’s] interest in 

the car and the nature of his control over it.” Baker, 221 F.3d 

at 442. And we can disrupt the District Court’s factual findings 

only if they are “completely devoid of minimum evidentiary 

support displaying some hue of credibility” or lack any 

“rational relationship to the supportive evidentiary data.”

DiFederico v. Rolm Co., 201 F.3d 200, 208 (3d Cir. 2000) 

(citation omitted). The majority errs by failing to properly 

account for Montalvo-Flores’s burden of proof and the

deference due to the District Court’s factfinding.

A

The majority suggests that the Government may have 

conceded or forfeited its argument that Montalvo-Flores did 

not have permission to possess or control the car. The

Government focused its arguments to the District Court on 

other theories for why Montalvo-Flores lacked standing to 

challenge the search, and in doing so made passing references 

to his purported permission to possess the car. App. 69, 70. But 

the District Court did not treat these brief statements as a 

concession that absolved Montalvo-Flores of his burden of 

proof. Neither does Montalvo-Flores, who does not mention

the Government’s purported concession in his appellate

briefing. He thus forfeited any argument relying on the 

Government’s statements to the District Court. See Altice USA, 

Inc. v. N.J. Bd. of Pub. Utilities, 26 F.4th 571, 575 n.2 (3d Cir. 

2022) (noting a party can “forfeit[] its forfeiture argument” by 

failing to raise it with specificity). So like the parties and the 

majority, I turn to the evidence introduced at the hearing and 

on which the District Court based its factual findings.
5

B

To establish Montalvo-Flores had permission to possess 

the car and the keys, the majority relies heavily on evidence 

that an officer purportedly witnessed Pisciotta exchange the car 

with Montalvo-Flores and observed Montalvo-Flores operate 

the vehicle. Holmes at one point testified that “[o]ne of the 

other members did see [Montalvo-Flores] operate the vehicle.” 

App. 181; see also App. 183 (“[T]his report reflects my 

memory that one of the detectives did say that he did possess 

the vehicle.”). But unlike the majority, I don’t see the record as 

“point[ing] in one direction” on this factual question. Maj. Op. 

11. Instead, Holmes equivocated as to whether anyone saw 

Pisciotta exchange the keys with Montalvo-Flores, or saw 

Montalvo-Flores ever step foot in (let alone drive) the car. 

Holmes made clear he never saw Montalvo-Flores in the 

vehicle. As for his fellow officers, counsel asked Holmes: 

“And there’s nothing in your report to indicate that anyone else 

observed him step foot in [the rental car]. Correct?” App. 163.

Holmes responded “[o]nly that someone possibly [saw] him, 

yes.” Id. (emphasis added).

2 And even in the testimony relied 

2 The majority criticizes this analysis for relying on Holmes’s 

testimony “about what he wrote in his police report.” Maj. Op. 

13. But much of Holmes’s testimony relied on by the majority

also focused on his report. See, e.g., Maj. Op. 5 (citing 

testimony reading from the report); Maj. Op. 13 n.8 (relying on 

the report directly). Similarly, the majority says this testimony 

was about whether “a specific officer witnessed Pisciotta 

giving Montalvo-Flores the car.” Maj. Op. 11. Holmes testified 

here about “the officer who allegedly surveilled” MontalvoFlores. App. 163. But all the testimony about whether another 

officer saw Montalvo-Flores operate the car or exchange the 
6

on by the majority, Holmes struggled to articulate what other

officers may have seen, vacillating between whether they 

witnessed Montalvo-Flores “exchange,” “possess,” or 

“operate” the car. See Maj. Op. 5 (citing App. 176–77 

(“exchanged”), App. 179 (Q. “Probably, definitely one of the 

other members saw him operating the vehicle?” A. “He had 

possessed the vehicle at one time, yes.” Q. “Possessed it or 

operated? They’re two different things.” A. “Operated. 

Possessed.”)). 

What was the District Court to make of this inconsistent

and equivocal testimony from a single witness who testified 

only to what others said they saw? The District Court

acknowledged Holmes’s testimony, noted some holes in it, and

then made a factual finding: “[Montalvo-Flores] was never 

observed possessing, operating, or otherwise exercising any 

sort of control over the rental vehicle aside from possessing the

keys thereto.” United States v. Montalvo-Flores, 2021 WL 

1573842, at *4 (D.N.J. Apr. 22, 2021). That factual finding is 

not clearly erroneous on this record. 

The majority, based on limited hearsay evidence, 

concludes otherwise. True, “[a]t a suppression hearing, the 

court may rely on hearsay.” United States v. Raddatz, 447 U.S. 

