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Posted on Thursday, June 21, 2018

Searching for the Fourth Amendment in the Trunk of a Rental Car

Byrd v. United States, ___ U.S. ___, No. 16-1371 (14 May 2018)

One day in September 2014, Terrence Byrd and his friend Latasha Reed drove in Byrd’s Honda Accord to a Budget car-rental facility in New Jersey.  Byrd stayed in the parking lot in his Honda while Reed went to the Budget desk and rented a Ford Fusion.  Reed signed a rental agreement stating:

“I understand that the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee (with the renter’s permission, while on company business), or a person who appears at the time of the rental and signs an Additional Driver Form. These other drivers must also be at least 25 years old and validly licensed.

“PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT. THIS MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID AND MY BEING FULLY RESPONSIBLE FOR ALL LOSS OR DAMAGE, INCLUDING LIABILITY TO THIRD PARTIES.”

In filling out the paperwork for the rental agreement, Reed did not list an additional driver.

With the rental keys in hand, Reed returned to the parking lot and gave them to Byrd. The two then left the facility in separate cars—she in his Honda, he in the rental car.  Byrd returned to his home and later departed in the car alone and headed toward Pittsburgh, Pennsylvania.  After driving roughly half the distance to Pittsburgh, Byrd passed State Trooper David Long, who was parked in the median strip.  Long was suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car.  Long knew that the Ford Fusion was a rental car because one of its windows contained a barcode.  Based on these observations, he decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction.

A second officer named Martin arrived on the scene.  Byrd did not consent to a search of the car, but Martin noted that Byrd was not listed on the rental agreement, and he told Officer Long that Byrd “has no expectation of privacy.”  Whereupon, the officers searched the car and found 49 bricks of heroin.

Byrd moved to suppress the heroin as the fruit of an unlawful search.  The district court denied the motion and the U.S. Court of Appeals for the 3rd Circuit affirmed.  Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

The Supreme Court said that “[f]ew protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.”  The Supreme Court “has viewed with disfavor practices that permit police officers unbridled discretion to rummage at will among a person’s private effects.”  Arizona v. Gant, 556 U.S. 332, 345 (2009).  The Court acknowledged that there is a diminished expectation of privacy in automobiles, which often permits officers to dispense with obtaining a warrant before conducting a lawful search. California v. Acevedo, 500 U.S. 565, 579 (1991).  However, whether a warrant is required is a separate question from the one that the Court addressed in Byrd, which is whether Byrd had his own 4th Amendment rights infringed by the search of the rental car, when he was not listed in the rental agreement as an authorized driver.

The Court said that the answer to that question depends on whether the person claiming the constitutional violation has a legitimate expectation of privacy in the premises searched.  An expectation of privacy need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. Katz v. United States, 389 U.S. 347 (1967).  Legitimate expectations of privacy are derived from sources outside the 4th Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.  One who owns or lawfully possesses a car, like one who owns or lawfully possesses a house, almost always has a reasonable expectation of privacy in it.  On the other hand, legitimate presence on the premises of the place searched, standing alone, is not enough to accord a reasonable expectation of privacy. Rakas v. Illinois, 439 U.S. 128, 142 (1978).

One of the main rights attaching to property is the right to exclude others, and if a person has the right to exclude others from the premises, then that person has an expectation of privacy in the premises.  For example, in Jones v. United States, 362 U.S. 257 (1960), the defendant had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it.  These cases can be digested into the following general syllogism:

  1. If an owner or lessee authorizes a person to use the premises, then the person has lawful possession of the premises.
  2.  If a person has lawful possession of the premises, then the person can exclude others from the premises.
  3. If a person can exclude others from the premises, then the person has a legitimate expectation of privacy in the premises.

The Court noted that there are situations in which the renter of car might allow a person not listed on the rental agreement to drive the car.  In the instant case, the renter of the car, Ms. Reed, allowed Byrd to drive the rental car, and he may have been in lawful possession of the car.  The Court gave no weight to the terms of the rental agreement defining who was the authorized driver, saying that the government had failed to explain what bearing the breach of the rental agreement had on expectations of privacy in the car.  The Court said that the risk allocation between the car rental company and the renter has little to do with whether one would have a reasonable expectation of privacy in a rental car if he or she otherwise had lawful possession of and control of the car.

The Court’s holding is narrow.  The Court held only 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.”

The question of whether Byrd was in lawful possession of the rental car was not decided.  The government argued that Byrd and Reed had fraudulently induced Budget to rent the car to Reed, knowing that she was not the intended driver.  Thus, according to the government, Byrd’s possession of the car was not lawful.  He was the same as a car thief and had no greater expectation of privacy than a car thief; and a car thief has no legitimate expectation of privacy in a stolen car.  The Court remanded the case for consideration of that issue.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.