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SCOTUS holds driver not on rental car agreement may be able to challenge search

Byrd v. United States, USSC No. 16-1371, 2018 WL 2186175 (May 14, 2018), vacating United States v. Byrd, 679 Fed. Appx. 146 (3rd Cir. 2017); SCOTUSblog page (includes links to briefs and commentary)

Terrence Byrd was pulled over while driving a rental car with no passengers. Officers quickly realized the rental agreement for the car did not name him as the renter or an authorized driver. Though Byrd told the officers his friend had rented it, they decided he had “no expectation of privacy” and searched the car, finding body armor and heroin.

Both the district court and Third Circuit agreed with the officers: a driver not on the rental contract has no standing to complain about the search of a rental car. But all nine members of the Court conclude to the contrary: at least where a driver’s possession of the vehicle is not akin to having stolen the car (a murky caveat the Court does not today clarify), mere breach of the rental contract does not negate a reasonable expectation of privacy.

Justice Kennedy writes for the majority. He makes short work of the government’s argument that Byrd, in driving the car without the permission of its owner (the rental company) could not have had an expectation of privacy society is prepared to recognize. He notes that rental contracts typically include longs list of restrictions … includ[ing] prohibitions on driving the car on unpaved roads or driving while using a handheld cellphone. Few would contend that violating provisions like these has anything to do with a driver’s reasonable expectation of privacy in the rental car.” (Slip op. at 11). To the government’s contention that permitting an unauthorized driver is somehow different than violations of other provisions, rendering the contract “void,” Kennedy responds that the contract itself does not contain any such provision. (Id.). He goes on to say

there may be countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it—perhaps the renter is drowsy or inebriated and the two think it safer for the friend to drive them to their destination. True, this constitutes a breach of the rental agreement, and perhaps a serious one, but the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car. Stated in different terms, for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy, all of which concern risk allocation between private parties—violators might pay additional fees, lose insurance coverage, or assume liability for damage resulting from the breach. But that risk allocation has little to do with whether one would have a reasonable expectation of privacy in the rental car if, for example, he or she otherwise has lawful possession of and control over the car.

(Slip op. at 11-12).

There may, however, be times when a person’s possession of a rental car comes closer to thievery–and a car thief has no reasonable expectation of privacy in a stolen vehicle. (Slip op. at 12, citing Rakas v. Illinois, 439 U. S. 128, 141 n.9 (1978)). The government contends that this was so here: that Byrd used his fiancée, who rented the car, “as a strawman in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.” (Slip op. at 13). After saying he’s not certain whether these allegations constitute a criminal offense, or whether that should even matter, Kennedy concludes the case should be remanded to explore this question further (and also to address the government’s contention that the search was separately justified by probable cause). (Id.).

Justice Thomas, joined by Justice Gorsuch, concurs, expressing his misgivings over the entire doctrine of “reasonable expectation of privacy” and inviting future litigants to present argument on his preferred property rights theory of the Fourth Amendment.

Justice Alito also gives a one-paragraph concurrence, seemingly to emphasize that the government still has various means to vindicate the search on remand.

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