Four Thoughts on Byrd v. United States
When do unauthorized drivers have Fourth Amendment rights in rental cars?
Next Tuesday, January 9th, the Supreme Court is featuring a Fourth Amendment double bill: Byrd v. United States and Collins v. Virginia. I wanted to offer some thoughts on Byrd, which asks whether persons can have Fourth Amendment rights in rental cars when the rental company has not authorized them as drivers. I'll assume readers are familiar with the briefs in the Byrd case (available here), and I'll instead focus on some of the aspects of the case that struck me as interesting.
1) The Standing Continuum Returns! The Byrd case concerns a basic question in Fourth Amendment law: How much of a relationship does one need to have with property—in this case, a rented car—to be able to object to an illegal search or seizure of it? This is Question 2 in my textual breakdown of Fourth Amendment law, which everyone in Fourth Amendment law calls "standing" even though the Supreme Court has told us we really shouldn't call it standing (more on this below). When I teach Fourth Amendment standing, I generally teach it as a line-drawing exercise with points along a continuum. Everyone agrees on the extremes, and the disagreement is where to draw the line. How much of a connection, and what kind of connection, is enough?
In the context of houses, for example, I give the students a few scenarios for the individual's relationship with a house that is searched:
(a) He owns the house.
(b) He rents the house.
(c) He's an overnight guest at the house with the homeowner's permission.
(d) He's over at the house for a few hours one day to help bag illegal drugs for sale.
(e) He's a squatter inside an otherwise-abandoned house.
(f) He's a burglar inside the house while the owners are away.
Everyone agrees that the person should have standing to challenge an illegal search in (a) and should not have standing to do so in (f). The tricky issues are somewhere in the middle. Rightly or wrongly, the Supreme Court has drawn the line somewhere between (c) and (d), as seen by comparing Minnesota v. Olson (scenario c) and Minnesota v. Carter (scenario d). The basic idea is that if you're an overnight guest, the house is temporarily yours; if you're just over for an illegal commercial transaction, it's not really your house. But either way, the choice is really about drawing lines on a continuum.
The briefs in Byrd invite similar line-drawing, focusing on different ways of characterizing the facts. To the government, it was the rental car company's car and the rental company determined who could use it. The rental car company made a careful choice to rent the car to Reed instead of Byrd, and Reed and Byrd schemed to get around the rental car company's choice. Byrd can't get standing from that. To Byrd, on the other hand, it was effectively Reed's car, and Reed's grant of permission to Byrd made it Byrd's car, too. The rental company contract was just some fine print that doesn't matter, so it can't control whether Byrd has Fourth Amendment rights in the car.
I came into the Byrd case vaguely inclined to favor Byrd's side—I was on a cert petition on Byrd's side years ago—but after reading the briefs I don't have a particular view of which side is right. Both strike me as plausible approaches.
2) The Hidden Role of Mens Rea. I wonder if other readers share my impression that mens rea (mental states) has a hidden role in determining the standing question. If we take the fundamental issue to be whether the car was in a practical sense Byrd's car, then I get different instincts depending on what Byrd was thinking. For example, if Byrd just happened to have borrowed Reed's rental car, and it just never occurred to him whether the rental car company allowed that, then I can see the car as effectively Byrd's and it makes sense that Byrd has standing. On the other hand, if Byrd persuaded Reed to rent the car for Byrd because he knew the rental car company wouldn't rent to him given his criminal record, then it seems weird to see the car as effectively Byrd's and quite odd to say he has standing.
I suppose my instinct is coming from the idea that standing is about whether a relationship is substantial enough that the property is effectively your stuff. That's how I've long thought about the standing inquiry. Inherent in that is a sense of the relationship to the item being legitimate and proper. On one hand, a person who uses a car with permission of its prior user would normally seem to have that kind of proper relationship. On the other hand, a person who essentially procures use of property by fraud doesn't have it. So I have a vague sense that the issue shouldn't just be the formal issue of the contract or the formal issue of permission from the authorized driver. Maybe mens rea should have a role in there somewhere. Although I confess I'm not exactly sure how.
3) The Rule on the Books Versus in Practice. An interesting aspect of the case is that whatever rule the Court adopts may work pretty differently in practice than it looks to the Court on the books. Or perhaps to put it differently, I hope the Justices are thinking about how their rule will work. My sense is that rental car issues come up mostly on the side of the road when a driver has been pulled over and the police are trying to figure out whether they can search. Some legal rules will be ex ante search rules, in which the police can figure out the answers before they search. Other legal rules will be ex post search rules, in which the police can't figure out the answers before they search but may be able to use a lack of standing ex post to defeat a suppression motion.
4) Will the Court Restore "Standing" As A Separate Inquiry? My last thought is just about terminology. Back in 1978, in Rakas v. Illinois, the Supreme Court told everyone to stop referring to Fourth Amendment standing as a separate inquiry:
[T]his Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
Analyzed in these terms, the question is whether the challenged search and seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect. We are under no illusion that by dispensing with the rubric of standing used in Jones we have rendered any simpler the determination of whether the proponent of a motion to suppress is entitled to contest the legality of a search and seizure. But by frankly recognizing that this aspect of the analysis belongs more properly under the heading of substantive Fourth Amendment doctrine than under the heading of standing, we think the decision of this issue will rest on sounder logical footing.
Despite that passage, judges, practitioners, and academics still talk about standing. That's the case, I think, because the issue of whose rights are being violated is a conceptually distinct question from whether anyone at all has Fourth Amendment rights. As I blogged recently, both the text of the Fourth Amendment and the Katz test ultimately see those two issues as distinct. Further, it turns out that the "whose rights are being violated" issue resolves a ton of cases. In my 2015 article looking at how courts apply Katz, standing provided by far the most common way to resolve Katz issues.
The confusion Rakas flagged was that the "whose rights are being violated" question is different from Article III standing. The word "standing" can be confusing, Rakas figured, as some may hear it and think it means Article III standing and not the "whose rights are being violated" question. But Rakas is now 40 years old, and courts and practitioners and academics still find it useful to refer to "Fourth Amendment standing" as a distinct inquiry. That's even more the case after United States v. Jones bifurcated the search test into the Katz inquiry and the trespass inquiry: It no longer works even just doctrinally to treat the "whose rights" questions as just an application of the reasonable expectation of privacy test. So maybe the Court will return to using the standing terminology again.