Courtesy of James R. Touchstone, Esq.
On May 14, 2018, in the case of Byrd v. United States, 2018 U.S. LEXIS 2803 (U.S. May 14, 2018), the Supreme Court of the United States held that a driver of a rental car has a reasonable expectation of privacy in the vehicle, even if the driver is not listed on the rental agreement as an authorized driver, so long as the driver is otherwise in lawful possession and control of the rental car.
In September 2014, Latasha Reed rented a car from a car rental facility. The rental agreement she signed and initialed stated that “the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee … or a person who appears at the time of the rental and signs an Additional Driver Form…” The rental paperwork also stated, “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.”
Though Reed did not list an additional driver, when she left the facility she gave the rental car keys to Terrence Byrd. Later that day, Byrd headed for Pennsylvania without anyone else in the rental car. Hours later, a Pennsylvania State Trooper pulled Byrd over for a traffic infraction, and was then joined by another trooper. The troopers discovered that Byrd had prior drug and weapons convictions, the car was a rental and that Byrd was not an authorized driver of the car according to the rental agreement. Byrd mentioned he had a marijuana cigarette in the car. The troopers told Byrd they did not need his consent to search the car because he was not on the rental contract. The troopers searched the vehicle and found body armor and 49 bricks of heroin during the search.
Byrd was charged with various federal crimes. Byrd moved to suppress the evidence as the fruit of an unlawful search. The District Court denied the motion. The Third Circuit Court of Appeals affirmed. Both courts found that Byrd lacked a reasonable expectation of privacy in the car because he was not listed on the rental agreement. Neither Court engaged in making a determination concerning probable cause for the search, apparently deeming it unnecessary under the circumstances. The United States Supreme Court granted review to address the question of whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement.
The Court initially explained that the right to be free from unreasonable searches and seizures was enshrined in the Fourth Amendment, adding that “the 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, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).” The Court stated that the question before it was “whether the person claiming a constitutional violation ‘has had his own Fourth Amendment rights infringed by the search and seizure which he seeks to challenge.’ Rakas v. Illinois, 439 U. S. 128, 133, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). Answering that question require[d] examination of whether the person claiming the constitutional violation had a ‘legitimate expectation of privacy in the premises’ searched. Id., at 143, 99 S. Ct. 421, 58 L. Ed. 2d 387.”
The Court noted that property concepts were instructive in determining the presence or absence of the privacy interests protected by [the Fourth] Amendment. The Court observed that a significant right attaching to property was the right to exclude others, and that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.”
The Government contended that any drivers who were not listed on the rental agreement lacked an expectation of privacy. The Court, however, rejected this view on Fourth Amendment protections, stating that this viewpoint was too restrictive. The Court also disagreed with Byrd’s argument that a sole occupant of a rental car always had an expectation of privacy. The Court noted that this argument could apply to car thieves who had possession and control of a vehicle, and others who should not have such an expectation of privacy.
The Court viewed Byrd’s situation similar to that presented in Jones v. United States, in which the Court found that the defendant had a reasonable expectation of privacy in his friend’s apartment because the defendant “had complete dominion and control over the apartment and could exclude others from it” while the friend was absent. The Court concluded that there was no reason why the expectation of privacy that arose from lawful possession and control, and the associated right to exclude, would differ depending on whether the car was rented or owned by someone other than the person currently possessing it. In both contexts, the Court determined, a person would have the same expectation of privacy that came with the right to exclude others.
The Government also argued that a privacy expectation did not validly attach to Byrd because the rental agreement was “void” due to Byrd’s unauthorized use of the rental car. However, the Court determined that the agreement said only that insurance coverage would be voided, not the total agreement. Further, the Court highlighted “innocuous reasons” why an unauthorized driver might drive a rental car, such as when the authorized driver was drowsy or inebriated. The Court stated that agreement “breaches” of that sort would not be expected to diminish the unauthorized driver’s expectation of privacy under those conditions.
The Court determined that a crucial factor in assessing the expectation of privacy was the concept of lawful possession. Rakas clarified that “wrongful” presence at the scene of a search would not permit a defendant to validly object to the legality of the search. A car thief, whether in sole possession of the car or with passengers, for example, would not have a reasonable expectation of privacy in a stolen car. The Government contended that Byrd, on the facts here, should have no greater expectation of privacy than a car thief because his use of the car was part of his plan to commit a crime and he used Reed as a straw renter because he himself could not rent the car due to his prior criminal convictions. Because this argument was not raised in the lower courts, and a sufficient factual record was lacking, the Court remanded the case for development of the record on this issue.
The Government also argued that probable cause justified the search, even if Byrd had a reasonable expectation of privacy that was violated. The Supreme Court also left this question for remand because it was not reached by the lower courts because they had already concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. The Court noted that the Third Circuit had discretion as to the order in which the remanded questions were best addressed.
HOW THIS AFFECTS YOUR AGENCY
Byrd v. United States holds that the mere fact that a driver in lawful possession and control of a rental car is not listed on a rental agreement does not defeat his or her otherwise reasonable expectation of privacy in the vehicle. While the Supreme Court has recognized in a number of prior opinions that there is a diminished expectation of privacy in an automobile, which often permits a search absent obtaining a warrant, law enforcement officers must be cognizant of the various exceptions to the warrant requirement in order to ensure that the facts they encounter are sufficient to establish at least one such exception prior to conducting a vehicle search. Several exceptions to the warrant requirement for the search of an automobile have been addressed in prior Client Alerts, which are available on the Jones & Mayer website.
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 362 U.S. 257 (1960).