1 All dates correspond with 1996 unless otherwise stated. United States Court of Appeals, Eleventh Circuit.

No. 96-3240. UNITED STATES of America, Plaintiff-Appellee,

v. Dwayne Berman COOPER, Defendant-Appellant. Jan. 26, 1998. Appeal from the United States District Court fo r the Middle District of Florida. (No. 96-29-CR-J20), Harvey E. Schlesinger, District Judge. Before HATCHETT, Chief Judge, and TJOFLAT and COX, Circuit Judges. HATCHETT, Chief Judge: The primary issue in this case is whether appellant-driver legitimately expected Fourth Amendment-level privacy in an overdue rental carthat the rental company had not repossessed at the time of law enforcement's warrantless search. We (1) affirm the district court's conclusion that a law enforcement officer permissibly stopped appellant; (2) resolve the issue of first impression in appellant's favor, reversing the district court's conclusion that he lacked standing to challenge the search; and (3) remand for proceedings consistent with this opinion.
I. BACKGROUND On January 6, 1996, appellant, Dwayne Cooper, rented a car from Budget Rent-A-Car (Budget) in West Palm Beach, Florida. The contract specified January 20 as the return due date and West Palm Beach as the return location. 1 The contract also included the following terms and conditions:2 Irving Higgs accompanied Cooper as a passenger. 14) VEHICLE RETURN: Renter is responsible for returning the Vehicle in the same condition as when received, to the location and on the date specified, or sooner if requested by Budget. FAILURE TO RETURN THE VEHICLE TO THE SPECIFIED LOCATION ON THE DUE DATE MAY RESULT IN A DROP CHARGE AND/OR RATE CHANGE. 15) REPOSSESSION OF VEHICLE: The Vehicl e may be repossessed, without notice and at Renter's expense, if it is not returned when due, is illegally parked, is used in violation of law or of this Agreement, appears abandoned, or if Renter provides false or misleading information at time of rental. 16) FAILURE TO RETURN VEHICLE: If the Ve hicle is not returned when due or within 24 hours after written or oral demand by Budget, Renter will be in unlawful possession of the Vehicle, and Budget may seek the issuan ce of a warrant for the arrest of anyone in possession of the Vehicle (including Renter). Written demand is considered delivered 48 hours after Budget mails a certified letter to Re nter at the home or business address Renter provides at time of rental. Government's Ex. Three (capital letters and bold print in original). Aside from its warning about late fees in paragraph fifteen, the contract does not address the renter's ability to extend the due date. Budget's established policy, however, is that it will extend the due date if the renter makes a request over the telephone and sufficient funds exist on his or her credit card. Through his past course of dealings with Budget, Cooper knew of this unwritten policy. It ha d also been Cooper's experience that returning a rental car after the due date was "no problem" with Budget as long he had "room" on his credit card for the extra days and applicable fees. On January 24, four days after the rental c ontract expired, Michael King of the Florida Highway Patrol (FHP) saw the rental car on Inters tate 95 in Jacksonville, Florida. King, traveling in the center northbound lane of Interstate 95 in a marked car, noticed Cooper in his rear-view mirror unsuccessfully attempting to merge from the left to the center lane to continue on Interstate 95 after the highway "splits." 2 Finding himself on Interstate 10 rather than Interstate 95, Cooper accelerated past King, cut across King's lane, drove over an apex and exited the highway. Cooper's car came3 Florida law prohibits an improper lane change: No vehicle shall be driven from a direct course in any lane on any highway until the driver has determined that the vehicle is not being approached or passed by any other vehicle in the lane or on the side to which the driver desires to move and that the move can be completely made with safety and without interfering with the safe operation of any vehicle approaching from the same direction. Fla. Stat. § 316.085(2) (1995).

