Justices Puzzle Over Rules for Vehicle Searches

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By Jordan S. Rubin

The U.S. Supreme Court Jan. 9 wrestled with two search and seizure cases where the rulings could affect millions of drivers and homeowners across the country.

The justices struggled to draw clear lines in the cases—involving warrantless searches of rental cars and the immediate area surrounding homes, called the curtilage—and gave no clear indication which way they might rule.

The first argument, Byrd v. United States, centered around whether the driver of a rental car had a reasonable expectation of privacy in the car when he had the renter’s permission to drive it but wasn’t listed on the rental agreement.

The second, Collins v. Virginia, involved the Fourth Amendment’s “automobile exception,” which allows law enforcement to search—without warrants—vehicles believed to contain contraband. The issue here is whether the exception allowed police—uninvited and without a warrant—to enter the curtilage and lift up a tarp partially covering a motorcycle to view its vehicle identification number.

Arguments in Collins revolved around how the automobile exception applies in cases where the vehicles searched are located on curtilage, and whether the exception swallows curtilage protections whole.

As might be expected, in both cases Justice Sonia Sotomayor expressed concern about giving too much power to police, while Justice Neil M. Gorsuch advanced his view that the cases should be settled according to founding constitutional principles and property rights theories.

Rulings in both cases are expected by late June.

Rental Rights

Terrence Byrd was stopped in Pennsylvania driving alone in a car rented by a woman referred to in court filings alternately as his fiance and girlfriend.

There was heroin and body armor in the trunk, the latter of which Byrd specifically wasn’t allowed to possess because he was a felon. That’s also a reason he couldn’t rent the car, and the government argued that Byrd had the woman rent the car to enable him to circumvent this rule.

Byrd challenged the search, but the court below held that he had no reasonable expectation of privacy in the car because he wasn’t authorized to drive it.

Over 115 million people rent cars annually, Byrd noted in his Nov. 13 brief to the court, highlighting the scope of the high court’s ruling in his case.

Contract Trumps Constitution?

The justices struggled during arguments with whether and how the terms of a rental contract affect the historic protections against unreasonable searches and seizures in the Fourth Amendment.

Chief Justice John G. Roberts Jr., for example, wondered what would happen if car rental agreements said drivers must consent to police searches.

Byrd’s attorney, Robert M. Loeb of Orrick, Herrington & Sutcliffe LLP, Washington, argued that such a contract wouldn’t settle the dispute here.

But Roberts didn’t seem satisfied with the answer, engaging with Loeb in a prolonged back-and-forth on the issue.

Justice Anthony M. Kennedy asked if the car company itself could consent to the search, following up on Roberts’s line of inquiry.

Justice Ruth Bader Ginsburg questioned how the principles at issue here might apply to homeowners and sub-leases.

Gorsuch, too, joined his colleagues in asking the lawyers arguing the case to help draw a clear rule to apply in future cases.

As he has in the past—notably in this past November’s argument in the blockbuster cell phone location data case Carpenter v. United States—Gorsuch advanced a property rights-based theory that he believes is truer to what the framers of the Constitution would have wanted.

“You’ve raised two theories on which you might prevail,” Gorsuch said to Loeb.

“One, a property law theory, essentially, as I understand it, that possession is good title against everybody except for people with superior title,” he said.

“And I understand that. That’s an ancient common law rule. I can go back and find that in treatises all the way back to Joseph Story,” he said.

And as he has in the past, Justice Samuel A. Alito Jr. pushed back against his fellow Republican-appointee Gorsuch’s property rights approach.

“I mean, the problem with going down this property route is that we go off in search of a type of case that almost never arose, if it ever did arise at common law,” Alito complained.

“When would that ever have happened in 18th-century America? Never,” he said.

Why are we Here?

Sotomayor seemed to think the whole venture was misguided, asking “why are we here?”

The fact that Byrd claimed a property interest in the contraband meant he should be able to challenge the search, she said.

“We agree 100 percent on that, Your Honor,” Loeb said, seizing on the point.

Ginsburg chimed in to steal the show: “You’re here because you lost below,” she said, to laughter in the courtroom.

