Byrd v. U.S.: A Driver of a Rental Car Not Listed as a Driver on the Rental Agreement Has Standing to Object to a Search of the Car
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
Does a person who is driving a rental car but is not listed as a driver on the rental agreement for the car have a reasonable expectation of privacy in the vehicle? On May 14, 2018, the Supreme Court decided Byrd v. United States, unanimously holding that the driver does have a reasonable expectation of privacy in the car and may therefore raise the issue of whether a search of the rental car he was driving was conducted properly under the Fourth Amendment to the Constitution.
Facts of the Case
In September of 2014, Terrence Byrd and Latasha Reed drove together to a car rental agency, where Reed rented a car while Byrd remained in his personal vehicle. Reed did not list Byrd on the rental agreement as a possible driver, even though the rental agreement made it clear that only Reed’s spouse, a business associate of Reed, or a person present at the time of rental who filled out an Additional Driver Form were permitted to drive the car. (Byrd did not fall into any of these categories). In spite of this provision, Reed permitted Byrd to drive the rental car.
While driving the car, Byrd, the only occupant of the vehicle at the time, was stopped by a state trooper in Pennsylvania for a traffic infraction. The trooper was suspicious of Byrd and asked for permission to search the car. By this time, the trooper was aware that Byrd was driving a rental car and was not listed on the rental agreement as an authorized driver. For these reasons, the trooper concluded that Byrd did not have a reasonable expectation of privacy in the rental car. When the trooper failed to obtain consent to search the vehicle from Byrd, he searched it anyway and found 49 bricks of heroin in a laundry bag in the trunk. Byrd moved to suppress the heroin, but his motion was denied on the grounds that he lacked standing to object to the search of the car.
The Court’s Ruling
The Supreme Court ruled in Rakas v. Illinois that the only persons who may object to the manner in which a search was conducted under the Fourth Amendment (and therefore seek suppression of the fruits of that search) are those persons whose own Fourth Amendment rights were violated by the search.[1] This concept of who may raise a constitutional issue is called standing. The Court indicated in Rakas that a person’s Fourth Amendment rights are violated only if the police intruded upon that person’s reasonable expectation of privacy – and not someone else’s expectation of privacy – by conducting the search.
In Byrd v. United States, the Supreme Court addressed the issue of whether the driver of a rental car who is not listed on the rental agreement as an authorized driver of the car has a reasonable expectation of privacy in the car. The government argued that the failure to list a person as an authorized driver of the rental car is a violation of the rental agreement which deprives the unauthorized driver of any expectation of privacy in the car. The defense argued that the sole occupant of a car has a reasonable expectation of privacy in the car based solely on the person’s possession of the car. While the Court thought that the defense argument had “more to recommend it” than the government’s argument, it was unwilling to go quite as far in providing standing as the defense argument would have extended.
In Rakas, the Court refused to extend standing to a passenger in a car, merely because the person was in the car. However, the Court distinguished Rakas on the basis that Byrd’s status was much different. Byrd was both the driver of the car and its only occupant. This was important because the Court recognizes that one basis for establishing a reasonable expectation of privacy is a person’s right to exclude others from the place searched.[2] The Court concluded that Byrd had the right to exclude others from the rental car, apparently because of his status as the sole occupant of the car and therefore the person with exclusive control of the vehicle.
The Court also rejected the government’s argument that the fact that Byrd was driving the car in violation of the rental agreement defeats his contention that he had a reasonable expectation of privacy in the rental car. The Court pointed out that the rental agreement itself does not say that allowing an unauthorized person to drive the vehicle voids the agreement. In any event, the Court did not appear to view this point as critical. It noted that “there may be countless innocuous reasons why an unauthorized driver might get behind the wheel of a rental car and drive it.” It cited the example of the renter becoming drowsy and deciding that it is safer for an alert, unauthorized person to drive the car. While this might constitute a breach of the contract, the Court failed to see how this fact, by itself, affected the reasonable expectation of privacy issue.
However, the Court emphasized that Byrd does not have standing simply because he had the right to exclude others from the car. He also has to demonstrate that he had lawful possession of the car as well. For example, someone who has stolen a car does not have standing to object to a police search of the car just because the thief has exclusive control of the vehicle.
The Court felt that the basis for resolving the lawful possession issue was not developed adequately in this case. The Court recognized that Reed probably rented the car for Byrd because Byrd had a criminal record that would have prevented him from renting the vehicle directly. The Court also indicated that “it may be that there is no reason that the 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.”[3] However, the government did not raise the lack of lawful possession issue in the lower courts. Therefore, the facts relevant to this issue were not developed fully, nor was the issue properly considered by those courts. As a result, the Supreme Court’s decision sent the case back to the lower courts for resolution of the lawful possession issue.
Implications
Byrd won Round One in this case, but he has not won the fight yet. The Court’s decision is somewhat limited. It establishes only that the mere fact that the driver of a rental car is not an unauthorized driver under the rental agreement does not mean that the unauthorized driver lacks standing to object to a police search of the vehicle. However, Byrd also must establish that he was in lawful possession of the vehicle, and, as we have seen, the lower courts might find that the use of subterfuge by Byrd to obtain possession of the rental car may mean that he was not in lawful possession of it when it was searched. Of course, that determination could also be appealed. However, whether the Supreme Court would grant review of that determination is anything but a foregone conclusion. Similarly, it is not clear how the Court would rule on that issue if it did grant review of it.
It is also possible that the government’s position on the issue of lawful possession might be strengthened if rental companies altered their rental agreements to make it clear that the rental agreement would be voided if the renter allowed an unauthorized person to drive the vehicle. It is unclear as to whether the Court would view an unauthorized driver’s privacy expectations differently if use of an unauthorized driver would specifically void the rental contract. At a minimum, however, such a provision would provide the government an argument that it lacked in Byrd.
Another uncertainty underlying the Court’s reasoning in Byrd is whether the Court intends to look primarily to property law concepts in assessing a defendant’s reasonable expectation of privacy. In the Byrd opinion, there is obviously much discussion of property-related issues. However, in other cases,[4] the Court has looked to social norms in evaluating, for example, whether visitors at a residence have standing to object to a search of the residence that occurs while they are visiting. Social norms do not seem to have played much of a role in the reasoning utilized in the Byrd decision, but it can be argued that they are more important than property concepts in determining reasonable expectations of privacy.
Byrd leaves some important questions to be resolved, but it clearly establishes that a person driving a rental car does not forfeit the right to object to a police search of the rental car simply because the person is not an authorized driver under the rental agreement. In Byrd, the state trooper who stopped Byrd was joined at the scene by another trooper. When the trooper who made the stop commented that Byrd was not listed as an authorized driver on the rental agreement, the second trooper commented, “yeah, he has no expectation of privacy.” If nothing else, Byrd makes it clear that police officers may not jump to this conclusion.
[1] Rakas v. Illinois, 439 U.S. 128 (1978).
[2] See, for example, Jones v. United States, 362 U.S. 257 (1960) and Mancusi v. DeForte, 394 U.S. 165 (1969). Rakas was decided after Jones and Mancusi, and it significantly changed the approach to determining who has standing. However, the Court cited Jones and Mancusi in Rakas with approval, suggesting that the Court still considers those cases as having precedential value.
[3] It will be interesting to see if the lower courts view this statement as a suggestion from the Court that the use of subterfuge to obtain possession of a rental car defeats a claim of lawful possession of the car.
[4] See, for example, Minnesota v. Carter, 525 U.S. 83 (1998) and Minnesota v. Olson, 495 U.S. 91 (1990).