In a recent decision, Byrd v. U.S., No. 16-1371 (May 14, 2018), the Supreme Court issued a unanimous opinion that a driver in lawful possession or control of a rental vehicle, despite not being named as a driver in the rental agreement, has a reasonable expectation of privacy in that vehicle.
Latasha Reed rented a car and handed the keys to Terrence Byrd immediately after she left the rental office. Reed did not list Byrd as another driver of the vehicle on the rental forms. While driving across Pennsylvania, alone, Byrd was pulled over by police. The officers present discovered Byrd was not an authorized driver and concluded they did not need his consent to search the vehicle. The officers searched the passenger compartment and the trunk, where Byrd had stored personal effects. Inside a laundry bag, an officer found body armor and 49 bricks of heroin.
During his criminal proceedings, Byrd motioned to suppress the evidence obtained through the search contending that the search of the vehicle violated his Fourth Amendment rights. The district court denied his motion, holding that Byrd did not have “standing” to contest the search as an initial matter. Byrd later entered a conditional guilty plea reserving the right to appeal his motion to suppress the evidence acquired in the search of the vehicle.
The question the Supreme Court addressed was whether Byrd had a legitimate expectation of privacy in the premises searched. The Court began its analysis by visiting old property rights concepts. One of the main rights associated with property is the right to exclude others. One who lawfully possesses or controls property will have a legitimate expectation of privacy by virtue of that right to exclude.
The government argued that only authorized drivers of rental vehicles have a legitimate expectation of privacy in the vehicle. The government based its case on an analogy to a passenger as passengers in vehicles cannot invoke the exclusionary rule, as Byrd was attempting to have evidence excluded, in vehicles in which they do not have a possessory interest. The government was basically arguing that since Byrd was not an authorized driver on the rental car paperwork, he was like a passenger because he had no ownership interest in the car.
The Court dismissed this argument as Byrd was not a passenger, he was the driver, and the only occupant of the vehicle. Instead, the Court reasoned Byrd was similar to a man lawfully inside an apartment where the man’s name was not on the lease or ownership documents. The man had complete dominion and control over the apartment and could exclude others from the property. Just as the man in the apartment could exclude others, Byrd could exclude others from the car. Therefore, Byrd had a reasonable expectation of privacy in the rental vehicle.
The Court did note that two unresolved issues could defeat Byrd’s overall appeal, but, in general, any legal driver of a rental vehicle is entitled a reasonable expectation of privacy therein. The government will try its hand at a different argument on remand – whether the fact that Byrd used a strawman to rent the car to aid him in the commission of a crime makes Byrd more akin to a car thief, who would have no legitimate possessory interest in the vehicle. The government also has unresolved probable cause arguments it will present on remand.
Going forward, the key lesson to take away from Mr. Byrd’s case is that the mere fact that the driver of a vehicle is not listed as an authorized user in the rental agreement is not enough to defeat the driver’s reasonable expectation of privacy under the Fourth Amendment. Officers must still either obtain a search warrant or perform a search in accordance with one of the allowed exceptions to the warrant requirement.