It is not uncommon for one person to rent a car, sign a rental agreement listing the signor as the sole driver, but nonetheless allow another person to drive the vehicle. That is precisely what happened in Byrd v. United States, 584 U.S. ____ (2018). There, a woman rented a car listing herself as the sole driver. The agreement warned: “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.” Nonetheless, as soon as she left the rental office, she handed the keys to the defendant Byrd who drove off on his own. After driving home and collecting some belongings, the defendant decided to drive from New Jersey to Pittsburgh. About three hours into the drive, a state trooper pulled him over. The defendant handed the trooper his interim driver’s license and the rental agreement. While the trooper radioed his dispatcher to check on the occupant’s details, he noticed that the rental agreement did not name the defendant as an authorized driver. By this point, a second trooper had arrived and a conversation ensued during which the second trooper said that, since the defendant was not named on the rental agreement, he had “no expectation of privacy.” The officers then searched the vehicle, uncovering body armor and a large amount of heroin. The question for the Supreme Court was whether an unauthorized driver of a rental car had a “reasonable expectation of privacy” such that he could object to the search.
In a unanimous opinion, the Supreme Court rejected the Government’s position that an unauthorized driver of a rental car never has a reasonable expectation of privacy in the car. But the Court also rejected Byrd’s position that he had such an expectation just because he had control and possession of the vehicle. Instead, the Court suggested a different, and far vaguer, test. To the Court, the question was whether the person had “lawful possession and control and the attendant right to exclude” another. A car thief, therefore, would not have a reasonable expectation of privacy because he was not in “lawful possession” of the car. But the “mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy” even if it were a breach of the rental agreement. The Court did not, however, decide how that test applied in this case. Instead, the Court sent the case back to the lower appellate court with instructions to decide whether someone “who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief.”
The Supreme Court’s decision reaffirms, therefore, the basic principle that a person does not need to own the property that is the subject of the search. A friend using someone else’s apartment—whether leasing it or not—could, therefore, refuse consent to a search if he had the lawful right to be there and exclude others from doing so. But where there is doubt about the legality of the occupant’s presence, the answer might be much different. As is clear, therefore, it is critically important that lawyers advising clients on issues of search and seizure closely analyze not merely the conduct of the officers, but also the rights of the person from whom consent is sought.
If you have any questions about criminal trials, appeals, or search and seizure law, please contact Andrew Horne at firstname.lastname@example.org or call (212) 374-9791.
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