United States v. Christopher Montalvo Flores ( 2023 )

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)
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.
2
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).
3
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.
4
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.
5
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
6
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.
7
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.
8
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.
9
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 [Montalvo-
Flores]”). 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
10
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
11
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.
12
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
9
Montalvo-Holmes both possessed and operated the car. 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
13
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
14
(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”).
15
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 context strongly 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.
16
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 property-
based 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.
1
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
2
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 Montalvo-
Flores 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 Montalvo-
Flores’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.
3
“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.
4
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” Montalvo-
Flores. App. 163. But all the testimony about whether another
officer saw Montalvo-Flores operate the car or exchange the
5
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.
6
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.
7
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, Montalvo-
Flores’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.
8
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 Montalvo-
Flores’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.
9
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 Montalvo-
Flores 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
10
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
11
District Court’s order denying the motion to suppress and its
judgment of conviction. With respect, I dissent.
12