By David Daggett
On May 14, the Supreme Court of the United States issued the opinion of Byrd v. U.S., 2018 U.S. LEXIS 2803, a case in which the central issue was whether someone in otherwise lawful possession and control of a rental car had a reasonable expectation of privacy in that vehicle, even if they were not listed as an authorized driver in the rental agreement. While the ultimate conclusion appears sound, the opinion does leave many questions unanswered.
On September 17, 2014, Latasha Reed rented a Ford Fusion from Budget Car Rental in Wayne, New Jersey. As Ms. Reed entered the facility and completed the paperwork, Terrence Byrd remained in her Honda Accord, listening to the Best of Michael Buble on the cd player. As is standard when renting a vehicle, Ms. Reed initialed the part of the agreement restricting who could actually drive the vehicle and notifying the renter that allowing someone other than an authorized person to drive said vehicle may result in the agreement becoming void and a possible denial of insurance coverage. Needless to say, Mr. Byrd was not listed as an additional driver.
Upon exiting Budget’s office, Latasha flipped Byrd the keys and off they went — Latasha in her Honda Accord and Byrd in the shiny new Ford Fusion. It was all downhill from there.
Byrd returned to his home in Patterson, New Jersey and loaded up a number of “personal belongings” in the trunk of the Fusion and hit the road for Pittsburgh, PA. He was alone. As Byrd was driving through the rolling hills of southeastern Pennsylvania, just outside of Harrisburg, a State Trooper (“L”) observed Byrd driving in a suspicious manner. By “suspicious”, I mean his hands were at the “10 and 2 position” on the steering wheel; he was sitting far back from the steering wheel; and he was driving a rental car. Could this have been a “Whren” stop? Based on those observations, the trooper followed Byrd and ultimately stopped him for a “possible traffic infraction.” Writer’s Note: Perhaps I am reading a bit too much into the language employed by SCOTUS, but was their use of the phrase “possible traffic infraction” the Court’s way of expressing their skepticism of the stop?
When Trooper L approached the passenger window of the Fusion to ask for identification, Byrd appeared “visibly nervous” and was “shaking and had a hard time obtaining his driver’s license.” Byrd handed over an interim license along with the rental agreement, telling the trooper that a friend had rented the car. At this point, Trooper M arrived to assist and Byrd reiterated to him that a friend had rented the vehicle. The troopers then determined that since Byrd wasn’t listed as a driver on the agreement that he didn’t have an expectation of privacy.
A computer search based on the identification provided by Byrd returned two different names (one of which was an alias); that Byrd had prior convictions for weapons and drug charges; and that Byrd had an outstanding warrant in New Jersey for a probation violation, though New Jersey, showing good judgment, did not authorize extradition.
Byrd ultimately told the troopers that he had a “blunt” in the car and offered to get it for them but they declined his offer and instead asked for consent to search the car. After determining that they didn’t really need his consent because he wasn’t listed in the rental agreement, they began a search of the passenger compartment and trunk. In the trunk they ultimately discovered body armor, at which point Byrd, realizing that the jig was up, beat feet. He was chased down and returned to the vehicle. He then admitted to having some heroin in the car. “Some heroin” turned out to be 49 bricks. It probably wasn’t for personal use.
Motion to Suppress
Byrd based his motion to suppress the evidence recovered in the search on a Fourth Amendment violation. Even though Trooper L testified that he believed he had probable cause to search the vehicle based upon Byrd’s statement regarding having marijuana in the car, the trial court didn’t address the Fourth Amendment and probable cause issues and denied the motion strictly on the basis of lack of standing.
The United States Court of Appeals for the 3rd Circuit affirmed in a short summary opinion, noting that while a circuit split existed as to whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that person is not named in the rental agreement, the 3rd Circuit had already determined that such a person had no expectation of privacy and therefore, was without standing to challenge the search. Not to be denied, Byrd then filed a petition for a writ of certiorari.
The Supreme Court granted cert to resolve the conflict between the various Courts of Appeals as to whether an unauthorized driver may indeed have a reasonable expectation of privacy in a rental car.
