Tuesday is another theme day at the Supreme Court, following Monday’s pair of original docket cases involving water disputes among states.

Today’s theme is the Fourth Amendment and some unusual fact patterns in two cases involving vehicles, both of which have elements that any driver might identify with. We’ll cover standard car rental agreements, unauthorized housing sublets, Rodin’s “The Thinker,” Jay Leno’s garage, and the socioeconomic differences between built-in garages and carports.

Byrd v. United States is up first, about a man named Terrence Byrd who drove Latasha Reed, a woman described in court papers as his fiancée (there seems to be some dispute about their status), to a Budget rental car facility in Wayne, N.J., to rent a car. Byrd, given his criminal record, perhaps had reason to believe he would not be able to rent the car by himself or be added as an authorized driver on Reed’s contract.

Once Reed got the rental Ford Fusion, she turned it over to Byrd, and he took off on a trip. In Pennsylvania, he was pulled over by the state police after an officer found him to be driving a rental car in a suspicious manner. This included driving with his hands in the “10-and-2” position and lane misuse while passing other vehicles. The police stopped Byrd, and long story short, after determining that he was not an authorized driver of the rental car, searched the vehicle on that basis.

In the trunk, the police found body armor and 49 bricks of heroin. Byrd ended up entering a conditional guilty plea to drug possession with intent to distribute, and other charges. In this appeal he challenges the theory that his absence from the rental agreement gave police the right to search the car without his consent.

Robert Loeb is up first to defend Byrd, and the justices pepper him with questions and hypotheticals about the rental company’s authority over the car.

After some back and forth about whether Budget could give the police permission to search the car (which Loeb concedes that the company may), Justice Samuel Alito has a different scenario in mind.

“What about this,” he says. “A homeowner is going away for a long weekend, arranges with a teenager in the neighborhood to come in and walk and feed the cat and spend quality time with the cat, but says under no circumstances may you bring anybody else into the house.”

“The teenager says okay, fine, and then goes ahead and gives the keys to a friend who uses the house to sell drugs, and the police come in and they conduct a search. Can that trespasser claim that his Fourth Amendment rights were violated?”

Loeb says the court has carved out an exception to a Fourth Amendment right for a criminal trespasser.

When Eric Feigin, an assistant to the U.S. solicitor general defending the search, takes to the lectern, he insists that because she violated Budget’s rental agreement, Reed had no authority to give Byrd permission to drive the car, and thus Byrd had no legitimate expectation of privacy in the trunk.

“Well, but this is probably not the only time it’s ever happened,” Chief Justice John Roberts says to laughter in the courtroom, referring to those who have allowed unauthorized drivers behind the wheel of their rental cars.

“I think the understanding is, well, you’re probably going to have trouble with insurance and all if so and so gets into an accident,” Roberts continues. “But at least the argument on the other side is that it wasn’t unlawful for [Byrd] to be driving.  … It may have been a breach of contract by Reed, I guess, but not necessarily anything wrongful on [Byrd’s] part.”

Justice Sonia Sotomayor goes back to the police’s initial reasons for stopping Byrd, saying she fears a victory for the government here will give the police broad authority to stop anyone in a rental car.

“The police here said we stopped him because he was driving a rental car,” Sotomayor said. “He was doing something totally illegal. Every driving school teaches you to put your hands at a 10 to 2 angle, and they found that suspicious.”

More laughter.

In the second case, Collins v. Virginia, the question is whether the Fourth Amendment’s “automobile exception” permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house, in what Fourth Amendment cases refer to as the curtilage.

The exception is to the general requirement for a warrant to search a house. The police need only probable cause to search a vehicle.

The vehicle in this case is an orange and black Suzuki motorcycle with a stretched-out rear wheel (a modification for drag racing) belonging to (or at least in the possession of) Ryan Austin Collins.

