I am writing a trial brief at the request of my judge after a hearing on a motion to suppress. D was stopped on I-45 in our fair county for the offense of "following too closely" or not maintaining a safe distance from the car in front of him. Upon interviewing D, the interdiction officer who made the stop learned that the car D was driving had been rented by another person, and D was not on the rental agreement. D also told the officer that he was making a quick turn-around trip from Dallas to Houston and was returning to Dallas, all in the same day. No luggage was visible in the passenger area of the car, but fast food wrappers were in plain sight (Operation Pipeline rears its head). After issuing a verbal warning on the traffic violation, officer requests consent to search the vehicle, DENIED. Based on his reasonable suspicion for narcotics trafficking, officer runs a canine sniff around the vehicle, dog alerts, car is searched, and 61 pounds of pot found in the trunk.

Issue #1: standing - rental car, D not on agreement. Nite v. State 882 SW2d 587 seems to be right on point, but am I missing something?

Issue #2 (should #1 fail): reasonable suspicion. My experienced interdiction officer cited the totality of the circumstances outlined above as the basis of his reasonable suspicion. Any ideas?

This is an issue that comes up alot with the troopers. My research shows that in the past three years the majority of Texas appellate courts (not the Court of Criminal Appeals--I don't think they have directly addressed the issue yet) have held that a defendant lacks standing to object to a search of a rental car if he is neither the renter nor an authorized driver if the rental contract forbids anyone but those persons from operating the vehicle. The most recent case is Maysonet v. State out of the Sixth District Court of Appeals (No. 06-01-00024-CR)which stated that "a person driving a rental vehicle does not have standing to challenge a search of the vehicle if driving the vehicle is prohibited by the vehicle rental agreement, even if he or she has the permission of the person who rented the vehicle." However, two panels of the Fifth Circuit have come down on opposite sides of that particular fence. Take a look at United States v. Boruff, 909 F.2d 111, and United States v. Lee, 898 F.2d 1034.

The Fifth Circuit just issued an opinion in United States v. Santiago in which they held that the officer's search (based on consent) was invalid because the officer had no reason to detain Santiago once he had finished the DL and warrant checks and issued the warning on the traffic violation. It seems to me that the courts are looking a lot harder at what justifies "additional articulable reasonable suspicion" that the person is carrying contraband.

The officer's "articulable reasons" for suspecting he was dealing with a drug courier, from the facts you've given, seem a little slim. Surely more info was developed during the hearing, e.g. demeanor of the driver, the driver's stated reason for this one-day round trip, whether or not he knew the fellow who had rented the car, and his reasons for renting him the car.

Even so, subtle fact patterns, coupled with the experience of an officer can provide enough "articulable reasons," to allow an investigative stop under Terry v. Ohio, 88 S.Ct. 186. It is helpful to re-read that seminal case from time to time. The articulable reasons for the officer's man-handling and partial disrobing of the suspects was very subtle indeed, and yet the Supremes, at the heighth of their namby-pamby era, upheld the search.

There is a balancing of the intrusion by the officer with the amount of evidence he has to sustain an investigative stop. In your case, the only intrusion by the officer was waiting for the drug dog to sniff around the def's car. Once the dog alerted he had PC to search.

US v. Sharp, 105 S.Ct. 568, and US v. Cortez, 101 S.Ct. 690 may help you. In both cases the articulable facts were very subtle, and yet the Supremes upheld the investigative detention, which led to the discovery of PC and then the evidence. In Sharp the court held that there was no "bright line" period of time an investigative stop could be held to. In that case the vehicle was held for 20 minutes until the DEA agent could come to the truck and check it out.