Byrd v. United States

By David L. Hudson, Jr.

Published December 2017

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Does an Unauthorized Rental Car Driver Have a Reasonable Expectation of Privacy in the Vehicle?

 

CASE AT A GLANCE

Drivers of automobiles generally have a reasonable expectation of privacy in the cars they own and operate. Renting an automobile does not deprive one of that expectation of privacy. However, the question in this case is whether a driver of a rental car who is not an authorized driver pursuant to the rental contract has such an expectation of privacy.


ISSUE

Does a rental car driver who is not authorized by the rental agreement to operate the vehicle have a reasonable expectation of privacy in the vehicle?


FACTS

Terrence Byrd (petitioner) was driving a rental car down a four-lane highway near Harrisburg, Pennsylvania. A police officer noticed the rental car and followed Byrd. The officer then pulled Byrd over, contending later that Byrd stayed in the left lane too long.

During the traffic stop, Byrd handed the officer an interim driver’s license. The officer ran the numbers, and Byrd’s name came up as a “James Carter.” This was not his real name, but an alias.

Byrd also produced the rental car agreement, which did not list him as an authorized driver. The officers discovered that Byrd had a criminal record and a warrant in New Jersey. The officers asked Byrd about the alias and the warrant. They also asked Byrd whether he had anything illegal in the car and to exit the vehicle.

Byrd replied that he might have a “blunt” in the car. The officers asked him for permission to search the vehicle, although they also told him that he could not deny a search because he was not an authorized driver under the rental agreement. Byrd’s fiancée was the authorized driver of the rental car.

The officers claimed that Byrd gave consent. The officers searched the car and trunk. In the trunk, they found heroin and body armor. The officers arrested Byrd and charged him with possessing heroin with intent to distribute and with unlawful possession of body armor.

Byrd filed a conditional plea of guilty, reserving the right to contest the legality of the search as a violation of his Fourth Amendment rights. The federal district court determined that Byrd did not have an expectation of privacy in the vehicle because he was not an authorized driver.

The district court also determined that the officer had a valid reason to stop the vehicle initially because of the traffic violation and that the officers developed reasonable suspicion of other criminal activity during the traffic stop.

Byrd appealed to the U.S. Court of Appeals for the Third Circuit, which affirmed the district court. The Third Circuit determined that the officer had a valid reason for the initial traffic stop and later developed reasonable suspicion to conduct a thorough vehicle search.

On the consent issue, the Third Circuit reasoned that Byrd could not challenge whether the consent was truly voluntary, because he was not an authorized driver and therefore he lacked any expectation of privacy in the vehicle. The Third Circuit acknowledged there was a circuit split on this issue.

Byrd sought further review, and the Court granted certiorari.


CASE ANALYSIS

The Fourth Amendment prohibits government officials from engaging in unreasonable searches and seizures. Thus, not all searches and seizures are unreasonable, or as stated frequently by the Court, reasonableness is the touchstone of Fourth Amendment analysis.

Three important Fourth Amendment concepts converge in this case: (1) the automobile exception; (2) standing; and (3) reasonable expectation of privacy.

The first principle is the automobile exception developed by the U.S. Supreme Court in Carroll v. United States, 267 U.S. 132 (1925). Under this principle, because automobiles are inherently mobile, the police can engage in warrantless searches of them as long as they have probable cause to believe there is contraband in the vehicle.

The second principle is standing, a concept important to all constitutional law, not just Fourth Amendment cases. Constitutional rights can only be asserted by those who have standing, or legal grounds, to contest the violation of those rights. In this context, the question is whether an unauthorized driver of a rental car has standing to contest the search. Under Rakas v. Illinois, 439 U.S. 128 (1978), people have standing to contest a search under the Fourth Amendment if they have a legitimate expectation of privacy.

The related third principle is the reasonable expectation of privacy test. One way in which a search is deemed unreasonable is if the government has invaded a person’s “reasonable expectation of privacy” in a place where the individual had a legitimate expectation of privacy. In Katz v. United States, 389 U.S. 347 (1967), Justice Potter Stewart famously wrote that “the Fourth Amendment protects people, not places.” In a concurring opinion, Justice John Marshall Harlan II developed the reasonable expectation of privacy inquiry, determining that bookmaker Charlie Katz had such an expectation of privacy in a closed public pay phone booth.

Under the reasonable expectation of privacy formulation, a defendant must have a subjective expectation of privacy that society regards as objectively reasonable or legitimate.

