January 9, 2018--The US Supreme Court heard oral arguments in Byrd v United States, examining whether police can search without warrant a rental car possessed solely by an unlisted driver.

Byrd’s fiancé rented a car and then gave him permission to drive it without her. State troopers stopped Byrd for a “left lane” violation, e.g., not pulling to the right except for passing. Troopers detained Byrd for an hour and searched the entire vehicle, apparently without an exception to the warrant requirement. The search included the trunk where they seized heroin and a flak jacket.

A federal grand jury indicted Byrd with conspiracy to deliver heroin. He entered a conditional guilty plea allowing him to appeal an unfavorable suppression ruling on the search. He lost at the Third Circuit Court of Appeals which ruled he had no legitimate expectation of privacy, or, standing, to challenge the warrantless search of the car because he was not the renter. He petitioned the United States Supreme Court for writ of certiorari. The Court granted the petition and sought briefs. The National Association of Criminal Defense Lawyers and American Civil Liberties Union filed amicus, or, friend of the court, briefs.

Byrd argued in his brief that the rental car contract did not strip him of his Fourth Amendment rights. Byrd claimed both possession and control gave him a privacy right that required a warrant irrespective of the rental contract.

The Government in its brief pointed out that in “all caps” the rental car company contract stated, “’PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.’"

At oral argument, counsel for Byrd focused on Byrd’s permission to store items in the trunk.

Chief Justice Roberts asked a hypothetical about whether the rental car contract could explicitly waive constitutional rights for unlisted drivers:

CHIEF JUSTICE ROBERTS: What if the Budget rental agreement had, you know, in big letters on it, if anyone is stopped driving this car, they must consent to police search? You know, Budget doesn't want to be involved in promoting criminal activity.

Counsel for Byrd noted that Byrd hadn’t signed the contract. Chief Justice Roberts asked if that allows him to “escape from its provisions.” Byrd argued privacy does not derive from rental contracts.

Justice Alito asked whether it would have been alright if police had called the rental car company and obtained consent from the company to search the car. Justice Kennedy asked counsel to address that question as well. Byrd’s counsel finally acquiesced and said, “I think the owner can grant them consent to search the car.”

Justice Breyer introduced an entirely new hypothetical—Junior and his three friends are sitting in the living room and Dad says only Junior can drive the family car and explicitly excludes the other friends in their presence. Junior defies Dad gives the keys to a friend. Legitimate expectation of privacy? Counsel for Byrd answered in the affirmative. Breyer presses him. Does a thief also have a legitimate expectation in the car? Counsel for Byrd stated that the rule is, if you have permission to store your items in the trunk by the renter, there is a legitimate expectation of privacy. Counsel excluded thieves and trespassers.

Justice Sotomayor asked, “how are they police supposed to know that” from a rental agreement that excludes the driver.

Justice Alito introduced a fourth hypothetical: neighbor authorized to “walk and feed the cat,” to the exclusion of others, at vacationer’s house— itself inexplicable if you understand no one can walk a cat— but gives the keys to a friend to sells drugs instead. Does the “trespasser” have a legitimate expectation of privacy?

Counsel for Byrd again acquiesced stating that the “trespasser” may not be able to invoke the Fourth Amendment.

Justice Alito asked counsel for Byrd to distinguish that trespasser hypothetical from the case at bar. Counsel stated there was no trespass in the case at bar because Byrd had permission to be in the car.

Justice Sotomayor asked Defendant could just claim an interest in the laundry inside the car. Counsel for Byrd answered enthusiastically in the affirmative: “Exactly. Exactly. Exactly, Your Honor.” Counsel reiterated that at suppression Byrd testified he put the laundry in the car.

Justice Gorsuch, asking counsel for Byrd to clarify, suggested the two theories presented by petitioner included a property law theory in which possession is sufficient to exclude all others except someone with “superior title.” And then Justice Gorsuch described a kind of “relationship test” where the relationship between the fiancé or girlfriend might dictate a societal expectation. He distinguished between what he called “empirical” and “normative” tests.

“Gosh, it’s very complicated. Professors Baud and Stern, among many others, suggest maybe we ought to look back at that property test again. What do you think?

Justice Alito replied that the test contemplates a situation that almost never arose at common law, which he described as “unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer.” Justice Alito also stated that the word “property” doesn’t appear in the Fourth Amendment—just “effects” which he interpreted to mean “goods or movables.

Justice Breyer asked if the rule should be: “A person who has possession of and is driver -- driver of a car, whoever he is, has a reasonable expectation in privacy of the parts of that car, unless in driving or possessing it or -- he's committing a crime.”

Counsel for Byrd reminded the Court that the Troopers themselves recognized this distinction when they allowed Byrd to move the car to the next exit himself, noting that troopers would never have allowed a car thief to do that.

Justice Kagan noting, “we’ve always had a normative component to expectations of privacy . . . in other words expectations that society is prepared to recognize,” asked Byrd’s appellate lawyer, “why should we recognize this conduct as reasonable?”

Counsel for Byrd stated that courts do not look to whether the defendant is engaging in a purpose to frustrate law enforcement or otherwise commiting a crime to determine the expectation of privacy; they look to whether it is reasonable for anyone in any situation to have an expectation of privacy in their own belongings in the locked trunk of a car, as here, for example.”

The Court put the same questions to counsel for the Government. Counsel responded:

“I think the key distinction here is that he's claiming a personal Fourth Amendment right. As an unauthorized driver, he doesn't have any connection to the car at all. There is no connection between him and the car. He is not part of the rental agreement. He is an interloper in the rental agreement.”

Chief Justice Roberts challenged this assertion, calling the renter’s permission for Byrd to drive the car a “pretty big connection.”

Counsel stated the fiancé had no authority to grant that permission and Chief Justice Roberts asserted that it was “probably not the only time it’s ever happened” to laughter.

Justice Kagan, pressing counsel, agreed, stating some courts have found such violations “foreseeable.”

Justice Gorsuch returned to property rights, suggesting the Government was advancing a right to invade property no third party has enjoyed in the common law. In response to Justice Gorsuch, counsel for the Government conceded that Byrd could have excluded a carjacker merely by virtue of possession of the rental car.

Justice Sotomayor emphasized that never before has the court looked to private contract rights to determine whether, for example, a landlord could consent to a search of an apartment possessed by someone else. Counsel for the Government attempted to suggest that it depended on their right to tenancy—and Justice Sotomayor appeared to quickly correct him, stating that overnight guests have a legitimate expectation of privacy in apartments they do not lease. She added that the Government’s proposed rule that “criminaliz[es] a contract breach.”

Justice Ginsburg raised concerns that the automobile exception still requires probable cause—but that in the case at bar, the probable cause requirement has “vanished.”

A decision is expected later this year.

SOURCE OF MATERIAL: Brief of Petitioner, Brief of Respondent, Transcript of Oral Arguments by Heritage Reporting Corp., United States Supreme Court

NOTE: David A. Cmelik Law PLC has no affiliation with the Byrd case.

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