Fourth Amendment Rights for Unauthorized Drivers of Rental Cars

Fourth Amendment Rights for Unauthorized Drivers of Rental Cars


Fourth Amendment Rights for Unauthorized Drivers of Rental Cars

 

Over 115 million car rentals take place annually across the United States.[1] Car rental agencies have branch offices in nearly every city and the top agencies such as Enterprise, Hertz, and Avis generate billions of dollars in revenue annually.[2] On January 9, 2018, the Supreme Court of the United States heard arguments in a case, Byrd v. United States, which lies at the intersection of cars and the Constitution.

The case of Terrence Byrd focused on the question of whether the Fourth Amendment applies to the search of a rental car operated with the renter’s permission but without the driver being listed as an authorized driver on the rental agreement.[3] 

In the summer of 2014, Pennsylvania state troopers stopped a Ford Fusion driven by Terrence Byrd for a minor traffic violation. According to police reports, he was driving in the left lane of Interstate 81 outside of Harrisburg, while state law only permits drivers to use the left lane for passing.[4] Byrd seemed “extremely nervous” after he was pulled over. When asked, he provided officers his driver’s license as well as the rental car documents. Officers reviewed rental agreement and noticed that Byrd’s name was not on there. Instead, the agreement was under the name of Latasha Reed, Byrd’s girlfriend.[5]

Over the course of the nearly 40-minute stop, Byrd admitted that he had smoked a marijuana cigarette in the car.[6] Since the rental agreement didn’t authorize Byrd to drive the vehicle, troopers told him they didn’t need his consent for a search of the vehicle and proceeded to search it over his objection. When troopers searched the car’s trunk, they found nearly 2,500 small bags of heroin, as well as body armor.[7]

A federal grand jury charged Byrd with one count of possession of heroin with intent to distribute and one count of possession of body armor by a prohibited person.[8] The district court sentenced him to ten years in prison.[9]

On appeal, the United States Court of Appeals for the Third Circuit affirmed Byrd’s conviction and found that the stop was lawful. It reasoned that “the sole occupant of a rental vehicle” has no “Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement,” and so the occupant may not “challenge a search.”[10]

Byrd then appealed this ruling to the Supreme Court.

The United States Constitution’s Fourth Amendment provides that the right of the people to “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” shall not be violated.[11]

The Fourth Amendment has been interpreted to protect people as well as possessions, such as cars, baggage and even phone conversations in many cases.”[12]

However, an important limitation on the Fourth Amendment protection is that for the Fourth Amendment to apply, the search or seizure must be of property or in a location in which the defendant had a “reasonable expectation of privacy.”

It is well-settled that the owner and driver of the car has a reasonable expectation of privacy in the car’s interior and contents.[13]

On the other hand, the Supreme Court has ruled that a passenger who does not own the car does not have a reasonable asportation of privacy. In the 1978 Supreme Court case, Rakas v. Illinois, Frank Rakas and Lonnie King were traveling with two female companions, one of whom was driving, when they were stopped by police regarding an armed robbery that had taken place earlier that day.[14] Police searched the car and discovered a box of shotgun shells in the glove compartment and a sawed-off shotgun.

The lower court denied Rakas’ motion to suppress the evidence seized because as a passenger in the car, he lacked standing to challenge the search’s legality.

On appeal before the Supreme Court, the defendants argued that they had a reasonable expectation of privacy because they had permission to be in the car. The Court disagreed.[15] The Court ruled that it did not matter whether the passengers had the right to be in the car. What mattered was ownership and control of the space. A passenger that does not own a car does not have a reasonable expectation of privacy in the car and its interior.  

Given that a passenger does not have a reasonable expectation of privacy in the interior of the car but that a driver who owns the car does, the question becomes: what about an unauthorized driver? A rental car without the name of the driver in the contract is a manifestation of an unauthorized driver.

The Eighth and Ninth Circuits, as well as four state supreme courts have held that an unlisted driver has standing to challenge a search, so long as the renter named in the agreement permits the unlisted driver to drive the car.[16] On the other hand, the Third, Fourth, Fifth, and Tenth Circuits, as well as two other state supreme courts, have held that the unlisted driver does not have standing to challenge the search of a rental car, because unlisted drivers don’t have an expectation of privacy.[17] The Sixth Circuit has taken a middle position, adopting “a totality of the circumstances” test to consider numerous factors regarding an unauthorized driver’s use of the rental car to determine if he has standing.[18]

The division of authority subjects an interstate driver to arbitrary fluctuations in his Fourth Amendment rights.[19] In Whren v. United States, the Court advised that the “search and seizure protections of the Fourth Amendment” should not “vary from place to place and from time to time.[20] To resolve, the conflict, the Supreme Court has agreed to hear the Byrd case, in which the issue will be settled under the Fourth Amendment.  

The American Civil Liberties Union filed a brief in support of Byrd, writing that if unauthorized drivers are not granted privacy rights, there would be a considerable effect on a “broad swath of the population, especially individuals who have come to depend on rental cars for everyday travel because they cannot afford to purchase their own vehicles.[21] As Byrd’s attorneys write in their brief, the government appears to want “to transform a violation of a car-rental agreement into a rule where unlisted drivers have no ability to even invoke the Fourth Amendment.[22] They argue that should the government prevail, it will have the power to conduct suspicion-less searches whenever it stops a rental car driven by an unlisted driver for a routine traffic violation.[23]

            The divide in thinking on this issue manifested itself during the case’s oral arguments. Chief Justice John Roberts and Justice Samuel Alito seemed most receptive to the government’s arguments, while Justice Sonia Sotomayor seemed to side with Byrd. By June 2018, the Supreme Court will settle the current uncertainty and determine whether an unlisted driver can invoke the Fourth Amendment against police searches.



[9] Id.

[10] Id.

[11] U.S. Const. amend. IV.

[12] Katz v. United States, 389 U.S. 347, (1967).

[13] See, e.g., Pennsylvania v. Labron, 518 US 938, 116 S. Ct. 2485, 135 L. Ed. 2d 1031 (1996)

[14] Rakas v. Illinois, 439 U.S. 128, (1978).

[15] Justin Simmons, “Hertz and the Fourth Amendment: A Post-Rakas Examination of an Unauthorized Driver’s Standing the Challenge the Legality of a Rental Car Search,” 15 Geo. Mason L. Rev. 479, (2008). 

[17] Id.

[18] United States v. Smith, 263 F.3d 571, (6th Cir. 2001).

[19] Darren Goldman, “Resolving a Three-Way Circuit Split: Why Unauthorized Rental Drivers Should Be Denied Fourth Amendment Standing,” 89 B.U.L. Rev. 1687, (2009).

[20] Whren v. United States, 517 U.S. 806, (1996).