This case involves the warrantless search of an automobile, but not one that the petitioner owned or one that he was authorized to drive under the rental agreement. Byrd’s fiancée was the only authorized driver of the rental car.

Thus, the question is whether Byrd even has standing to contest the search. Or stated another way, did Byrd have a reasonable expectation of privacy when he was not supposed to be driving the rental car pursuant to the rental car contract?

The lower courts disagree over this question. There are three approaches, sometimes referred to as (1) the bright-line approach, (2) the modified bright-line approach, and (3) the totality of the circumstances approach.

Several federal appeals courts have adopted a version of the bright-line rule advocated by the Third Circuit below—that rental car drivers who are not authorized under the rental car contract do not have standing to challenge the legality of the search. Other circuits have adopted a different rule—sometimes called the modified bright-line rule—that the driver of a rental car can have a reasonable expectation of privacy if the authorized driver of the vehicle gives the driver permission to use the rental car. Still one other circuit has adopted a totality of the circumstances approach to determine whether the driver had a reasonable expectation of privacy. (See Cooper v. Florida, 162 So.3d 15 [Fla. Ct. App. 2014], describing three different approaches by the federal appeals courts regarding whether unauthorized drivers of rental cars have a reasonable expectation of privacy.)

Byrd asserts that he had a reasonable expectation of privacy in the rental car, because his fiancée, who was the authorized driver, explicitly gave him permission to drive the vehicle. “As the sole occupant of the rental car with the renter’s permission, [petitioner] plainly had the requisite possession and control to reasonably expect privacy,” Byrd’s petition argues.

The government counters that Byrd did not have a legitimate expectation of privacy in the rental car because he was not an authorized driver under the rental car agreement. Furthermore, his fiancée did not have the authority to allow Byrd to operate the vehicle. “As such, despite any subjective expectations on his part, petitioner had no expectation of privacy in the car that society is prepared to recognize as reasonable,” the government writes in the opposition to Byrd’s petition for writ of certiorari.

The government also argues that the holding of the Third Circuit—no reasonable expectation of privacy for those not authorized to drive rental cars—is a clear, bright-line rule that provides notice and expectations on the part of both drivers and the police.

The Supreme Court’s Fourth Amendment jurisprudence establishes that a person does not have to own property to have a reasonable expectation of privacy. In Jones v. United States, 362 U.S. 257 (1960), the Court ruled that an overnight guest in a friend’s apartment had standing to challenge the legality of a warrantless search. In Minnesota v. Olson, 495 U.S. 91 (1990), the court ruled that an overnight house guest had a reasonable expectation of privacy even though he was not the owner of the home.

Byrd draws an analogy to these cases, emphasizing that Jones and Olson, like Byrd, did not own the searched property but they still had a legitimate expectation of privacy. The government responds by minimizing the germaneness of those cases, pointing out those cases involved searches of homes, not automobiles. Automobiles receive less Fourth Amendment protection than homes.

While those precedents are important, perhaps an even more important issue in the case is whether Fourth Amendment rights effectively can be determined by contract law. Restore the Fourth, in its amicus brief, writes that “only breaches of public laws—and not breaches of contract—should serve to impair a person’s Fourth Amendment rights.”


SIGNIFICANCE

The Court’s decision will be significant because it should clarify a three-way split in the federal circuit courts of appeal. Furthermore, countless people rent cars and many allow persons not authorized as a driver to operate such vehicles. Thus, the decision will affect many drivers.

According to petitioner, the case is significant because it affords a chance for the Court to close a large Fourth Amendment loophole: “Tying a reasonable expectation of privacy to compliance with an authorized-driver provision would encourage the police to pull over every rental car they see, ask for the rental agreement, and if the driver is unlisted, freely engage in a full search of the car with zero suspicion of a crime,” petitioner writes.

Several amici, all filed in support of the petitioner, point to unfortunate side effects or a parade of horribles should the Court affirm the Third Circuit. For example, the American Civil Liberties Union and Restore the Fourth, in their respective amicus briefs, warn that the Third Circuit’s ruling, which based Fourth Amendment rights on a rental contract, will fall disproportionately on minority and low-income drivers, who rely on rental cars and car-sharing modes of transportation regularly.

The National Motorists Association, in its amicus brief, warns of another negative consequence if the Court upholds the Third Circuit’s decision. According to the group, it will invite “abusive asset-forfeiture practices.”

Meanwhile, the Electronic Privacy Information Center (EPIC), in its amicus brief, writes that the case is significant because searches of modern-day cars can reveal a bevy of personal data.

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