4 Consent is one of many factual issues that the district court did not resolve. Our recitation of the facts derives from the few findings of fact that the district court actually rendered and undisputed portions of the record. too close to King's vehicle during the lane change, causing King to apply his br akes in order to avoid an accident. Intending to issue Cooper a citation for an improper lane change, King signaled for Cooper to pull over into the exit's emergency lane. 3 Complying with King's requests, Cooper identif ied himself, stepped out of the car and proffered his driver's license and the rental contract. King inquired about the rental car being four days overdue, and Cooper explained that he had extended the due date. Using his car telephone, King directed the FHP dispatcher to contact Budge t and verify this information. Budget informed the dispatcher that Cooper had not requested an ex tension past January 20 and asked that the car be towed and returned. Budget had not reported the car stolen, sought a warrant for Cooper's arrest or otherwise notified Cooper that it intended to re possess the car. The dispatcher relayed this information to King, and he asked the dispatcher to contact a private towing service. Soon thereafter, a second FHP trooper, Michael Smith, arrived to assist King. The troopers informed Cooper about Budget's plan to tow the car. Cooper requested to speak with a Budget representative, but the troopers would not permit him to use the telephone. Instead, King asked Cooper for consent to search the car. The parties dispute, and the district court did not resolve, whether Cooper consented. 4 In any event, King reached in through the passenger door, turned off5 The indictment also charged Higgs, the passenger, with these same counts, but the district court granted the government's motion to dismiss him from the case. the ignition, "swept" under the car seats and opene d the glove compartment. Although he did not find anything under the seats, King found a loaded firearm in the glove compartment and arrested Cooper for concealing a firearm. While Cooper remained in custody inside the patrol car, King and Smith decided to proceed with a full inventory search of the rental car, a procedure which FHP policy required. King opened the trunk and noticed garbage bags covering two s quare boxes. Also, on the floor of the trunk, King saw several plastic sandwich bags. Before the inventory proceeded any further, however, it started to rain. King told the dispatcher to cancel the towing service so that he and Smith would not have to search the car in the rain. With assistance from another trooper, King and Smith drove the rental car to a covered overpass near the FHP station. Resuming the sear ch, they discovered that the boxes in the trunk were actually safes, in which Co oper denied having any ownership stake. After Smith's K-9 unit detected narcotics upon sniffing the exterior of the safes, Smith pried them open with a crowbar and found cocaine, cocaine base, scales and other drug paraphernalia. Eventually, after a "thorough search," the car was towed and returned to Budge t. Budget charged Cooper's credit card for use of the car through January 25. On February 28, a federal grand jury returned a three-count indictment against Cooper, charging him with: (1) conspiracy to distribute cocaine base and possess cocaine with intent to manufacture cocaine base, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) possession of cocaine with intent to manufacture cocaine base, in viol ation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 56 The district court partially granted Cooper's motion to suppress with respect to all statements that Cooper made after his invocation of the right to remain silent. This portion of the order, however, is not at issue.

7 Because of Cooper's two prior felony drug convictions, the federal "three-strikes" law mandated the life imprisonment sentence. See21 U.S.C. § 841(b)(1)(A). Cooper moved to suppress the evidence found insi de the rental car, contending that King stopped him without probable cause and th at the FHP's warrantless search violated his Fourth Amendment rights. After an evidentiary hearing, the distri ct court denied Cooper's motion and adopted the magistrate judge's recommended conclusions that: (1) the stop was permissible; and (2) Cooper lacked standing to challenge the search because "[ a]fter the rental agreement expired and he failed to seek its extension, [Cooper] did not have a leg itimate expectation of privacy in the rental car." 6 The jury convicted Cooper on all three counts, and the district court sentenced him to life in prison. 7
II. ISSUES Cooper raises two issues on appeal: (1) whether the district court clearly erred in finding that the FHP conducted a permissible tra ffic stop; and (2) whether the di strict court erred in concluding that he lacked standing to challenge the search of the rental car and the items therein.
III. CONTENTIONS As to the first issue, Cooper contends that King's testimony that he stopped Cooper for an improper lane change was not credible. Cooper insi sts that he did not viol ate any traffic laws and that King stopped him only to inve stigate for drugs. The government points to the record, arguing that sufficient evidence supports the district court's finding and credibility assessment. As to the second issue, Cooper argues that he subjectively and objectively expected privacy in the rental car, regardless of his failure to extend the due date. In support of his subjective expectation, Cooper points to his prior course of dealings with Budget and its leniency regardingoverdue rental cars. Cooper further contends that society is willing to accept his expectation as reasonable because Budget had not acted upon its cont ractual right to repossess the vehicle at the time of the FHP's warrantless search. The governme nt, conversely, maintains that the rental car's overdue status renders unreasonable any expectation of privacy on Cooper's part. The government further contends that Budget exercised its right to repossess through the FHP and, therefore, Cooper was neither an authorized driver nor in possession of the rental car at th e time of the inventory search.
