Argument analysis: Rental cars, reasonable expectations of privacy and property rights

on Jan 9, 2018 at 9:35 pm

The Fourth Amendment and vehicle searches dominated oral arguments at the Supreme Court today. First up was Byrd v. United States, in which the justices are considering whether the driver of a rental car who was not included as an authorized driver on the rental agreement, but had the renterβs permission to use the car, has a reasonable expectation of privacy in the carβs trunk, so that police could not search it without a warrant. After an hour of spirited discussion, the answer remains unclear.
The question before the justices came to the court in the case of Terrence Byrd, who was pulled over while driving on an interstate highway in Pennsylvania. When state troopers searched the rental car, they found a flak jacket and 49 bricks of heroin. Byrd argued that the evidence found in the trunk could not be used against him because the state troopers lacked probable cause to search the trunk. The lower courts disagreed, reasoning that Byrd could not have had a reasonable expectation of privacy in the car because he was not listed as an authorized driver on the rental agreement. Byrd pleaded guilty and was sentenced to 10 years in prison.

Robert M. Loeb for petitioner (Art Lien)
Arguing for Byrd, attorney Robert Loeb told the justices that the provisions of the rental agreement do not determine the scope of Byrdβs constitutional rights. Instead, he contended, what matters is whether Byrd had a reasonable expectation of privacy when, with the permission of his fiancΓ©e (who had rented the car), he locked his things in the trunk of the rental car, even if he knew he didnβt have the rental companyβs permission to drive the car.
Justice Anthony Kennedy was skeptical, suggesting that Byrdβs conduct indicated that he was up to no good from the beginning. βThe case is presented,β Kennedy told Loeb, βas if … the car was just lent to him for a few minutes. What happened was he waited right outside the rental car place while she went in and signed the agreement. It was very clear that he didnβt want to be on the car rental and it was very clear that he was going to be the only one to drive it.β
Justice Stephen Breyer, as is so often the case, fretted about the need for the justices to articulate a clear rule that will be easy for police officers in the field to follow. βSee, Fourth Amendment law is too complicated in a sense already,β Breyer said. βSo you look for principles or rules that will allow policemen and others to understand what it is theyβre supposed to do.β
And Justice Sonia Sotomayor questioned Loebβs proposed rule: βHow will the police know,β she asked, whether you have the renterβs permission to put your things in the trunk? But later Sotomayor and Justice Neil Gorsuch would emerge as an unlikely pair of allies, focusing less on what kind of privacy Byrd might have expected and more on his ownership of the things in the trunk. βWhy are we here?β asked Sotomayor. βMeaning, once he admitted that … the goods in the trunk were his, I donβt know why that doesnβt give himβ the automatic right to challenge the search.
βExactly. Exactly. Exactly,β responded Loeb.
Gorsuch then chimed in to make a similar point. He began by observing that, under βancientβ legal rules, possession of the car would give Byrd property rights that would allow him to keep everyone else except Budget and Reed out of the car. By contrast, he stressed, trying to resolve the case on the basis of whether Byrd had a reasonable expectation of privacy in the things in the trunk was βvery complicated,β requiring the justices to consider things like the terms of the rental agreement, the relationship between Byrd and Reed, and whether they should look at social norms or data. Might it not be more straightforward, he suggested, to rely on property rights?
That prompted Breyer to focus again on precisely what rule Byrd is proposing. Is it, he asked Loeb, that someone who is driving and in possession of a car βhas a reasonable expectation of privacy of the parts of the car, unless in driving or possessing it … heβs committing a crimeβ?
Yes, Loeb responded.
But not everyone seemed to be on board. Justice Samuel Alito noted that βthe word βpropertyβ doesnβt appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnsonβs dictionary as βgoods or movables.ββ Would the word βeffectsβ extend to any property interest whatsoever, Alito asked, even if that interest is only a future one?
And Justice Elena Kagan seemed perturbed by the facts of the case β specifically, that Byrd had βviolated important contract terms, terms that are of some significance to the owner of the propertyβ and was βengaged in conduct that frustrates law enforcement in various ways.β βSo why is it,β she queried, βthat society should be prepared to recognize this conduct as reasonable?β
Arguing on behalf of the United States, Eric Feigin offered another bright-line rule β this time, one that would resolve the case in the governmentβs favor. If a driver of a rental car is not included on the rental agreement, he does not have enough of a connection to the car to treat it as an βeffectβ protected by the Fourth Amendment, even if the driver has the renterβs permission to use the car.

Eric J. Feigin, assistant to the solicitor general (Art Lien)
But the justices did not seem satisfied with this rule either. Sotomayor worried aloud that, βif we rule that someone without permissionβ to drive the rental car βhas no expectation of privacy even when the renter has given it to them, then what weβre authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.β
Feigin tried to assure Sotomayor that there was no evidence that such stops are currently βa widespread problem,β but Sotomayor was unpersuaded. In this very case, she pointed out, the police had conceded that they βstopped him because he was driving a rental carβ and they found it βsuspiciousβ that he was driving with his hands in the 10- and two-oβclock positions on the steering wheel.
Although Alito had earlier expressed doubt about the idea of relying on property rights to resolve Byrdβs case, he pressed Feigin to explain why the governmentβs rule would not result in even the driver losing any reasonable expectation of privacy in the car if any provision of the rental agreement is violated.
Feigin countered that, as an unauthorized driver, Byrd had βno connectionβ to the car, describing him as βan interloper in the rental agreement.β
Chief Justice John Roberts saw things differently, telling Feigin that βitβs a pretty big connection that the person who has the right to drive the car told him that he could. Thatβs a connection to the car.β Roberts later seemed to be advocating for an even simpler rule: If it is a rental car, police should look at the rental agreement. βIf itβs not an authorized driver, thatβs itβ β he would have no reasonable expectation of privacy.
When the argument drew to a close, the case was difficult to handicap β particularly because (as the Gorsuch-Sotomayor pairing reflects) Fourth Amendment cases donβt always break down on traditional conservative/liberal lines. Moreover, it is entirely possible that the justices could coalesce around an outcome for one side or the other without necessarily agreeing on the reasoning. All of this is likely to make for interesting reading when the court finally releases its ruling, and a great deal of anticipation until then.
This post was first published at Howe on the Court.