667, 679 (1980) (emphasis added). But as the majority admits, 

a court should do so only if the hearsay testimony is “reliable.” 

keys to it was about the officer or officers that had surveilled 

him. See, e.g., App. 176–77 (Q. “Prior to that[,] someone had 

surveilled Ms. Pisciotta and knew that she was in that vehicle 

and then exchanged it with Mr. Flores. Correct?” 

A. “Correct.”). There is no suggestion that an officer saw 

Montalvo-Flores and the car by chance, rather than during 

surveillance.
7

Maj. Op. 12. The District Court found the hearsay unreliable 

because Holmes could not recall basic details about it—such 

as who told him they saw Montalvo-Flores operate the vehicle, 

or where or when they made that observation. And the District 

Court observed Holmes’s tone and demeanor when he testified 

that he never saw Montalvo-Flores occupy the car and that it 

was only “possibl[e]” that a fellow officer had seen as much, 

App. 163, and when he later stated another officer had seen 

Montalvo-Flores drive the car. The District Court was thus in 

the best position to resolve any discrepancy in the testimony

and judge the reliability of the hearsay. See Anderson v. City of 

Bessemer City, N.C., 470 U.S. 564, 575 (1985) (“[O]nly the 

trial judge can be aware of the variations in demeanor and tone 

of voice that bear so heavily on the listener’s understanding of 

and belief in what is said.”). We must defer to the District 

Court’s evaluation.

3

In support of its position that another 

officer saw Montalvo-Flores drive the car, the majority also 

3 The majority faults the District Court for not crediting the 

hearsay because “it is inconceivable that Holmes would 

concoct testimony favorable to Montalvo-Flores.” Maj. Op. 12. 

But when evaluating the reliability of hearsay, a judge must 

consider both the reliability of the testifying witness and the 

reliability of the hearsay witness—here, the other officer who 

purportedly said he saw Montalvo-Flores drive the car. The 

majority fails to account for this second level of reliability. 

Moreover, Holmes’s testimony on this point is not strictly 

“favorable to Montalvo-Flores.” Id. Though it may have 

helped Montalvo-Flores on the issue of Fourth Amendment 

standing, tying him to the car would have supported the 

Government on other fronts—such as justifying the search 

based on Enterprise’s consent, as an automobile search, or as a 

search incident to arrest.
8

states that “Holmes obtained Enterprise’s consent to search the 

car by telling its manager that Montalvo-Flores operated it.” 

Maj. Op. 12. Again, Holmes equivocated on this point. At first 

he testified that “[w]e advised [Enterprise] that the person 

operating the vehicle at the time . . . was arrested for 

outstanding warrants.” App. 151 (emphasis added). But later 

Holmes testified that “we told [Enterprise] that he possessed 

the keys and he had the keys to that vehicle.” App. 177

(emphasis added); see also App. 180 (Q. “Did you inform 

Enterprise that he had not operated the vehicle?” A. “I 

informed Enterprise that he was possessing their keys.”

(emphasis added)). And even looking to Holmes’s first 

statement, we know it is not true that Montalvo-Flores was 

“operating the vehicle at the time” of his arrest, App. 151, when 

Holmes called Enterprise. Instead, Montalvo-Flores was in his 

hotel room. So this evidence does not tip the scales in his favor.

Because the District Court’s factual conclusion that no 

officer observed Montalvo-Flores enter or possess the vehicle 

is neither “completely devoid of minimum evidentiary support 

displaying some hue of credibility” nor without any “rational 

relationship to the supportive evidentiary data,” it is not clearly 

erroneous. DiFederico, 201 F.3d at 208. In fact, MontalvoFlores’s counsel conceded at oral argument that “[t]here is 

nothing in the record that indicates . . . that [Montalvo-Flores]

operated or even occupied . . . the car.” Oral Arg. Transcript

(ECF 55) at 9:13–15. Counsel backtracked to some extent on 

rebuttal but still argued that the more consistent testimony was 

that Montalvo-Flores never operated Pisciotta’s rental car. Id. 

at 27:24–28:23. Yet the majority goes out of its way to find the 

District Court’s factual finding clearly erroneous. 
9

C

Stripped of evidence that Montalvo-Flores had driven 

or occupied the vehicle, he and the majority are able to point 

to little additional evidence indicating he had permission to 

possess the car.

First, Montalvo-Flores possessed the keys. As noted 

above, possession suggests dominion or control over the car

but sheds no light on whether he had lawful possession.