IV. DISCUSSION We review the district court's findings of f act, including the permissibility of a stop, for clear

error. See United States v. Smith, 39 F.3d 1143, 1144 (11th Cir.1994). We review the district court's application of law to facts, including the leg itimacy of a driver's expectation of privacy, de novo. See United States v. Thompson, 928 F.2d 1060, 1063 (11th Cir.), cert. denied, 502 U.S. 897, 112 S.Ct. 270, 116 L.Ed.2d 222 (1991). A. The Stop As the district court correctly stated, law enforcement "may stop a vehicle when there is probable cause to believe that the driver is viola ting any one of the multitude of applicable traffic and equipment regulations relating to the operation of motor vehicles." United States v. Strickland, 902 F.2d 937, 940 (11th Cir.1990) (internal quotation marks, citations and ellipses omitted). In Florida, a driver may change lanes only "with safe ty and without interferi ng with the safe operation of any vehicle approaching from the same di rection." Fla. Stat. § 316.085(2) (1995). Upon due consideration of the record, we conclude that the di strict court did not clearlyerr in finding that King had probable cause to believe that Cooper violat ed section 316.085(2). King testified that Cooper merged into his lane without a safe amount of di stance between their cars, causing King to apply hisbrakes to avoid an accident. The district court found this testimony more credible than Cooper's testimony that King intentionally accelerated to pr event him from exiting the highway. We find no basis to second-guess the district court's credibility assessment. See Thompson, 928 F.2d at 1063. Accordingly, we affirm the district court's conclusion that the stop was permissible and not pretextual. B. Standing The Fourth Amendment prohibits law enforcement from conducting "unreasonable searches and seizures." U.S. Const. amend. IV. To have standing to challenge a search, one must manifest a subjective expectation of privacy in the invaded area that "society is prepared to recognize as reasonable." Rakas v. Illinois, 439 U.S. 128, 143 & n. 12, 99 S.Ct. 421, 430 & n. 12, 58 L.Ed.2d 387 (1978). "[T]he individual's expectation, view ed objectively, [must be] justifiable under the circumstances." Smith v. Maryland, 442 U.S. 735, 740-41, 99 S.Ct. 2577, 2580-81, 61 L.Ed.2d 220 (1979). The individual challenging the search bears the burdens of proof and persuasion. See United States v. Eyster, 948 F.2d 1196, 1209 (11th Cir.1991). The government does not seriously dispute Cooper' s subjective expectation of privacy in the rental car, even after the rental contract expired. Cooper testified that, based on his prior course of dealings with Budget, returning a rental car afte r the due date is "no problem" as long as he has ample funds on his credit card to pay for it. Cooper's awareness that Budget could exercise its contractual right to repossess the rental car anytim e after the due date does not alter the sincerity of his belief that he retained privacy in the car as long as he possessed and payed for it. Nor does his acknowledgment that he should have contacted B udget to extend the due date. Consequently, we move to the second part of the analysis, the objective reasonableness of Cooper's expectation of privacy.8 Accord United States v. Hargrove, 647 F.2d 411, 413 (4th Cir.1981) (driver lacks a reasonable expectation of privacy in a vehicle that he or she stole).

9 The Kye Soo Leecourt also recognized the passenger's privacy right. 898 F.2d at 1038. In doing so, the Fifth Circuit did not discuss whether the rental company approved of this arrangement. See 898 F.2d at 1035-38. The Fifth Circuit later distinguished Kye Soo Leeand denied standing to a driver using a rental car with only the passenger's permission and not that of the renter or rental company. See United States v. Riazco , 91 F.3d 752, 753-55 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 497, 136 L.Ed.2d 389 (1996). Although fact-specific, case law has established some general boundaries as to what society will accept as reasonable regarding privacy in a mo tor vehicle. A passenger usually lacks a privacy interest in a vehicle that the passenger neither owns nor rents, regardless of whether the driver owns or rents it. See e.g., Rakas, 439 U.S. at 130, 140, 148-49, 99 S.Ct. at 423, 428-29, 432-33; United States v. Eylicio-Montoya, 70 F.3d 1158, 1162 (10th Cir.1995). On the other hand, a driver using a vehicle with the permission of an absent owner has been found to possess a reasonable expectation of privacy therein. See United States v. Garcia, 897 F.2d 1413, 1416-18 (7th Cir.1990). 