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

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 renter’s permission to use the car, has a reasonable expectation of privacy in the car’s 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 Byrd’s constitutional rights. Instead, he contended, what matters is whether Byrd had a reasonable expectation of privacy when, with the permission of his fiancée (who had rented the car), he locked his things in the trunk of the rental car, even if he knew he didn’t have the rental company’s permission to drive the car.

Justice Anthony Kennedy was skeptical, suggesting that Byrd’s conduct indicated that he was up to no good from the beginning. “The case is presented,” Kennedy told Loeb, “as 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 didn’t want to be on the car rental and it was very clear that he was going to be the only one to drive it.”

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. “See, Fourth Amendment law is too complicated in a sense already,” Breyer said. “So you look for principles or rules that will allow policemen and others to understand what it is they’re supposed to do.”

And Justice Sonia Sotomayor questioned Loeb’s proposed rule: “How will the police know,” she asked, whether you have the renter’s 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. “Why are we here?” asked Sotomayor. “Meaning, once he admitted that … the goods in the trunk were his, I don’t know why that doesn’t give him” the automatic right to challenge the search.

“Exactly. Exactly. Exactly,” responded Loeb.

Gorsuch then chimed in to make a similar point. He began by observing that, under “ancient” 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 “very complicated,” 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 “has a reasonable expectation of privacy of the parts of the car, unless in driving or possessing it … he’s committing a crime”?

Yes, Loeb responded.

But not everyone seemed to be on board. Justice Samuel Alito noted that “the word ‘property’ doesn’t appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson’s dictionary as ‘goods or movables.’” Would the word “effects” 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 – specifically, that Byrd had “violated important contract terms, terms that are of some significance to the owner of the property” and was “engaged in conduct that frustrates law enforcement in various ways.” “So why is it,” she queried, “that society should be prepared to recognize this conduct as reasonable?”

Arguing on behalf of the United States, Eric Feigin offered another bright-line rule – this time, one that would resolve the case in the government’s 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 “effect” protected by the Fourth Amendment, even if the driver has the renter’s 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, “if we rule that someone without permission” to drive the rental car “has no expectation of privacy even when the renter has given it to them, then what we’re authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.”

Feigin tried to assure Sotomayor that there was no evidence that such stops are currently “a widespread problem,” but Sotomayor was unpersuaded. In this very case, she pointed out, the police had conceded that they “stopped him because he was driving a rental car” and they found it “suspicious” that he was driving with his hands in the 10- and two-o’clock positions on the steering wheel.

Although Alito had earlier expressed doubt about the idea of relying on property rights to resolve Byrd’s case, he pressed Feigin to explain why the government’s 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 “no connection” to the car, describing him as “an interloper in the rental agreement.”

Chief Justice John Roberts saw things differently, telling Feigin that “it’s a pretty big connection that the person who has the right to drive the car told him that he could. That’s a connection to the car.” Roberts later seemed to be advocating for an even simpler rule: If it is a rental car, police should look at the rental agreement. “If it’s not an authorized driver, that’s it” – he would have no reasonable expectation of privacy.

When the argument drew to a close, the case was difficult to handicap – particularly because (as the Gorsuch-Sotomayor pairing reflects) Fourth Amendment cases don’t 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.

Recommended Citation: Amy Howe, Argument analysis: Rental cars, reasonable expectations of privacy and property rights, SCOTUSblog (Jan. 9, 2018, 9:35 PM),