Does a driver in sole possession of a rental car and with the renter’s permission to operate the car, but not included as a driver on the rental agreement, have a reasonable expectation of privacy that is entitled to constitutional protection?
Terrence Byrd was pulled over by a Pennsylvania police officer for violating a state driving law. Eventually, the officer and another police officer discovered that Byrd was driving a rental car but was not a named driver on the rental agreement. Moreover, the officers also discovered that Byrd had a criminal record that included drug, weapon, and assault charges. Ultimately, the officers asked Byrd for permission to search the car, which they assert that Byrd granted, and, the officers found both heroin and illegal body armor in the car. Byrd challenged the stop and search arguing that it was unlawful. The District Court held that the stop and search was lawful. On appeal, the Third Circuit further recognized that the driver of a rental car who is not listed on the rental agreement did not have a reasonable expectation of privacy. The Supreme Court will likely resolve the Circuit conflict regarding whether a reasonable expectation of privacy exists for a driver in sole possession of a rental vehicle that is not listed as a driver on the rental agreement.
Questions as Framed for the Court by the Parties
The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter’s permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?
In Harrisburg, Pennsylvania, a state police officer pulled petitioner Terrence Byrd over for violating a state driving law. The police officer, eventually accompanied by another officer, found that Byrd was driving a rental car but that Byrd’s name was not on the rental agreement. By examining the identification documents Byrd provided, the officers found that Byrd had documentation of an alias, James Carter. The officers also learned Byrd had a criminal history that included drug, weapon, and assault charges.
The officers asked for Byrd’s permission to search the rental car and asserted that permission was unnecessary because the rental car agreement did not list Byrd’s name. According to the officers, Byrd gave his consent to the search. The officers found both heroin and illegal body armor in the car.
At trial, Byrd moved to suppress the evidence of heroin and the body armor that the officers found, arguing that the stop and the search was unlawful. The District Court held that the stop and the search was lawful, notably holding that Byrd had no expectation of privacy in the car because his name was not on the rental agreement.
On appeal, the Third Circuit first held that the traffic stop of Byrd was lawful, dismissing Byrd’s various arguments that the stop was constitutionally unreasonable under the Fourth Amendment. Second, the Third Circuit also held that the driver of a rental car who is not listed on the rental agreement has no expectation of privacy in the car and therefore does not have standing to challenge the reasonability of a search of the car. However, the Third Circuit recognized that a circuit split exists as to this question. The Third Circuit concluded that the search of the rental car was constitutionally reasonable. Byrd is appealing the Third Circuit’s ruling that he had no expectation of privacy in the rental car.
DOES A NON-RENTER DRIVER OF A RENTAL CAR HAVE A REASONABLE EXPECTATION OF PRIVACY?
Byrd asserts that the Fourth Amendment gives him a reasonable expectation of privacy because he possessed and controlled a closed space: the rental car that Byrd’s fiancée allowed Byrd to drive. In fact, Byrd argues that this reasonable expectation of privacy does not depend on whether one has a property right in the space. Indeed, Byrd contends that ample precedent illustrates that a person who lawfully possess and controls a closed space has an objectively reasonable expectation of privacy because the person can prevent others from accessing the space; for example, a person reasonably expects privacy in a public telephone booth, a shared office space, and in parts of a taxi within the passenger’s control. Moreover, Byrd argues that one’s possession and control over a space does not need to be exclusive or absolute for one to have a reasonable expectation of privacy: limited possession and the ability to control and exclude strangers from the space suffices. Indeed, Byrd contends that because he was permitted to drive the rented car, drove the car as a family member, and could exclude others from the car, Byrd had a reasonable expectation of privacy entitled to protection under the Fourth Amendment.
The United States counters that a person’s possession and control over a closed space is not enough to create a reasonable expectation of privacy protected by the Fourth Amendment. In fact, the United States contends that there are no precedents that support the proposition that a person’s possession and control over a closed space create a reasonable expectation of privacy. Indeed, the United States asserts that the possession and control must be legitimate. In other words, a reasonable expectation of privacy depends upon whether a person had a legally recognized right to control and possess the closed space. According to the United States, A person who has not expressly been included in the car’s rental agreement does not have legitimate possession nor control of the car. Additionally, the United States contends that extending Fourth Amendment protections to persons in a relationship like that of Byrd and his fiancée, an engaged couple, requires a statutorily-provided showing of a close relationship or a showing of exceptional circumstances; neither of which Byrd, the United States argues, made in this case.