8 At least one court has extended this privacy right to a driver who had the absent renter's permission. See United States v. Kye Soo Lee, 898 F.2d 1034, 1038 (5th Cir.1990). 9 The legitimacy of a driver's expectation of privacy in an overdue rental car, however, is apparently an issue of first impression in this and other circuits. Nevertheless, we find several indications that under the circumstances of this cas e, Cooper's expectation of privacy is a reasonable one. First, a prior panel of this court has indicated in dicta a willingness to legitimize such an expectation of privacy. In United States v. Miller, 821 F.2d 546, 548 (11th Cir.1987), the court held that a driver possessed a legitimate expectation of privacy in a borrowed car. The Miller court stated that the "nearly identical" case of United States v. Smith, 799 F.2d 704 (11th Cir.1986), "supported" its holding. 821 F.2d at 546, 548-49. The Miller court explained that, in Smith, "there [was] no suggestion that the defendant lacked the requisite standing to challenge the search," even though he10 In Smith, the court held that law enforcement officers' stop of the rental car based on the defendants fitting a drug courier profile was unreasonable under the Fourth Amendment. 799 F.2d at 712. We stress that our reference to the facts of Smith and the attendant dicta in Miller are merely for indicia purposes, i.e., we do not hold that a driver possesses a reasonable expectation of privacy in a rental car that is three-weeks overdue. "was driving a rented car and could only pr oduce a rental contract that had expired three weeks earlier. " 821 F.2d at 548-49 (emphasis added). 10 In addition to recognizing this dicta in Miller, we note that Smith originated in the very same federal district as this case. Contrary to its present dispute regarding Cooper's privacy rights in a four-day overdue rental car, the United States A ttorney's Office apparently did not contest the Smith driver's privacy right in a three-week overdue rental car. See799 F.2d at 706 n. 1. Perhaps that arm of the government, at least at one time, was willing to accept the reasonableness of a driver's expectation of privacy in an overdue rental car under similar circumstances. The same could arguably be said of the FHP, inthat King initially asked Cooper fo r permission to search the car, even though King knew that the rental contract had expired. We find additional indicia of reasonabl eness from a district court opinion, United States v. Kelly, 414 F.Supp. 1131 (W.D.Mo.1976), rev'd on other grounds, 547 F.2d 82 (8th Cir.1977). In that case, Kelly rented a car and promised to return it to the rental comp any no later than December 2. 414 F.Supp. at 1144. More than one month after the rental contract had expired, law enforcement officers arrested Kelly in a motel room on an unrelated matter. 414 F.Supp. at 1143. During the arrest, law enforcement officers seized car keys found on Kelly's person and conducted an initial search of the overdue rental car. 414 F.Supp. at 1143, 547 F.2d at 84. Pursuant to its policy, the law enforcement officers directed a private company to tow the car. 414 F.Supp. at 1144. The next day, the law enforcement officers asked the rental comp any for consent to search its car. Consenting to the search, the rental company stated that it want ed to repossess the car because Kelly's lease was11 The district court rejected as irrelevant the rental company's consent to search the car, in light of its conclusion that the defendant retained privacy rights in it. See Kelly, 414 F.Supp. at 1146 (the defendant's legitimate expectation of privacy "cannot be vitiated by the consent to the search by the rental agency"). The government di d not appeal the district court's suppression of the evidence seized from the glove compartment. See547 F.2d at 83. Kelly, however, successfully sought reversal of the district court's failure to suppress the derivative evidence. 547 F.2d at 86. The Eighth Circuit held that "the government clearly failed to establish that the [derivative] evidence would have inevitably been gained without the illegal search [of the glove compartment]." 547 F.2d at 86 (emphasis added).

