The Fourth Amendment applies to unauthorized drivers of rental cars, but don't get too excited, because...The Fourth Amendment applies to unauthorized drivers of rental cars. Take a "Supremely" Deep Dive into Byrd v. US
On Monday, May 14, 2018, the United States Supreme Court decided the case of Byrd v. United States. While the specific holding of the case might not be the most exciting thing to the average person, the case highlights a few interesting aspects of the practicalities of criminal law and criminal defense, as well as some insight into the fundamentals of Fourth Amendment analysis, and even into the way the Supreme Court works.
The Big News (The Holding)
But the "big news" from the case, that is what we lawyers call the "holding" is that unauthorized drivers of rental cars, in general, DO have a right to complain about searches of those cars on Fourth Amendment grounds. That might not sound very exciting but it might peak your interest a little to wrap your mind around the facts in play here.
The facts of the case are relatively simple to summarize. An acquaintance of Mr. Byrd rented a car, while he waited outside the rental agency. She signed a standard agreement stating that she was the only authorized driver and that nobody else was allowed to drive the vehicle. Immediately upon leaving the agency, she handed the keys to Mr. Byrd who put his things in the trunk and drove off by himself. Along the way, police stopped Mr. Byrd because he committed some traffic infraction. As the stop progressed, the police became aware that Mr. Byrd was not an authorized driver, and that he had a criminal history, and that he conceded that he had marijuana cigarette in the car. The police wanted to see what was in the trunk of the car, but Mr. Byrd did not give them permission to open the trunk. The police opened the trunk anyway, ultimately locating body armor and a whole lot of drugs.
The issue in question in this case, in terms of the facts of the case, was whether the police could search the trunk of a car without any reason whatsoever, just because the driver and sole occupant of a rental car was not listed on the rental agreement. In other words, did the fact that the driver was not authorized as a driver of the rental vehicle mean that he had NO RIGHT TO COMPLAIN ABOUT a warrantless, baseless search of the trunk by the police. Could the police simply decide to rummage around inside the trunk for almost any reason at all, whether it is a whim or not? Or did the fact that the driver had possession of the vehicle at least give him the right to expect that the police must behave according to minimum Constitutional requirements for probable cause (or some exception)?
(Note - if you are thinking that the facts I listed above might actually provide some good reasons to wonder what might be in the trunk, you are right, at least to the extent that these reasons are more than no reason. But the Government relied on an argument and wanted to create a rule that would not care whether or not there were a reason, good or otherwise. The Government was looking for a big score in this case by trying to get a rule that simply is that once there is an unauthorized driver, anything goes for the police - no Fourth Amendment issues exist.)
THE BIG QUESTION
The sort of shocking aspect of this case to me was really how big the question was, when you think about it. If the Court had found for the Government in this case, it was going to mean that the Constitution basically didn't apply to the police at all when an unauthorized driver is driving a rental car. On one hand it might not seem like that big a deal, but it seems to me that whenever you create a situation in which the police are relieved from concerns about having to be able minimally to justify their actions on a wholesale level, it is a very serious step indeed. It is hard not to think about whether this is part of a long, tortured, but inexorable surrendering of freedom to authority. The Government wanted the police to be able to rummage around in the trunks of rental cars of people simply because those people were not authorized drivers.
And correctly, I think, the Supreme Court balked at this invitation by the Government. The Supreme Court ruled against the Government here.
One of the more interesting aspects of this case is how the Supreme Court Justices wrestled not just with this particular case, but with a strong concern for the impact of their ruling on society on a far broader scale. And you don't quite get the full sense of this grave concern unless you listen to the actual oral argument of the case that is available online in an incredibly nice, and even fun site. When you click on the link to listen to the argument, you get a transcript to look at that highlights each speaker as it goes. Also, when Justices speak, their images light up a bit so that you can see who is speaking as well. It is a beautifully done site that makes listening to the arguments a pleasure.
But in this case, listening to the arguments, you get a fascinating insight into how the Justices very seriously were concerned not so much with the individual case in front of them, but how any rule they created would influence how police behaved and the impact the ruling would have on society. The lawyer arguing for Mr. Byrd and the lawyer arguing for the Government were both at times frustrated by the Justices interrupting them with questions about other, often very different fact patterns, and how those fact patterns would be handled under their proposed rules. It was fascinating to listen to the lawyers, understandably wanting to make their points for their clients encounter the Justices who were clearly trying to find their way to a workable, sensible rule consistent with understandings about the Fourth Amendment dating back to the 18th Century.
But the oral argument in Byrd is a beautiful discussion of how the Supreme Court is not really meant to be a body that generally addresses the gripes of aggrieved parties in individual cases. While some individual gripe must be the case that they happen to deal with, the Justices are there really for the big picture in most situations.