WHETHER BREACH OF THE RENTAL CONTRACT RENDERS AN EXPECTATION OF PRIVACY UNREASONABLE?
Byrd argues that breaching the car’s rental agreement—which occurred when Byrd’s fiancée permitted Byrd, who was not expressly included as an authorized driver, to drive the rental car—does not transform a person’s otherwise reasonable expectation of privacy into an unreasonable one. In fact, Byrd contends that commercial contracts, like rental car agreements, do not generally interfere with constitutional issues of privacy because commercial contracts are entered for business purposes and not privacy considerations. As an example, Byrd points out that a tenant is constitutionally protected against unreasonable searches and seizures even if the rental agreement allows the landlord to access the tenant’s room. Moreover, Byrd asserts that the specific rental provision at issue, the “authorized-driver provision,” is not a provision that relates to privacy; instead, authorized-driver provisions involve allocating risk between the renter and the rental company. In fact, Byrd argues that authorized-driver provisions are used because rental companies expect that rental cars will be driven by unlisted drivers and those provisions mitigate the rental company’s risk. Indeed, Byrd contends that a breach of a rental agreement does not end a person’s reasonable expectation of privacy because a driver’s reasonable expectation of privacy is derived from societal expectations of privacy, and not derived from the performance or non-performance of contractual provisions.
The United States counters by claiming that Byrd’s use of the rental car constituted an unjustified breach of contract that does not entitle Byrd to a reasonable expectation of privacy. Car rental agreements, the United States concedes, are indeed commercial agreements, but they are agreements for specific customers for specific transactions; rental companies are particularly thorough with regards to who is permitted to drive the rental car because of the magnitude of risk involved. Indeed, car rental agreements, the United States argues, only include non-renters who are legally connected through, for example, a spousal relationship. In sum, the United States asserts that a non-renter with no legally cognizable connection to the renter, like Byrd, is essentially a “stranger” to the contract and cannot have a reasonable expectation of privacy while driving the rental car.
DOES A CONSTITUTIONALLY PROTECTED PROPERTY INTEREST EXIST?
Byrd argues that, regardless of whether he had an objectively reasonable expectation of privacy, he had a constitutionally protected property interest in the rental car that was violated by the officers’ search. Byrd asserts that his fiancée became a bailee when she took possession of the car from the bailor, the rental company; this relationship, among other things, gave Byrd’s fiancée certain property interests, including the right to exclude others from the car. . Indeed, Byrd argues that third parties to the bailor-bailee relationship, like Byrd, may also become a kind of bailee, sometimes referred to as a sub-bailee, when a bailee transfers and the sub-bailee receives the property; importantly, Byrd claims that this relationship can be established even when the bailor does not permit the bailee to transfer the property. In fact, Byrd contends that all that is required to establish a sub-bailee relationship is that the third party must knowingly accept the bailed property, as Byrd did when he accepted the car from his fiancée. A sub-bailee, Byrd asserts, has the property rights of a bailee, including the right to possess the car, the right to exclude others from the car, and the Fourth Amendment right against unreasonable searches of a person’s property.
The United States counters by arguing that the rental agreement, while indeed a bailment, is a particular type of personal bailment that does not permit the bailee to transfer the property to Byrd and create a sub-bailee relationship. Indeed, the United States contends that, as a general matter, bailees cannot transfer their rights to another person absent an understanding or agreement; in fact, the United States argues that the rental agreement clearly follows this general rule by forbidding any unauthorized drivers from using the rental car at three separate places in the contract. Moreover, the rental agreement, the United States asserts, created a bailment “personal to the bailee,” because of the highly-individualized nature of the rental agreement: the rental company permitted the rental only after investigating Byrd’s fiancée’s driving record and criminal background. Because Byrd’s fiancée was not authorized to transfer the rental car to third parties, the United States claims, Byrd could not become a sub-bailee of the rental car. Indeed, the United States asserts that the unauthorized transfer may actually constitute conversion or theft and be a tortious or criminal act.
