Justices Hand Driver Win on Rental Car Searches (1)

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By Kimberly Strawbridge Robinson and Jordan S. Rubin

A driver not listed on the rental agreement may still have a reasonable expectation of privacy in the vehicle, the U.S. Supreme Court ruled May 14.

The justices unanimously rejected the argument that Terrence Byrd couldn’t challenge the search of a rental car he was driving simply because he wasn’t an authorized driver.

The court takes “an expansive reading of the Fourth Amendment, with the conclusion being that the Constitution trumps contractual terms,” Colin Miller, of the University of South Carolina College of Law, Columbia, S.C., told Bloomberg Law in an email. Miller filed an amicus brief in support of Byrd.

Orin Kerr, of the University of Southern California Gould School of Law, Los Angeles, who has written about the case on The Volokh Conspiracy, nevertheless described the court’s decision as “narrow.”

The court didn’t lay out the “precise test for when a person has sufficient rights in a rental car to have Fourth Amendment rights,” Kerr told Bloomberg Law in an email. It simply said that being an unauthorized driver, by itself, wasn’t enough to defeat a driver’s Fourth Amendment interest.

The court sent the case back to the U.S. Court of Appeals for the Third Circuit to examine the contours of the appropriate test.

That court previously rejected Byrd’s motion to suppress the 49 bricks of heroin and body armor found in the trunk, noting a split existed in the federal courts on whether drivers like Byrd have expectations of privacy in rental vehicles.

Your Stuff?

The court took what it called a “property-based” look at the Fourth Amendment.

In “the main, ‘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,’” Justice Anthony M. Kennedy wrote for the court.

There’s “no reason why the expectation of privacy that comes from lawful possession and control” would “differ depending on whether the car in question is rented” by “someone other than the person in current possession of it,” Kennedy said.

The court’s core reasoning seems to be that the ability to challenge a search of “property comes from it being treated as your stuff, and whether your name is on the rental car contract doesn’t seem that important to whether it’s treated as your stuff,” Kerr said on Twitter.

No Lines

The decision leaves open “the hard line-drawing question as applied to this case,” Kerr said.

The government argued that Byrd procured the rental car by a fraud. He used “a straw renter to allow him to take sole control of a rental car that he would not have been able to rent himself” because of his criminal background, the government said in its brief.

The government likened Byrd to a car thief, whom all parties seemed to agree would not have a reasonable expectation of privacy in the car.

But the court was unclear if “law should distinguish between one who obtains a vehicle through subterfuge of the type the Government alleges occurred here and one who steals the car outright.”

That question, at least in the first instance, is for the lower courts, the Supreme Court said.

On remand, the court will presumably look at whether Byrd knew that his criminal record precluded him from renting the car; had someone else rent the car as subterfuge; and whether that was a crime, Miller said.

The case is Byrd v. United States , 2018 BL 169553, U.S., No. 16-1371, 5/14/18 .

To contact the reporters on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com, Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bloomberglaw.com

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