Second, police found the car locked and outside the 

hotel where Montalvo-Flores was arrested. Like possession of 

the keys, this fact suggests at most that Montalvo-Flores had 

possession and control of the car—not that his possession was 

permitted and lawful. That the car was not reported lost or 

stolen, does not change this analysis. Though we know 

Pisciotta was not in the hotel room at the time of MontalvoFlores’s arrest, the record is otherwise silent about her 

whereabouts, so she could have been nearby without knowing 

that Montalvo-Flores had the keys. And even if he took them 

without her permission and she was aware, she may have opted 

to not report her boyfriend for taking the car. 

Third, Montalvo-Flores exclaimed “[t]hose are my car 

keys” when the police found them. App. 149. Simply asserting

that the keys or the car were his did not make it so. Though this 

evidence may help show that Montalvo-Flores “demonstrated

a subjective expectation of privacy in the subject of the 

search,” it does nothing to render his expectation “objectively 

reasonable,” as necessary to establish Fourth Amendment 

standing. United States v. Cortez-Dutrieville, 743 F.3d 881, 

884 (3d Cir. 2014). The majority agrees.
10

Fourth, Montalvo-Flores’s girlfriend rented the car. But 

that relationship does not require that she permitted him to use

the car. It’s plausible that Pisciotta gave Montalvo-Flores the 

keys and full use of the car. But it’s equally plausible that 

Pisciotta was aware of her boyfriend’s illicit activities and, 

hoping to avoid implicating herself, prohibited MontalvoFlores from using the car. It’s also plausible that she was not 

willing to share her rental car with an unauthorized and 

unlicensed driver, and that Montalvo-Flores grabbed the keys 

when the police arrived. We simply don’t know because 

Montalvo-Flores called no witnesses, despite his burden of 

proof. See Burnett, 773 F.3d at 131. While permission to drive 

the car may be one “commonsense inference,” Maj. Op. 10, we 

could draw from Montalvo-Flores’s relationship to the lessee, 

it’s neither the only reasonable inference that could be drawn

nor the one the District Court drew. And Montalvo-Flores is 

not entitled to have the District Court or our Court draw 

reasonable inferences in his favor at the suppression stage. Cf. 

Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir. 2011)

(requiring reasonable inferences to be drawn in favor of the 

non-moving party at summary judgment, because—unlike on 

a suppression motion—the court does not resolve factual 

disputes at that stage). To the contrary, on appeal from an order

denying a suppression motion we generally must “construe the 

record in the light most favorable to the government.” United 

States v. Harrison, 689 F.3d 301, 306 (3d Cir. 2012).

The majority relies on a Ninth Circuit case to accord 

substantial weight to Montalvo-Flores’s relationship to 

Pisciotta. Maj. Op. 10 (citing United States v. Baker, 58 F.4th 

1109 (9th Cir. 2023)). But Baker is as unconvincing as it is 

non-binding. For one, it addressed whether the defendant has a 

reasonable expectation in a car key seized from his person, not 
11

the car itself. Id. at 1118. For another, the case primarily 

addressed whether Baker abandoned the key by disclaiming 

ownership of any car. See id. The language today’s majority 

quotes about Baker potentially taking the key without 

permission was buried in a footnote and lacked analysis or 

citation to authority. Id. at 1118 n.2. Finally, as the majority 

recognizes, the reasonable expectation of privacy inquiry is a 

“fact-bound question.” Maj. Op. 9 (quoting Baker, 221 F.3d at

442). Because the footnote from the Ninth Circuit case is so 

brief, we do not know what evidence about Baker’s 

relationship with his mother supported an inference that he had 

permission to drive her car. Here, Montalvo-Flores introduced 

no evidence about his relationship to Pisciotta other than that 

she was his “girlfriend”—a title that could encompass a range 

of relationships. 

Looking at this evidence, perhaps the District Court 

exaggerated when describing this case as about “the mere

possession of keys.” Montalvo-Flores, 2021 WL 1573842, at 

*4 (emphasis added). But considering the District Court’s 

factual finding that nobody saw Montalvo-Flores occupy the 

car, this case is mostly about the possession of keys. The other 

facts and circumstantial evidence add little to show that 

Montalvo-Flores had permission to use Pisciotta’s rental car. I 

would find this evidence insufficient to prove such permission. 

* * *

In sum, I would hold that the District Court did not 

clearly err in its factual findings and that Montalvo-Flores 

failed to prove that he had permission to use the rental car. He 

thus did not show that he had lawful possession of and control 

over the car, as necessary to establish a reasonable expectation 

of privacy in it. For those reasons, we should affirm both the 
12

District Court’s order denying the motion to suppress and its 

judgment of conviction. With respect, I dissent.