Byrd v. United States, (2018)
Terrence Byrd asked his former girlfriend, Latasha Reed, to rent a car for him. Reed signed a contract certifying she had a valid driver license and had not committed certain vehicle-related offenses within the previous three years. She also agreed to not allow any unauthorized persons to drive the car.
As soon as she walked out of the rental car office, she gave the car keys to Byrd. Byrd was not an authorized driver. He loaded up the trunk and drove down the road alone, without his ex-girlfriend.
A trooper stopped Byrd for driving in the left lane. Byrd was “visibly nervous” and “was shaking and had a hard time obtaining his driver’s license.” Byrd produced a temporary driver license and gave the rental contract to the trooper, explaining that a friend had rented the car. The trooper warned Byrd for the traffic violation. Believing he didn’t need Byrd’s consent to search the car (because Byrd was not listed on the rental contract), the trooper searched the car. He found body armor and 49 bricks of heroin in the trunk.
Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant for a probation violation. He was charged with possession of body armor by a convicted felon and possession of heroin. Byrd asked the trial court to suppress the heroin and body armor, arguing the search of the trunk violated his Fourth Amendment privacy rights. When the trial court ruled the evidence was admissible, Byrd pleaded guilty. The court of appeals upheld his conviction, holding that the driver of a rental car who is not listed on the rental agreement does not have a reasonable expectation of privacy in the car and cannot challenge a search.
The Supreme Court reversed and remanded the case back to the court of appeals with instructions to further consider Byrd’s arguments. The Court held that the lower court’s decision (that Byrd had no expectation of privacy because he was an unauthorized driver) “rests on too restrictive a view of the Fourth Amendment’s protections.” The Court also noted that lower appellate courts have applied conflicting views on whether an unauthorized driver can ever have an expectation of privacy in the rental car.
Despite how some media reports characterized this decision, the Supreme Court did not hold that an unauthorized driver always enjoys an expectation of privacy in a rental car. The Court sent the case back to the court of appeals to further consider whether Boyd could have an expectation of privacy if he knew that his prior history would effectively bar him from renting a car and was essentially committing a vehicle theft by way of a subterfuge. The prosecution argued that Byrd used “a straw renter to allow him to take sole control of a rental car that he would not have been able to rent himself” because of his criminal background.
The Court also did not decide whether the trooper had probable cause to search the car. On remand, the lower court will examine whether Byrd’s nervousness, driving pattern, admission that there was a marijuana cigarette in the car, prior history, and the rental contract issues were sufficient to create probable cause to search the car.
Fifty years ago, in Katz v. United States (389 U.S. 347 (1967)), the Supreme Court took a shift away from property rights analysis in search and seizure cases. The Court held that police warrantless wiretapping conversations inside a public telephone booth violated the Fourth Amendment privacy rights. Traditional property rights analysis leads to the conclusion that no one could have an expectation of privacy in a public phone booth. Using a privacy-based formulation of the Fourth Amendment, the Court famously stated that the Fourth Amendment “protects people, not places.”
In United States v. Jones (132 S. Ct. 945 (2012)), all nine Supreme Court Justices agreed that Jones was “searched” for Fourth Amendment purposes when officers placed a Global Positioning System (GPS) device under his car and tracked his movements for four weeks. But the justices couldn’t agree on what constituted the search. Was it placing the GPS unit on the car (trespass to property rights theory) or monitoring the device and Jones’s movements for nearly a month? The trespass theory examines whether officers trespassed by physical intrusion onto a constitutionally protected area. The majority opinion applied a property rights analysis and held that the attachment of the GPS device violated the Fourth Amendment. Justice Alito’s concurring opinion argued that the long-term GPS monitoring violated Jones’s reasonable expectation of privacy.
The majority opinion in Byrd is another step in the Court’s experiment with a return to a property right/trespass Fourth Amendment privacy analysis and a step away from a pure privacy interest analysis. Writing in the majority opinion in Byrd, Justice Kennedy cited to Rakas v. Illinois (439 U.S. 128 (1978)). In Rakas, Justice Kennedy wrote, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude” others from the property.
Justice Gorsuch cited the “ancient” legal rule that possession is nine-tenths of the law. During oral argument, he questioned whether possession of the car would allow Byrd to keep anyone except Reed and the rental company out of the car. Justice Gorsuch commented that a property rights analysis (it is mine, therefore I can keep you out of it) was a much easier path than resolving whether Byrd had a reasonable expectation of privacy in the trunk contents. The privacy expectation is “very complicated” because the Court must consider things like the terms of the rental agreement, the communication and relationship between Byrd and Reed, and whether the Court should consider social norms applicable to Byrd/Reed’s relationship.