The Gist of the Case
One of the interesting things about this case is how it illustrates what the Fourth Amendment is really all about. The fact is that the Fourth Amendment is all about PRIVACY. The Fourth Amendment is meant to be an expression of how we define PRIVACY against Government intrusion. The text of the opinion and the oral argument as well is full of precise analysis of the meaning of privacy against Government intrusion.
Generally, we imagine that in the United States we value privacy against the Government. We are suspicious of Government intrusion into our private lives. The Fourth Amendment is, however, where the rubber meets the road in terms of how we translate this general idea about needing to be free of unjustified Government invasion of our privacy. The United States Supreme Court has historically been there to evaluate how these general broad ideas work in the day to day world where there will inevitably be tension between what law enforcement, for example, would like to be able to do for the good cause of combatting crime, and individual interests of the people who don't want the Government invading their privacy without sufficient reason.
The Supreme Court over the years has tried to develop practical, workable guidelines that sufficiently meet law enforcement needs, but that also maintain people's privacy such that people can enjoy the freedom that makes America what it is. It isn't easy, and it always involves tradeoffs. Listen to the oral arguments here in this case and you will hear the Justices struggling to try to figure out a workable rule out of the facts of this case - a rule that won't just come to the right conclusion in Mr. Byrd's case, but one that will also give the police and society guidance in other cases as well.
The Court has a couple of broad and oft quoted ideas that inform the way they try to analyze Fourth Amendment cases. For example, when trying to decide whether a person has a right to complain about the Government searching a particular place, the Court will ask whether society would be prepared to accept as reasonable that the person would have an expectation of privacy in the location. It isn't simply a matter of an individual's notion of what "he" considers private. The Fourth Amendment is considered to be more of something that is for society in general, whatever that expectation is believed to be by the Court.
In this case, the area in question is the trunk of a car. The hard question for the Court in this case, and the source of debate wasn't, however, whether society was prepared to accept that a person has a reasonable expectation of privacy in the trunk of his car that he is driving. That question has long since been decided. We do have an expectation of privacy in the trunks of the cars we drive, generally.
The harder question here relates to a separate question. And that question is related to a concept called "standing". Standing, in the context of a Fourth Amendment case, means whether or not the person complaining about the invasion of privacy has the right to be complaining about the invasion. It has been determined that we can only complain about the Government invading areas where WE have the privacy interest. We can't complain about others' privacy invasions. For example, if the police kick down your neighbor's door without a warrant and find evidence of something illegal, YOU don't have "standing" to complain about it. If it isn't YOUR privacy being invaded, YOUR Fourth Amendment rights weren't violated.
In this case, the Government argued that while a driver USUALLY has a privacy interest in the trunk of the car he is driving, Mr. Byrd should not be considered to have a privacy interest in the trunk of the rental car because it wasn't his car, and further, he was not an authorized driver on the rental agreement. The Government argued that he therefore did not have a sufficient connection to the car that would give rise to an expectation of privacy in the trunk.
Mr. Byrd made the argument, however, that the expectation of privacy that a driver has in the trunk of the car isn't created by a rental contract. It is a more basic expectation of privacy that comes from his possession of the car. The fact that a contract says that he shouldn't be driving it may make him in violation of a contract, for which he could be sued for damages perhaps, but it doesn't somehow mean that he no longer can expect that what he puts in the trunk is generally going to be free from random police stops and rummaging. Mr. Byrd relied on ancient concepts of property law that tell us that possession of property gives us a sort of presumptive right to exclude others from that property, except someone with a "better" claim of right to the property. (Possession is nine tenths of the law, so they say - this was even said out loud during the oral argument on the case.) If you listen to the oral argument, you will hear the Justices and the lawyers going on about this right to exclude others and ancient property law concepts. It is fascinating.
It is easy to get lost in the facts of the case and point to the fact that Mr. Byrd had lots of illegal drugs and body armor in the trunk and that is bad, and that maybe he ought not be found to have a privacy interest in the trunk of the car. But the Justices were worried about the interests of the innocent, when confronting the Government's argument for their proposed rule in the case. The Justices were worried that if the Government got its way, and got them to rule that unauthorized drivers had no privacy rights in the trunks of cars, that rental cars would then always be subject to being stopped, until it is determined that the driver is authorized, or that unauthorized drivers, who are not committing any crime (only a contract violation) will be subject to having the police rummaging around their belongings on the side of the road, and there will be no need to offer any justification. Police would be authorized to rummage around on a whim. The Government's only answer to this was essentially that they didn't think it would be a problem. The Justice asking about this issue was less than satisfied with the Government's answer, even to the point of describing the Government's lawyer as "disingenuous".
And therefore, weighing the issues, the Court unanimously decided that the rule should be unauthorized drivers of rental vehicles DO have an expectation of privacy in the trunk of the vehicles they drive.