Police Free-for-All?

Sotomayor also expressed concerns about the implications of a ruling that would allow law enforcement to conduct searches of any rental car without probable cause, if the person driving the car isn’t on the agreement.

There’s really no evidence of such dragnet police conduct, Assistant U.S. Solicitor General Eric J. Feigin said in an attempt to assuage Sotomayor’s concern.

But she wasn’t so sure.

The police officer claimed he pulled Byrd over in part because he was suspicious that Byrd was driving with his hands at “10-and-2" on the steering wheel—that is, the way many people have been taught to drive.

So it’s “disingenuous” to argue that police don’t have ulterior motives for car stops, Sotomayor said.

The government wants to criminalize contract breaches, she went on to say.

Auto Exception Swallows Curtilage?

The second argument of the day, in Collins, also highlighted line-drawing problems—in this case when it comes to police searches of vehicles right outside of homes.

Collins involved not only the automobile exception, but also, perhaps more importantly, curtilage: the area immediately surrounding the home, which has been given home-like Fourth Amendment protection in past cases, most notably in Florida v. Jardines.

Jardines, a 2013 opinion written by former Justice Antonin Scalia, said it was a “search” for Fourth Amendment purposes when police walked a drug-detecting dog to a front porch, where it detected drugs inside the home.

The curtilage “enjoys protection as part of the home itself,” Scalia said for the court in Jardines.

Ryan Austin Collins, represented by Matthew A. Fitzgerald of McGuireWoods LLP, Richmond, Va., argues that police needed a warrant to enter the curtilage and walk up to a motorcycle they believed to be stolen to check the VIN.

But Alito was skeptical that curtilage protection meant a warrant was needed here. The motorcycle was inherently mobile, he said, citing a main rationale underlying the automobile exception.

Acting Virginia solicitor general Trevor S. Cox, Richmond, Va., picked up on this thread from Alito.

The curtilage isn’t always equal to the home in all situations, Cox argued.

Kennedy, too, seemed to think the automobile exception favored the government here.

But the home is “sacrosanct” under the Fourth Amendment, and that protection doesn’t stop at the front door; it extends to the curtilage, Justice Elena Kagan said, citing Jardines.

Roberts also hit on the curtilage/home distinction, noting the lines can be blurred in situations where people keep cars in their homes.

“I mean, if you have an automobile in the house, which is not, you know, Jay Leno’s house, right, where he’s got dozens of rare cars or the Porsche in Ferris Bueller,” he said, referring to the 1986 hit film Ferris Bueller’s Day Off, although it was a Ferrari in the movie.

“So you don’t recognize a distinction between the curtilage and the house for the purposes of the vehicles that are mobile?” Roberts asked Cox.

Adding another wrinkle to the dispute, Ginsburg wondered whether it mattered whose curtilage it was.

“Here we’re told that there was a close relationship between the defendant and the homeowner,” Ginsburg said, referring to the fact that the motorcycle was parked outside the home of Collins’s girlfriend, the mother of his child. He stayed there overnight sometimes.

“But suppose there weren’t that close relationship. Suppose it was a brand new girlfriend and he never stayed overnight, he was hopeful, but he hadn’t,” Ginsburg said, to laughter in the courtroom.

Sotomayor, Gorsuch Team up

Gorsuch echoed Sotomayor’s concerns about government overreach in Collins.

The government wants to expand the automobile exception “dramatically” here, Sotomayor said.

Gorsuch raised the concern that a ruling for the government might mean police could then search garages, carports, barns, and the like at will.

“Not many people live in their garage,” Gorsuch pointed out.

“Some people do, some people do, and in barns, but usually they’re reserved for cars and for animals,” he said.

“And you’re suggesting that in those places the police can search without a warrant,” he said to Cox.

The cases are Byrd v. United States , U.S., No. 16-1371, argued 1/9/18 and Collins v. Virginia , U.S., No. 16-1027, argued 1/9/18 .

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

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

For More Information

Byrd transcript available at http://src.bna.com/vvP.

Collins transcript available at http://src.bna.com/vvR.

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