Criminal Defense Attorney Weighs in On Probable Cause Search

Byrd V. U.S. - Privacy in Rental Autos: Did The Open Secret Of Sharing Your Rental Car Finally Get Its Foot Stuck In The Door?

Automobile searches are before the Supreme Court again. On the Court’s docket this year is Byrd v. U.S. The case involves the search of a rental car driven by Terrence Byrd, whose fiancée had given him permission to drive the car even though she hadn’t listed him as a potential driver on the contract.

In September 2014, Latasha Reed rented a vehicle at a facility in New Jersey, signing an agreement indicating that additional drivers were permitted only “with prior written consent.” After leaving the lot, she allowed Byrd to drive the vehicle from New Jersey to Pittsburgh. A Pennsylvania state trooper pulled him over for a minor traffic violation. Byrd gave the officer the rental contract, and the trooper determined that Byrd had a criminal record. After determining that Byrd was not listed on the agreement as a driver, the trooper and his partner searched the vehicle and discovered body armor and 49 bricks of heroin in the trunk. Byrd was indicted on federal charges of possession of heroin with intent to distribute, and illegal possession of body armor. Byrd argued that these items were not admissible because the troopers lacked probable cause to search the trunk.

The district court ruled that Byrd did not have a reasonable expectation of privacy in the vehicle because he was not listed as a driver in the rental agreement. Byrd pled guilty and was sentenced to 10 years. Byrd challenged the legality of the search, but the Third Circuit upheld the District Court’s ruling and affirmed the conviction.

Before the Supreme Court, Byrd argues that his expectation of privacy in the car hinged not on whether he owned the car or was listed as a permitted driver on the rental agreement, but on his “possession and control” over the vehicle (with the permission of Reed, his fiancée). Further, Byrd argues that the agreement has nothing to do with expectations of privacy. He argues that the “authorized driver” provisions of rental agreements simply allow companies to collect fees and shift liability. He asserts that “widespread noncompliance with the authorized- driver provisions is an open secret.”

The prosecution argues that if “possession and control” were the standard even a thief with “possession and control” would have Fourth Amendment rights. Previous Court cases demonstrate, for example, that passengers do not have a Fourth Amendment interest in a trunk; Byrd’s rights would necessarily stem from his being the driver, “the very thing that the rental agreement rendered illegal and unauthorized.” The government further argues that private contracts frequently influence court decisions.

Byrd also argues that a series of problems would flow from upholding the search. For example, he argues that the decision would mean even a permitted driver surrenders his expectation of privacy if he violates any term of the rental agreement. The government dismisses this argument as hypothetical because in fact Byrd was not an authorized driver and had no legitimate right to operate the car – and adds that, the rental company would not have allowed him to rent the car because of prior convictions, and that violations of other provisions of the rental agreement would not “have a direct bearing on who may operate the car.” Byrd states that police would have motivation to stop any rental car they saw if the decision is upheld, hoping that the driver wasn’t listed on the agreement and that they could freely search the car. The prosecution responds that Byrd cites no actual evidence of such a practice in jurisdictions where it is already the law that unauthorized drivers lack an expectation of privacy in a rental car.

Byrd’s third suggested problem is that police would incur burdens if required to determine the exact terms and conditions of a rental agreement and whether the driver was in compliance. Many people (for example, the spouse of the person renting the car) are allowed to drive the car “either as a matter of state law or under the policy of the rental-car agency” despite not being listed on the agreement. Byrd advocates establishing a bright-line rule that the driver of a rental car who has permission from either the owner or the person renting it has Fourth Amendment rights. The government responds that rental-car agreements are to remain in the car at all times and make it simple for police to determine whether someone has an expectation of privacy.

Finally, Byrd claims a “property interest” in the car because he used it with Reed’s permission, even if Reed herself didn’t have permission from the rental company to allow Byrd to drive. Byrd claims this gave him the right to prohibit others from entering the car, limited only by the rights of Reed and the rental company. The government argues that Byrd had no property right because Reed “could not legitimately allow him to take it.” Under the agreement, Reed lacked the power to permit Byrd to drive the car, and was in fact obligated to deny him that ability.

Supporters for both sides caution that ripple effects from this ruling could be extensive. The ACLU predicts a ruling for the government would have an impact on lower-income drivers, who often “depend on rental cars for everyday travel because they cannot afford to purchase their own vehicles,” and minorities, who are more likely both to rent autos and to be pulled over and searched. Another amicus party claims such a ruling could also make life difficult for residents of disaster-ravaged areas where damage to private vehicles requires residents to rent vehicles. By contrast, the State of Arizona has argued that drug couriers, human traffickers, and alien smugglers all frequently use rental cars, and implies that a ruling for Byrd could have terrible effects.

Automobile searches have been problematic, from a Fourth Amendment standpoint, for nearly 100 years. The coming decision is not easy to predict, given SCOTUS’ current makeup, with Trump appointee Neil Gorsuch being an unknown quantity and Justice Kennedy being notoriously hard to predict. We will keep you posted.

Charles V. Hardenbergh
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