12 Like our reference to Smith and Miller, our reference to Kellydoes not mean that we endorse its holding. overdue and he had a large outstanding bill. 414 F.Supp. at 1144. During the second warrantless search, the law enforcement officers found incrimin ating evidence in the glove compartment, which led to the discovery of other incriminating evidence. 547 F.2d at 85, 414 F.Supp. at 1131. Kelly moved to suppress the evidence seized fr om the glove compartment and all derivative evidence. Kelly, 547 F.2d at 85. The district court granted the motion to suppress as to the items found in the glove compartment, but denied it as to the derivative evidence. 414 F.Supp. 1146, 547 F.2d at 85. The district court he ld that "the automobile had not been repossessed by the rental agency at the time of [Kelly's] arrest, and theref ore [Kelly] had a reasonable expectation of privacy with respect to [its] interior." 414 F.Supp. at 1146. The district court then reached the merits of Kelly's challenge and found no applicable exceptions to the warrant requirement to justify the search. 414 F.Supp. at 1146. 11 Cooper's expectation of privacy was va stly more reasonable than Kelly's. 12 First, Cooper's rental contract expired four days prior to the sear ch; Kelly's rental contract expired more than one month prior to the search. Second, at the time of their initial contact with law enforcement officers, Cooper was in actual possession of the rental car, while Kelly was merely in constructive possession. Third, Cooper paid Budget in full; Kelly had a larg e unpaid bill. Finally, neither rental company13 But cf. United States v. Muhammad, 58 F.3d 353, 354-55 (8th Cir.1995) (holding that the driver lacked standing to challenge search of a rental car because he failed to present "at least some evidence of consent or permission" from either the rental company or "the only person authorized under the lease agreement to drive the vehicle") ( per curiam ). took any affirmative steps to repossess the car prior to law enforcement officers' inquiries. Thus, we have dicta from a prior panel of this court, past inaction from the government, the FHP's inquiry of Cooper and a district court opinion indicating the reasonableness of Cooper's expectation of privacy. None of the cases upon which the government relies militate against such a finding. First, we find no support for the government's view that Cooper's rights were functionally equivalent to those of an unauthorized driver at the time of the search. Th e only "car" case that the government advances is United States v. Wellons, 32 F.3d 117 (4th Cir.1994), cert. denied, 513 U.S. 1157, 115 S.Ct. 1115, 130 L.Ed.2d 1079 (1995), upon which the district court also relied. In that case, Wellons's co-defendant rented a car from Hertz Corporation and listed himself as the sole authorized driver. With the co-defendant's permission but in his absence, Wellons drove the car. 32 F.3d at 118. When law enforcement officers stopped Wellons for speeding, the K-9 unit indicated the presence of drugs in the car. 32 F.3d at 118-19. Law enfor cement officers searched the car without a warrant and found cocaine and heroin in Wellons's luggage. 32 F.3d at 119. Hertz later instructed the officers to impound the car since Wellons did not have its permission to drive the vehicle. 32 F.3d at 118-19 & n. 2. The district court denied Wellons's motion to suppress the drugs. See32 F.3d at 118. On appeal, the Fourth Circuit addressed whether the officers' warrantless search of the car violated Wellons's Fourth Amendment rights. 32 F.3d at119. The court held that Wellons, as "an unauthorized driver of the rental car, had no legitimate privacy inte rest in the car." 32 F.3d at 119. 13 Unlike Wellons, Cooper was listed on the rental contract as an authorized driver. Cooper14 The actions of the rental companies reflect the difference between these relationships. Hertz instructed the police to "impound" the car, whereas Budget wanted to merely "tow" it. See Wellons, 32 F.3d at 119. and Budget, in contrast to Wellons and Hertz, were in privity of contract (albeit in breach) at the time of the search. As such, Cooper's expectation of privacy was materiallydifferent from that of Wellons. 14 Recognizing the reasonableness of Cooper's expect ation of privacy also reconciles with the hotel/motel/locker cases upon which the government relies to support its argument that one loses a legitimate expectation of privacy in rented property the moment the rental contract expires. In United States v. Allen, 106 F.3d 695, 697 (6th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 2467, 138 L.Ed.2d 223 (1997), Allen rented a motel room for two nights. After checkout time on the second day, the motel manager went to Allen's room to as k him whether he wanted to extend his stay. In the room, the manager could not find Allen but di d find his marijuana. Before contacting law enforcement, the manager changed the lock so th at Allen could not reenter. Law enforcement officers arrested Allen upon his return, obtained a warrant and seized the marijuana. 106 F.3d at 697. The Sixth Circuit affirmed the district court's denial of Alle n's motion to suppress, holding that "[o]nce the manager, through private action, t ook possession of the motel room, Allen could no longer assert a legitimate privacy interest in its contents." 106 F.3d at 699 (internal footnote omitted). Budget, unlike the motel manager in Allen, had not repossessed the rented property prior to the challenged search. Further, the government's argument that the law enforcement officers acted as Budget's repossession agent lacks merit because, unlike the motel manager's changing the lock on the door to Allen's room, the FHP's assertion of control over Cooper's rental car was not "private action." 106 F.3d at 699.15 The district court cited Huffhines as the only support for its conclusion that "[a]fter the rental agreement expired and he failed to seek its extension, [Cooper] did not have a legitimate expectation of privacy in the rental car."