CURTAILMENT OF FOURTH AMENDMENT PROTECTIONS, PARTICULARLY FOR LOW-INCOME INDIVIDUALS AND MINORITIES, OR AFFIRMATION OF EXISTING PROTECTIONS
The American Civil Liberties Union and the National Association of Criminal Defense Lawyers (“ACLU and NACDL”), in support of Byrd, argue that not extending Fourth Amendment protections to rental cars driven by an individual whose name is not on the rental agreement would unfairly curtail Fourth Amendment protections, specifically of low-income individuals and minorities. The ACLU and NACDL first emphasize the importance of the rental car industry by stating that consumers use half of all rental cars locally (as opposed to use for travel). The National Association for Public Defense and the National Association of Federal Defenders, in support of Byrd, agree and add that the rental car industry is only growing more important as the “sharing economy” develops (car-sharing services’ revenue has grown more than ten-fold in less than a decade), and low-income individuals participate in the sharing economy at a greater rate than the national average. The National Motorists Association (“NMA”), in support of Byrd, adds that while traditional car-rental services relied upon the rental agreement to determine whether Fourth Amendment protections applied, modern car- and ride-sharing services offer such varied contractual terms so as to make relying upon the rental agreement to determine Fourth Amendment protection obsolete. Moreover, the ACLU and NACDL argue that maintaining an exception to the Fourth Amendment for rental cars would essentially punish low-income individuals, because they are unable to purchase their own vehicle and thus earn more privacy, and minorities, because they are more statistically likely to be the subjects of a traffic stop. Finally, Restore the Fourth, Inc., in support of Byrd, agrees that such an exception would disproportionately harm minorities and adds that the problem is compounded in areas hit by catastrophes such as Hurricane Harvey—which destroyed over a million cars—because those affected by the catastrophes turn to the car rental market.
Arizona et al., in support of the United States, contend that the Third Circuit’s rule would not lead to any curtailment of existing Fourth Amendment protections regardless of socioeconomic status or race because a police officer still must have a “reasonable suspicion” to justify a search and seizure. Arizona et al. note that all the circuits agree a defendant driving a rental car may be a factor in a reasonable suspicion inquiry but no circuits consider it dispositive; thus, Arizona et al. argue, Byrd’s assertion that the Third Circuit’s rule gives carte blanche to officers to stop all rental cars is unfounded.
POTENTIAL FOR POLICE ABUSE OF CIVIL ASSET FORFEITURE POLICIES
The NMA, in support of Byrd, argue that a Fourth Amendment exception for drivers not listed on a rental agreement will encourage law enforcement officers to abuse their power by seizing unprotected motorists’ assets and retaining a portion of the assets for their own departments via civil asset forfeiture policies. The NMA notes that the Department of Justice’s Office of the Inspector General has censured the Department’s civil asset forfeiture policies because operations such as traffic stops do not adhere to the general rationales underlying civil asset forfeiture policies—supporting ongoing investigations and catalyzing arrests and prosecutions.
Arizona et al., in support of the United States, assert that Byrd’s prediction of abuse of the Third Circuit’s rule is incorrect because there is no evidence of such abuse from the six years during which the rule has been in effect. In fact, Arizona et al. argue, there is not a single case in the Third Circuit from the last six years in which the police stopped a car only because the car was a rental. Moreover, Arizona et al. contend, officers rarely if ever know that a car is a rental before a stop.
IMPORTANCE OF ANALOGOUS ARGUMENTS TO FOURTH AMENDMENT PROTECTIONS OF DIGITAL DATA
Restore the Fourth, Inc., in support of Byrd, argue that this case’s importance transcends car rental agreements because if the Court holds that a citizen can waive Fourth Amendment protections by a contract with a car rental company, then the same logic will allow a citizen to waive Fourth Amendment protections in a contract with a digital service such a cloud service provider. Restore the Fourth, Inc., cites common contractual provisions, provisions similar to those at issue in this case, in contracts with popular services such as Dropbox, iCloud, and Tinder; if the Court holds that Byrd had no expectation of privacy, this may indicate that consumers have no expectation of privacy in data disclosed to these services. In a similar vein, the Electronic Privacy Information Center and Twenty-Three Technical Experts and Legal Scholars (“EPIC”) argue that this case is about much more than items physically contained inside a rental car because modern cars contain more information in phonebooks, GPS locations, and in-cab video surveillance. Thus, EPIC argues, allowing a warrantless search of a car driven by an individual unlisted on the rental agreement would allow law enforcement to access vast troves of personal data otherwise unobtainable.
- Bryan Koenig, Justices Agree to Hear Nonrenter Car Searches Challenge, Law360 (Sept. 28, 2017).
- Adam Liptak, Pulled Over in a Rental Car, With Heroin in the Trunk, The New York Times (Jan. 1, 2018).