The Court explained that the issue of “standing” is separate and distinct from the question of whether or not a warrant is required. “Standing” requires a determination of whether the person claiming the Fourth Amendment violation had a legitimate expectation of privacy in the property searched. The Court noted that while “it is well established that a person need not always have a recognized common-law property interest in the place searched in order to claim a reasonable expectation of privacy…it is also clear that legitimate presence on the premises of the place searched, [by itself] is not enough to accord a reasonable expectation of privacy because it ‘creates too broad a gauge for measurement of Fourth Amendment rights.’ “ Slip Opinion at p. 10
The Court noted that while they had not previously delineated either a single factor or an extensive list of considerations to help determine when a person can be said to have a reasonable expectation of privacy, the right to exclude others is certainly one factor that carries a lot of weight. The Court determined that the property-based concept of the right to exclude others would determine the outcome of this case.
The Court determined that the State’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy – based upon the rental company’s lack of authorization – was too restrictive a view. Byrd, on the other hand, argued that the sole occupant of a rental car always has an expectation of privacy based on possession and control. The Court wasn’t going there either, as that would grant car thieves Fourth Amendment protection.
The Court further analyzed the State’s argument and said that they could see no reason — when a person has lawful possession and control and the attendant right to exclude others — to differentiate between a vehicle that was rented or privately owned by someone other than the person currently in possession of it. It was pointed out by the Court that an unauthorized driver in sole possession of the vehicle would have the right to exclude others from it and used a carjacker as an example.
Was Byrd in Lawful Possession?
Once the Court determined that a person not listed on the rental agreement could have standing to object to an unlawful search, they addressed the question of whether Byrd was in lawful possession of the vehicle. The State argued that Byrd should have no greater expectation than a car thief, since he intentionally used a third party as a strawman (strawperson?) in order to carry out his felonious plan. The State argued that Byrd knew he wouldn’t have been able to rent a car on his own due to his criminal record and that he used Reed to procure the car for him to transport heroin to the Steel City.
While the Court stated that that may all be well and true, since the State did not make that argument at either the trial court or Court of Appeals, and that it was unclear from the record whether that was an accurate account of what had actually occurred, the Court declined to address it. The Court remanded the case to the lower court to decide that question.
Probable Cause to Search
Finally, the State argued that even if Byrd did have a Fourth Amendment interest in the rental car, the troopers had probable cause — based upon Byrd’s statement regarding marijuana being in the car — to conduct a search of the vehicle based upon the automobile exception to the warrant requirement. The Supreme Court determined that since neither of the lower courts ruled on this issue they would punt and it was remanded as well.
The Supreme Court in Byrd held that the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not trump an otherwise reasonable expectation of privacy and had standing to object to the search.
The Court did remand two of the State’s arguments: that one who fraudulently uses a third party to rent a car in order to commit a crime is no better situated than a car thief and would not have standing; and that probable cause justified the search regardless of Byrd’s standing.
As mentioned earlier, the Byrd opinion was silent as to many pertinent facts and as a result, left a number of questions unanswered. Among them:
- Did the Pennsylvania State Troopers contact Ms. Reed and ascertain if she knew Mr. Byrd?
- If so, did she give him permission to be in control of the vehicle?
- Did they try and get in touch with Ms. Reed and were unsuccessful?
- If the troopers were unable to reach Ms. Reed, how were they to know that the vehicle wasn’t stolen?
- Did Byrd indicate that the “friend” that originally rented the vehicle was in fact, Ms. Reed? In other words, did he mention her by name so that the troopers could confirm that information from the rental agreement?
- Did the troopers contact Budget Car Rental to try and gather any additional information?
- Does obtaining a rental vehicle via fraudulent means in order commit a crime necessarily negate a person’s lawful possession and expectation of privacy?
- Did probable cause exist to search the vehicle regardless of standing?
In his concurring opinion, Justice Alito posed a number of questions that might affect a driver’s ability to raise a Fourth Amendment claim: the terms of the particular rental agreement; the circumstances surrounding the rental; the reason why the driver took the wheel; any property right that the driver might have; and the legality of his conduct under the law of the State where the conduct occurred.
Before Mr. Byrd gets too giddy with this ruling, this may be an example of winning the battle but losing the war when it comes to the issue of probable cause. The drugs and body armor may very well be admissible. Enjoy it while you can.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT MATTER.