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U.S. Supreme Court: Drivers of Rental Cars Not on Rental Agreement Have Expectation of Privacy

by Dale Chappell

The U.S. Supreme Court held that a driver of a rental car who is not listed as an authorized driver on the rental agreement still had an expectation of privacy in the vehicle for Fourth Amendment purposes, concluding that the U.S. Court of Appeals for the Third Circuit erred holding otherwise.

When Terrence Byrd had someone else rent a car so he could transport drugs to Pittsburgh, the person renting the car did not list Byrd as an authorized driver on the rental agreement. Looking “suspicious” to a state trooper, Byrd was stopped for a supposed traffic violation. When law enforcement found that he was not an authorized driver on the rental agreement, one trooper said that he had “no expectation of privacy” in the car, which meant that he could not refuse a warrantless search of the car in the trooper’s estimation. When asked, Byrd also advised law enforcement that he had a “blunt” in the car and offered to give it to the cops. A search turned up body armor and bricks of heroin. Byrd was charged with possession of both items.

Byrd moved to suppress the evidence on the basis that it violated his Fourth Amendment rights, but the district court ruled that he had no “standing” to contest the search. Byrd then entered a conditional plea allowing him to challenge the suppression ruling. On appeal, the Third Circuit affirmed, holding that Byrd had no expectation of privacy because he was not an authorized driver of the rental car. The court, however, noted, a circuit split on the issue, with most circuits siding with the Third Circuit’s position. The U.S. Supreme Court granted Byrd’s petition for a writ of certiorari to resolve the circuit split.

The question before the Supreme Court was: “Does a driver of a rental car have a reasonable expectation of privacy in the car when he or she is not listed as an authorized driver on the rental agreement?” The Court answered the question in the affirmative.

The Fourth Amendment protects those who have a reasonable expectation of privacy in their person or property from a warrantless search. Simply being in the place to be searched, though, is not enough. Instead, a person must have certain rights to the property, such as the ability to exclude others from the property or place, the Supreme Court has held. Further, the person need not be the actual property owner to have an expectation of privacy in it, the Court recognized. Jones v. United States, 362 U.S. 257 (1960).

The Government argued that a driver who is not authorized in the rental agreement would never have an expectation of privacy in the vehicle based on the rental company’s lack of authorization alone. The Court rejected that position as “too restrictive” under the Fourth Amendment. The Court said Byrd’s opposite argument also would be too permissive because such a rule would allow car thieves to claim an expectation of privacy in the car they have stolen. A rule in between, leaning more toward Byrd’s view, was more appropriate, the Court said.

Car rental agreements “are filled with long lists of restrictions,” the Court noted. “Few would contend that violating provisions like these has anything to do with a driver’s reasonable expectation of privacy in the rental car,” it said. Answering the question before it, the Court held 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 under the Fourth Amendment. Byrd had an expectation of privacy in the rental, the Court held, because he had the ability to exclude others from that car. “The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it. …”

The Court, however, left open the question of whether Byrd’s alleged “fraudulent” scheme to rent the car and the fact that he told law enforcement he had marijuana in the car gave police probable cause for a warrantless search, but that is a question for another day.

Accordingly, the Supreme Court vacated the judgment of the Third Circuit and remanded the case for further proceedings consistent with this opinion. See: Byrd v. United States, 138 S. Ct. 1518 (2018). 

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