That motorcycle (and its driver) had eluded a police chase, but officers had evidence that led them to a home where they found it on the curtilage of the house under a white cover, or tarp. The justices and lawyers today repeatedly referred to the cover as a tarp, which will annoy the American Motorcyclist Association. The group filed an amicus brief in support of Collins that says it is wrong to refer to motorcycle covers as tarps and that such covers serve many lawful purposes. The brief also appears to be the only one in the case to quote Robert M. Pirsig’s 1974 classic, “Zen and the Art of Motorcycle Maintenance.”

Long story short again, Collins was convicted of receiving stolen property in Virginia’s state courts, which rejected his efforts to suppress the police’s approach of the motorcycle on the curtilage of the home and the moving of the tarp — I mean cover — to get the license plate and vehicle identification numbers.

The hypotheticals start early during the argument, with Justice Stephen Breyer raising one he calls “a weird hypothetical for illustration.” Why he thinks this one is any weirder than his others is a matter for debate. The backdrop question is when exigent circumstance exist for police to search a house without a warrant, such as when they see drugs in plain view that might be easily disposed of if they leave to get one.

Here’s the weird hypo.

“The mad art burglar has just stolen ‘The Thinker,’ Rodin’s ‘Thinker,’ from the local museum, Breyer says. “It weighs 2,000 pounds. And with his confederates, he’s put it in his new glass house. And the policeman stopping on the sidewalk looks in the window and sees: My God, there it is, the thing he’s just stolen. I thought the law is that that policeman cannot go into the house until he gets a warrant.”

Trevor Cox, the acting solicitor general of Virginia defending the search, agrees so far.

Breyer then discusses situations when the police would have exigent circumstances, such as if marijuana smoke was wafting from the house and they could see a person inside. This leads to a lengthy debate about whether exigent circumstances exist for a search of the motorcycle, even though all seem to agree that is not the legal question before the justices.

A discussion over whether vehicles in garages might be subject to warrantless searches leads to a concern from Justice Ruth Bader Ginsburg about a certain home-accessory divide in America.

“You’re making a distinction between people who can buy houses with garages and people who are less well-heeled and only have a porch or a patio for the car instead of a garage,” Ginsburg tells Cox. “So that distinction seems to me really troublesome, between garage and carport.”

The transcript doesn’t record it, but I’m sure I heard Alito ask something along the lines of “What about detached garages” before letting the argument move on amid several people talking at once.

Cox says, “I guess what I would say is that the Fourth Amendment protects the same quality of privacy, but maybe not the same quantity of privacy for everyone.”

Roberts questions Cox about how significant the mobility of vehicles is to his argument in favor of the automobile exception.

“I mean, if you have an automobile in the house, which is not, you know, Jay Leno’s house, right, where he’s got dozens of rare cars, or the Porsche in ‘Ferris Bueller,’ he says. “Are you saying that you … can just go in because they got it in there somehow and they can get it out?”

(I’m sorry to report to the chief that it was a 1961 Ferrari 250 GT California owned by Cameron’s father in the 1986 classic “Ferris Bueller’s Day Off.” And internet accounts say the filmmakers used three replicas, so no genuine 1961 Ferrari backed out through the glass window of Cameron’s Modernist house near the end of the film.)

Cox tells the chief that yes, he would draw the line at the house in that circumstance and not the curtilage.

Speaking in his rebuttal time, Matthew Fitzgerald, the lawyer for Collins, says the automobile exception was “created based on exigent circumstances in 1925,” but now “is literally knocking at the door of the house.”

“We submit that the clear, bright-line rule for officers,” Fitzgerald concludes, “which is that when they go to a known address to look for contraband, even readily-mobile contraband, they bring a warrant with them, should apply when they are going to a known address to look for a vehicle as well.”

And with that, two exhilarating hours at the Supreme Court’s Fourth Amendment vehicle day are over.

Posted in Collins v. Virginia, Byrd v. U.S., Featured, Merits Cases

Recommended Citation: Mark Walsh, A “view” from the courtroom: Vehicle problems at the Supreme Court, SCOTUSblog (Jan. 9, 2018, 5:38 PM), http://www.scotusblog.com/2018/01/view-courtroom-vehicle-problems-supreme-court/