16 The Ramirez court also concluded that the hotel manager's repossession and search did not constitute state action since he acted without direction from law enforcement. See810 F.2d at 1341-42. Just as distinguishable as Allen are United States v. Huffhines, 967 F.2d 314 (9th Cir.1992); United States v. Reyes, 908 F.2d 281 (8th Cir.1990), cert. denied, 499 U.S. 908, 111 S.Ct. 1111, 113 L.Ed.2d 220 (1991); and United States v. Ramirez, 810 F.2d 1338 (5th Cir.), cert. denied, 481 U.S. 1072, 107 S.Ct. 2469, 95 L.Ed.2d 877 (1987). In Huffhines, the Ninth Circuit held that law enforcement's warrantless search of Huffhines's mo tel room did not violate the Fourth Amendment because the motel assistant manager consented "after he repossessed the room for nonpayment of rent." 967 F.2d at 318. 15 In Reyes, the Eighth Circuit held that law enforcement's warrantless search of Reyes's storage locker did not violate the F ourth Amendment because his rental contract had expired eleven days prior to it and, therefore, Reyes "could not have had a legitimate expectation of privacy at the time of the search." 908 F.2d at 286. The Reyes court emphasized the fact that the landlord had obstructed the lock on account of Reyes's nonpayment. 908 F.2d at 286. Finally, in Ramirez, the Fifth Circuit held that a hotel manager' s search of a room af ter check-out time did not violate the Fourth Amendment because the defendants had "abandoned" the room and, therefore, "forfeited their reasonable expectation of privacy in it." 810 F.2d at 1341. 16
Like Allen, Huffhines, Reyes and Ramirez involved repossession prior to the presence of law enforcement. Unlike Budget, the lessors in Huffhines, Reyes and Ramirez took affirmative steps to regain control of the rented property. In Huffhines and Reyes, the lessors changed or obstructed the locks. Huffhines, 967 F.2d at 316; Reyes, 908 F.2d at 284. In Ramirez, the lessor entered the room and prepared it for new occupants. 810 F.2d at 1340. Budget, on the other hand, did not report the17 Cf. Hughes v. State , 897 S.W.2d 285, 305 (Tex.Cr.App.1994) (holding that the defendant lacked standing to challenge the search of rental car because the rental company signed a warrant for the defendant's arrest nearly two months after the rental contract expired), cert. denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995).

18 See also Kelly, 414 F.Supp. at 1146 ("The fact that the rental agency may have had a legal right to repossess the automobile does not strip defendant of Fourth Amendment protection."). See generally Blumel v. Mylander , 954 F.Supp. 1547, 1556 (M.D.Fla.1997) ("Constitutional duties trump contractual limitations!"). car stolen, seek an arrest warrant, issue notice of its intent to repossess or otherwise attempt to enforce any of its contractual or legal rights agai nst Cooper at any time prio r to the FHP's phone call on January 24. 17 If we were to accept the government's position, a driver could not expect privacy in a rental car even one minute after the rental contract expi red. In other words, the rental company's dormant right of repossession would govern the scope of the driver's Fourth Amendment protections. The Supreme Court, however, highly disfavors such hard-and-fast rules. See Rakas, 439 U.S. at 143, 99 S.Ct. at 430 (stating that "arcane distinctions developed in property and tort law ... ought not ... control" the reasonableness of an expectation of privacy) (citing Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733, 4 L.Ed.2d 697 (1960)). 18 Declining to adopt this interpretation of the Fourth Amendment is especially appropriate where, as here, a simple phone call could have extended the rental contract past the date of th e warrantless search. Cooper's failure to call Budget to extend the due date four days may have subject ed him to civil liability, but it should not foreclose his ability to raise a Fourth Amendment challenge to the FHP's search of the rental car in a criminal proceeding. In our view, Cooper retained a sufficient amount of control and possession over the rental car for it to fall within the zone of constitutional sanctity. Accordingly, and upon careful consideration of th e circumstances of this case, we hold that society is prepared to accept as reasonable Cooper's expectation of privacy in the overdue rental car19 Because we leave it to the district court to address the constitutionality of the search, we do not vacate Cooper's conviction and sentence. Cf. Miller, 821 F.2d at 546, 549-51 (addressing the merits of the driver's motion to suppress, even though the district court did not, apparently because the parties fully briefed the issues and the facts surrounding the stop and search mirrored those of the "nearly identical" case of Smith ). and, therefore, he has standing to challenge law en forcement's search of the glove compartment, the trunk and the items therein.
V. CONCLUSION For the foregoing reasons, we (1) affirm the district court's finding that the FHP validly stopped Cooper; (2) reverse the district court's conclusion that Cooper lacked standing to challenge the warrantless search of the rental car and the items therein; and (3) remand this case to the district court with instructions to address the merits of Cooper's motion to suppress and for further proceedings consistent with this opinion. 19 AFFIRMED IN PART; REVERSED and REMANDED IN PART.