Concurring in part/Dissenting in part.
T1 I concur in the result reached, however, I do not agree with the Opinion's analysis and determination of Proposition One. Instead, I find that Appellee did not have the capacity to claim protection of the Fourth Amendment in the present case.1
*1199T2 In reaching the contrary conclusion, the Opinion overlooks more persuasive authority and mistakenly applies the wrong analysis. The Opinion relies upon United States v. Soto, 988 F.2d 1548 (10th Cir.1993). However, Soto is distinguishable from the present case. In Soto, the defendant indicated that the car had been loaned to him by his uncle, produced a registration bearing that name, and a computer check revealed that the vehicle had not been reported stolen. Soto, 988 F.2d at 1550, 1553.
11 3 In the present case, Appellee was driving a van eastbound on Interstate 40 in Eastern Oklahoma when Trooper Hyde stopped him for two traffic violations. (P.H. 18-14). Appellee informed Hyde that he had rented the van in California and intended to drop the vehicle off in his home state of North Carolina. (P.H. 14-15, 17, 88). He further explained that he had flown to California by himself to look around. He rented the vehicle to drive home because there was a mechanical issue with his plane. (P.H. 17-19). Appellee was unable to provide Hyde with a copy of the rental agreement. (P.H. 15, 29). Trooper Hyde checked and determined that the van had not been reported stolen. (PH. 30). Hyde then contacted the rental company. He discovered that Appellee was not on the rental agreement, the van had been rented by a third party that was not present, there were no additional drivers listed with the rental agency, and the van was supposed to be returned to the airport in San Francisco. (P.H. 14-16, 18, 32-83). Appellee overheard Hyde's conversation with the rental company and changed his story. Appellee informed Hyde that he had met a friend in Chicago; they had flown to California, and stayed together for the duration of their trip. He claimed that this friend had rented the vehicle for him and provided Trooper Hyde with the name under which he thought the vehicle was rented. (P.H. 18-19). Based upon Appellee's inconsistent statements and his physical behavior, Trooper Hyde did not believe that Appellee was being truthful when he claimed that a friend had rented the vehicle for him. (P.H. 35).
T4 As Soto did not involve a non-authorized driver operating a rental car, it is clearly distinguishable from the present case. Soto may also be distinguished from the present case based upon the fact that Appel-lee provided confllctmg stories as to how he acqulred possession of the van and the Trooper's belief that Appellee was not being truthful.
T5 Instead, the present case is nearly identical 'to the Tenth Cireuit's opinion in United States v. Roper, 918 F.2d 885 (10th Cir.1990). In Roper, the defendant was driving a vehicle through Oklahoma that the backseat passenger's common-law wife had rented. Id., 918 F.2d at 886. The rental agreement stated that the car could only be driven by the lessee and could not be driven outside the State of California without written permission. Id. Neither the defendant nor the backseat passenger was listed as an additional driver on the rental contract. Id., 918 F.2d at 888. 'The Tenth Circuit determined that the defendant did not have standing to challenge the search of the vehicle he was driving because he was not the owner nor was he in lawful possession or custody of the vehicle at the time of the stop. Id., 918 F.2d at 887-88.
_11 6 Roper cited and followed the opinion in United States v. Obregon, 748 F.2d 1371 (10th Cir.1984). Id., 918 F.2d at 887-88. In Obregon, the defendant was driving a rented vehicle and was not named on the rental agreement or any other documents, either as the renter or as an authorized driver. Obregon, 748 F.2d at 1374. The Tenth Cireuit determined that the district court's holding that the defendant did not have a legitimate expectation of privacy in the car he was driving and therefore did not have standing to challenge the stop and subsequent search of the car by police was not clearly erroneous. Id., 748 F.2d at 1375.
*1200T7 Although none of these cases are controlling on this Court, I find that Roper and Obregon are much more persuasive as the facts in those two cases are nearly identical to the present case. The opinion in Soto is simply too far afield.
