Earlier this year, we featured the stories of Terrence Byrd and Jerald Lateith Brown, both of whom followed a similar path to prison using a rental car registered in someone else's name to transport drugs. Each was pulled over for driving slowly in the passing lane (a frequent topic of discussion among the AutoSlash team), neither was listed as an authorized user of the rental car, and both were caught in crimes after the rental cars were searched. Mr. Byrd's sentence was particularly harsh, as he was caught with a bulletproof vest and a lot of heroin in the trunk of the rental car (not his rental car). Feeling that his Fourth Amendment right to a reasonable expectation of privacy was violated after he had disclosed a different illegal drug in the vehicle, his legal team petitioned to have his case heard by the Supreme Court of the United States.
Mr. Byrd may one day be free as a bird.
Mr. Byrd's legal team succeeded in getting the U.S. Supreme Court to hear his case. After all, seven of the U.S. Circuit Courts of Appeal had heard at least 23 cases on the issue and had come to three different rulings -- two of the seven circuits said an unauthorized driver did have a reasonable right to privacy, four of the seven determined an unauthorized driver did not have a reasonable right to privacy, and the final circuit came up with "it depends" when reading the same text about unreasonable search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Who knew that the privacy rights of individuals not listed on rental car contracts could amount to a Constitutional crisis? Given many similar cases had made federal circuit courts of appeals, this legal issue is rather common and the result was inconsistent rulings; the Supreme Court needed to get involved because Constitutional rights can't vary based upon where one resides!
What was surprising to many is that the justices unanimously agreed with the two of seven circuits ruling that an individual driving a rental car but not listed on the rental car contract has a reasonable right to privacy against search. What many media sources are missing -- including austere ones such as The Washington Post -- is that the ruling had three parts and unauthorized drivers aren't necessarily protected.
Court now holds, that 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. The Court leaves for remand two of the Government’s arguments: that one 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; and that probable cause justified the search in any event.
Part I -- The Rental Agreement is a Contract, Not Law
The justices were clear that a rental agreement was a contract where violating the "unauthorized driver" provision wasn't sufficient to change any legal rights. The rental car company has remedies for unauthorized drivers and other violations of the rental car contract -- including canceling any protections and using the "Do Not Rent list" -- but handing over rental car keys to a known or suspected criminal is, for now, a contractual issue, not (directly) a criminal one. And that ties into Part II of the ruling.
Part II -- Wouldn't a Straw-Person Acquisition of a Rental Car Be Illegal?
The justices took a pass on whether it was immediately a crime for one individual to use a third-party to rent a car when the first individual knew he/she was ineligible to rent a car. Neither Byrd nor Brown was eligible to rent a car on their own; they didn't meet the rental car company's minimum requirements for drivers! The federal government claimed that as such, Byrd should be treated the same as a car thief when it came to no expectation of privacy. The government's claim was:
Byrd should have no greater expectation of privacy than a car thief because he intentionally used a third party as a strawman in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime. This argument is premised on the Government’s inference that Byrd knew he would not have been able to rent the car on his own, because he would not have satisfied the rental company’s requirements based on his criminal record, and that he used Reed, who had no intention of using the car for her own purposes, to procure the car for him to transport heroin to Pittsburgh.
So why did the Supreme Court take a pass on this part of the federal government's case? The federal government hadn't presented that argument at any lower court. And the government not previously presenting an argument also ties into the third part of the ruling.
Part III -- Did the Officers have Probable Cause Anyway?
Remarkably, the federal government hadn't made the case at the Circuit Court whether the police officers had probable cause to initiate a search after Mr. Byrd noted he had another illegal drug in the vehicle. Why? The previous court's ruling that the unauthorized driver lacked a reasonable expectation of privacy in a rental car meant that getting a search warrant would be moot.
Also left for remand is the Government’s argument that, even if Byrd had a right to object to the search, probable cause justified it in any event. The Third Circuit did not reach this question because it concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car.
So Where Does that Leave Mr. Byrd?
Mr. Byrd's probably going to remain in jail for a while. Per the Supreme Court's ruling, he didn't automatically lose his fourth amendment protections but there's are still the questions as to whether there was probable cause for the search and whether an unauthorized driver should be treated the same as a criminal. And while the media might breathlessly claim that it's a major win for unauthorized drivers and the fourth amendment, it's really not. The Supreme Court has precisely stated that lower courts should determine:
- Whether a driver who acquires a rental car under false pretense (a straw purchase) has committed a crime and
- Whether there was probable cause for a search after Mr. Byrd stating he had drugs in the car.
And as noted in our previous blog post, the implications of this case go beyond applicability to rental car companies. Participants in the sharing economy should be equally interested in the case. List one of your personal vehicles on GetAround or Turo and the driver hands over the car keys to a high school student or criminal? List your home on Airbnb and have a house party that exceeds the listed home capacity or gets used for "suspicious activities"? As of the moment, a contract provision related to unauthorized drivers/occupants alone is insufficient to protect those in the sharing economy.