Note that this does not apply to a "car thief". The reason that a car thief has no privacy interest in the car is that the car thief's possession of the car is illegal to begin with. The car thief's presence in the car is itself hostile to the car and society is NOT prepared to accept that a car thief has a reasonable expectation of privacy in any part of a stolen car.
And so, sort of along these lines, the petitioner, Mr. Byrd, although he sort of "won" at the Supreme Court, did not win as much as you might think.
BYRD WINS, KIND OF...
For Mr. Byrd, it is kind of a good news, bad news thing. The good news is that the Supreme Court rejected the Government's argument and held that the Constitution DOES apply to the police in his case. The bad news, however, is that the Supreme Court sent the case back for further review because the Constitution applies to the police actions here.
Huh? Hang in there...
Here's what happened. When the case was originally heard, the defense made the argument that the police didn't have the right to search the trunk of the car. Based on such an argument, the Court granted Mr. Byrd a hearing to develop the facts, so that the lawyers could make their legal arguments about the police conduct, such as the initial reason for the stop of Mr. Byrd's vehicle, and then the actions taken by the police afterwards, including rummaging around the trunk of the vehicle without his permission. After the hearing, the court denied Mr. Bryd's motion, and although he then took a plea bargain, the lower court allowed him to maintain his right to appeal the search issue. Mr. Byrd appealed to the Third Circuit Court of Appeals. The Third Circuit upheld the lower Court, ruling against Mr. Byrd.
In its opinion, however, the Third Circuit cut off Mr. Byrd's argument about lack of consent for the police to search the trunk by seizing upon their belief that, as an unauthorized driver, Mr. Byrd did not have any Constitutional rights worth protecting, and that the police could rummage around inside the trunk all they liked without any cause at all, let alone probable cause. The Third Circuit point blank ended the decision there and then, and never bothered to address the impact of lack of consent on the police conduct regarding the trunk of the car.
This meant that once the Supreme Court decided that in fact Mr. Byrd DID have a Fourth Amendment right to complain, contrary to what the Third Circuit said, that there was no decision for them to review on that point. Therefore, the Supreme Court returned the case to the Third Circuit to reach the next issue - that is, what impact does Mr. Byrd's lack of consent to search have on the legality of the police actions in searching the trunk anyway.
This means that Mr. Byrd is far from out of the woods yet. There are two reasons for this.
First, while the Supreme Court decided that in general an unauthorized driver is protected by the Fourth Amendment, not EVERY unauthorized driver is protected. A criminal who has stolen the rental car, a car-thief, is NOT protected by the Fourth Amendment. Now while the facts clearly show that Mr. Byrd was not a car thief, the facts could support the idea that Mr. Byrd was involved in a scheme with the person who rented the car to deceive the rental car agency about who was going to be using the car. The Supreme Court sent it back down for the lower courts to sort out their notions of whether this potential fraud, if established, makes Mr. Byrd a "car thief" for purposes of deciding whether the Fourth Amendment applies to him. Therefore, if the lower courts now find that Mr. Byrd was the "equivalent of a car thief" then Mr. Byrd's appeal will be lost. A car thief has no Fourth Amendment rights in the car he is driving. (Of course the Supreme Court did not decide this issue, so it could be the subject of yet another Supreme Court case if it goes that way.)
Second, even if the lower courts find that Mr. Byrd is not a "car thief" (or sufficiently like a car thief), he is STILL not out of the woods. At this point, it would simply be up to the lower Courts to decide whether the police actions taken (rummaging through the trunk against the wishes of the driver of the vehicle) were justified within the rules of the Fourth Amendment. A classic exception to the warrant requirement of the Fourth Amendment is the so called "automobile exception" which in the right circumstances, permits the police to take all sorts of intrusive actions without a warrant in cases involving automobiles. In Mr. Byrd's case, the circumstances of the stop, including the fact that he admitted to having marijuana in the car, might cast a significant doubt on whether he will press his Supreme Court victory into ultimate victory in his case. In that event, Mr. Byrd would join the most famous Supreme Court criminal defendant of all, Ernesto Miranda, as not actually significantly personally benefiting from a Supreme Court victory.
(There was an amusing exchange in the oral argument when one of the Justices kept asking Mr. Byrd's lawyer "Why are you here?" making a point about whether or not there was really anything for the Court to decide yet. After hearing this a few times, Justice Ginsberg answered for Mr. Byrd's lawyer. She said something to the effect of, "You are here because you lost below." which drew general laughter from the room. Who knew Justice Ginsberg was such a cut-up?)
BY DON A. MURRAY, ESQ.
I have been a New York City criminal defense lawyer for more than 27 years helping people accused of crimes in NYC Criminal Courts. Call me at 718-268-2171 to discuss your case.
If you enjoyed this article, perhaps you might enjoy some other "deep dives". Here is a list of all of my "Deep Dive" articles.