T8 The Opinion also relies upon Parker v. State, 182 SW.3d 923 (Tex.Crim.App.2006), however, the Texas Court of Criminal Appeals did not find that an unauthorized operator of a rental car has a legitimate expectation of privacy in the vehicle Id., 182 S.W.3d at 926-27. Instead, Parker held that:
We disagree with the court of appeals' use of a bright-line rule stating that only those listed on a rental agreement as authorized drivers have an expectation of privacy in the vehicle and standing to contest a search. Instead, the court should have considered the cireumstances surrounding the use of the vehicle, as well as the nature of the relationship between the driver and the lessee, to determine whether the driver had a legitimate expectation of privacy that society would recognize as reasonable as outlined in Smith v. Maryland ....
Id., 182 S.W.3d at 927, citing Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
T9 In Parker, the defendant's girlfriend, the renter of the vehicle, testified at the suppression hearing that she rented the car because her personal vehicle was being repaired. Id., 182 SW.3d at 924, 927. Although the defendant was not listed on the rental agreement as an authorized driver, the girlfriend intended to share the rental car with the defendant in the same way they normally shared her car. Id., 182 SW.8d at 924. Because the record reflected that the defendant had the renter's express permission to drive the car and there was nothing to suggest that the defendant knew the terms of the rental agreement or that he was not listed as an authorized driver, the court found that the defendant had a reasonable expectation of privacy in the vehicle Id., 182 S.W.3d at 927.
10 The Texas Court of Criminal Appeals is not the only court to reject a bright-line rule. In United States v. Kennedy, 638 F.3d 159 (3rd Cir.2011), the Third Cireuit Court of Appeals determined whether the driver of a rental car that had been lent the car by the renter, but who had not been listed on the rental agreement as an authorized driver, had a legitimate expectation of privacy in the car. Id., 638 F.3d at 161.
[Wle concur with the majority of circuits that have considered this factual scenario and conclude that, as a general rule, the driver of a rental car who has been lent the car by the renter, but who is not listed on the rental agreement as an authorized driver, lacks a legitimate expectation of privacy in the car unless there exist extraordinary cireumstances suggesting an expectation of privacy. See, e.g., United States v. Seeley, 331 F.3d 471, 472 n. 1 (5th Cir.2003)(per curiam) (finding that driver of rental car lacked standing where he was not the renter or authorized driver); United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994)(holding that unauthorized driver of rental car who had been given permission to drive by co-defendant, an authorized driver, lacked standing); United States v. Roper, 918 F.2d 885, 887-88 (10th Cir.1990) (defendant lacked standing where car he was driving was rented by co-defendant's common law wife and he was not listed as additional driver in rental contract); cf. United States v. Smith, 263 F.3d 571, 586 (6th Cir.2001) (noting that "as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle" but nevertheless finding that the defendant had standing in light of the "truly unique" facts of that case).
Id., 638 F.3d at 165.
{11 In United States v. Smith, 263 F.3d 571 (6th Cir.2001), the Sixth Cireuit Court of Appeals stated:
We acknowledge that as a general rule, an unauthorized driver of a rental vehicle does not have a legitimate expectation of privacy in the vehicle, and therefore does not have standing to contest the legality of a search of the vehicle. However, we refuse to adopt a bright line test, as the government seems to advocate, based solely on whether the driver of a rental vehicle *1201is listed on the rental agreement as an authorized driver. Such a rigid test is inappropriate, given that we must determine whether Smith had a legitimate expectation of privacy which was reasonable in light of all the surrounding cireum-stances. See Rakas, 439 U.S. at 152, 99 S.Ct. 421 (Powell, J., concurring). "In considering the reasonableness of asserted privacy expectations, the [Supreme] Court has recognized that no single factor invariably will be determinative." Id.
Id., 263 F.3d at 586. In Smith, the Sixth Circuit distinguished Obregon and related cases:
Smith is unlike any of the drivers in any of these cases, because he personally had a business relationship with the rental company. Smith called the rental company to reserve the vehicle and was given a reservation number. He provided the company with his credit card number, and that ered-it card was subsequently billed for the rental of the vehicle His wife, Tracy Smith, picked up the vehicle using the confirmation number given to Smith by the company. Smith had an intimate relationship with Tracy Smith, the authorized driver of the vehicle who gave him permission to drive it, This is not a case in which a driver was simply granted permission by the "renter" of the vehicle, because in this case Smith was the de fucto renter of the vehicle. His relationships to the vehicle and its authorized driver were not "attenuated" as were the relationships in Obregon, Sanches, Wellons and Muhammad. Although Smith was not technically in privity of contract with the rental company as was the driver in Cooper, he did have a business relationship with the company. His business relationship with the rental company and his intimate relationship with his wife, the authorized driver of the vehicle, are relationships which are recognized by law and society. Based on these relationships, as well as the fact that he personally paid for the vehicle, Smith had both a subjective and an objective legitimate expectation of privacy.
Id., 263 F.3d at 586-87.
112 I, too, find that a bright-line rule is inconsistent with the Supreme Court's established Fourth Amendment jurisprudence. The core of the Fourth Amendment is " [the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 2041, 150 L.Ed.2d 94 (2001). To claim the protection of the Fourth Amendment an individual must have a "legitimate expectation of privacy" that has been invaded by the government. Smith v. Maryland, 442 U.S. at 740, 99 S.Ct. at 2580, quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). The inquiry as to whether an individual has a legitimate expectation of privacy embraces two questions. Id. First, whether the individual, by his conduct has exhibited an actual (subjective) expectation of privacy, that is to say that, the individual has shown that he seeks to preserve something as private. Id. Second, whether the individual's subjective expectation of privacy, viewed objectively, is justifiable under the cireumstances, namely, one that society is prepared to recognize as reasonable. Id. This Court is not free to adopt a bright-line rule but must consider the individual's conduct as well as the surrounding circumstances.
113 I further note that the individual asserting the right bears the burden of proving that he had a legitimate expectation of privacy in the area searched. Anderson v. State, 1999 OK CR 44, ¶ 18, 992 P.2d 409, 417, citing Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2561, 65 LEd.2d 633 (1980). The Supreme Court has further delineated what must be shown to establish that a subjective expectation of privacy is justifiable under the cireumstances.
[In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society."
*1202Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 472, 142 L.Ed.2d 373 (1998), quoting Rakas, 439 U.S. at 143-44 n. 12, 99 S.Ct. at 430 n. 12.
T14 Applying the proper analysis to the present case, Appellee did not prove that he had a legitimate expectation of privacy in the rental van. Appellee's subjective expectation of privacy, if any, in the van was not justifiable under the cireumstances. Appellee never established a source for the expectation in either property law or as recognized by society.
115 As to property law, Appellee never established that he was lawfully in possession of the van. The record reveals that Appellee did not rent the van. He was not listed as an authorized driver on the rental agreement. Appellee did not present any testimony or evidence in support of his motion to suppress. He simply relied upon the Trooper's testimony from the preliminary hearing. As such, the present case is distinguishable from Parker. The Trooper's testimony as to Ap-pellee's contradictory statements as to how he came into possession of the van are simply insufficient to prove that the renter had permitted Appellee to drive the van. This is particularly the circumstance where the Trooper has validly testified that he suspected Appellee was not being truthful.
T16 As to societal recognition, Appellee's relationships to the vehicle and its authorized driver were attenuated. There is no evi-denee of a prior vehicle sharing arrangement between boyfriend and girlfriend as shown in Porker. There is no indication of a close relationship with the rental company and the renter as shown in Smith,
117 Reviewing the surrounding cireum-stances, Appellee failed to establish that he had the capacity to claim protection of the Fourth Amendment as to the search of the rental van. Therefore, I would reverse and remand the case on this basis.
. In Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978), the Supreme Court distinguished between the traditional concept of "standing" and the "capacity to claim the protection of the Fourth Amendment." However, I note that the term "standing" is sometimes *1199still used. See Davis v. United States, - U.S. -, 131 S.Ct 2419, 2431, 180 L.Ed.2d 285 (2011); Kentucky v. King, - U.S. -, 131 S.Ct. 1849, 1854 n. 1, 179 L.Ed.2d 865 (2011); Brendlin v. California, 551 U.S. 249, 259, 127 S.Ct. 2400, 2408, 168 L.Ed.2d 132 (2007); Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 1532, 164 L.Ed.2d 208 (2006) (Roberts, C.J., and Scalia, J., dissenting).