The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Tuesday, the Supreme Court held argument in a particularly interesting Fourth Amendment case, Byrd v. United States, on rights to challenge searches of rental cars. I previewed Byrd here, and I wanted to offer some thoughts to the argument itself (transcript here, audio here).
(1) What's the Test? Unsurprisingly, the Justices were grappling with what kind of test to articulate for when a person has Fourth Amendment rights in a rental car. I hope the Court focuses on the fundamental textual and functional question of when a car is sufficiently that person's that he should have standing to challenge the search. The text of the Fourth Amendment gives peple rights in "their" effects, and the century-plus-old doctrine is that Fourth Amendment rights are personal and cannot be vicariously asserted. So the question should be identifying when the car is sufficently theirs such that they have rights in the car.
Justice Breyer seemed interested in a test that (if I understand the proposal correctly around page 28) hinged on whether use or posession of the car was a crime. This strikes me as problematic. I gather Breyer was running with Byrd's suggestion that this might be a way to read Rakas's footnote 12, as to why "[a] burglar plying his trade in a summer cabin during the off season" would not have Fourth Amendment rights in the home. Maybe the burglar had no rights in the cabin because itw as a crime to burglarize it. But if so, I don't think that's right. A burglar has no rights in the house he has burglarized because it's not his home, regardless of the state of the criminal law of burglary.
More broadly, relying on criminal law to say when a person has standing is really problematic. If you say that standing hinges on criminal law, legislatures will just change the criminal law to eliminate standing. This is the problem I explored recently in The Effect of Legislation on Fourth Amendment Protection: If any positive law has Fourth Amendment significance, positive law will become a proxy battleground for the Fourth Amenment. For example, if the test is that criminal use of a car eliminates standing, then the legislature will just make all speeding a crime instead of a violation. Then no driver has standing, even if they own the car. (And some jurisdictions already do this; because most people drive when they speed, most drivers are committing crimes in how they use their cars in those jurisdictions.) My sense is that legislatures are usually quite attentive to law enforcement's requests to change the traffic laws to help expand search and seizure powers. So this could be serious problem. And as noted above, thether the use of the car is a crime doesn't get to the issue of whether it's their car, so a crime-focused test doesn't seem right.
(2) The Workaround Problem. Whatever test the Justices articulate, a really big question to consider is how easily it will be for rental car companies to work around it. For example, can rental car companies give third-party consent to search? Let's say they rent a car to Joe, and Joe lends the car to Bob who is not on the contract. The police stop Bob and want to search the car, so they call the rental car company and ask for the company's consent to search the car. Does the rental car company have "common authority" to consent to the search of the car being used by Bob, who is not on the rental car contract and is using the car against the company's direction?
If it does, it's not clear how much it matters if Bob has standing to contest a search of the car. The rental car company's consent may be enough to allow at least some search of the car. The tricky issue would be how far the search could it extend. Yes, the cops could pop the trunk. But could they open the driver's luggage in the trunk? Maybe the rental car company can authorize a complete search. Alternatively, maybe the rental car company can consent to a search of the car but not the stuff that the unauthorized driver has put in it. It's hard to say how that issue will play out, but it's pretty important to the practical effect of a ruling for Byrd in this case.
(3) Justice Gorsuch and the Property View. Justice Gorsuch again repeatedly emphasized the property view of the Fourth Amendment. Exactly what he had in mind wasn't clear to me, though. Consider two very different standards he suggested in the argument.
At one point, Gorusch suggested that he was applying the Baude and Stern approach, even naming them as a possible standard (see the transcript page 24). This struck me as odd. Baude and Stern expressly reject the trespass-property view of the Fourth Amendment (see pages 1834-36 of their article). Instead, they favor an all-positive-law approach to the Fourth Amendment. They can correct me if I'm wrong, but it seems to me that Baude and Stern do not envision their proposal as an originalist standard that looks to the original public meaning of the text. Rather, they crafted their test from first principles, devising a a new nonoriginalist test that they see as attractive for a range of policy reasons.
True, Baude and Stern's new test draws at a very high level of generality from certain themes that relate to the historical Fourth Amendment (see pages 1837-41). But it goes far beyond that, it seems to me. It relies on policy concerns such as "liberal notions of political equality and ordered liberty" (p1846), the need for "clarity" (p1850) and "adaptability" (p1851), and the usefulness of "harness[ing] the capabilities of government institutions to engage in principled legal change" (p1852). If Justice Gorsuch is an originalist, as he says, I would be surprised if he favors the nonoriginalist Baude and Stern approach. (Granted, I understand Baude to have the very inclusive view that any view of the Constitution is originalist if the author says it is originalist, so maybe he can weigh in and certify it as originalist and thus make it so, at least under his theory. But it sure seems like a nonoriginalist approach to me.) [EDIT: I have crossed out my characterizaton of Baude's view of originalism as I don't want to mischaracterize it; suffice to say that it is a counterintuitively broad interpretation.]
At other points, Justice Gorsuch suggests that he would apply the rather fine points of the common law of property. That's particularly interesting given how long the Supreme Court has rejected that approach in Fourth Amendment law. I don't mean just in the Katz era. I mean in any era. As I detailed in my article, The Curious History of Fourth Amendment Searches, there has never been an era in which the Court equated Fourth Amendment law with the technicalities of property law.
An interesting example I discuss in the paper is McGuire v. United States, 273 U.S. 95 (1927). Agents lawfully entered McGuire's home with a warrant to seize liquor. Once inside, however, the agents decided to destroy most of the liquor rather than seize it pursuant to the warrant. McGuire moved to suppress the evidence based on the common law doctrine of trespass ab initio, by which improper conduct after a person has been admitted to a private place is deemed to have made the initial entry an unlawful trespass.
McGuire was decided around the same time as the originalist and textualist decisions in Carroll and Olmstead. So it's not like the Justices in the 1920s were inattentive or unaware of the originalist approach. But Justice Stone's opinion for the Court rather harshly rejected the effort to invoke common law trespass. Even if the officers had become civilly liable by exceeding the scope of the warrant, he wrote, the doctrine of trespass ab initio was merely "a fiction whose origin, history, and purpose do not justify its application" to the Fourth Amendment. Part of McGuire's reasoning may have been partially about the exclusionary rule. But McGuire is consistent with the broader pre-Katz rejection of common law property concepts in Fourth Amendment law.
Consider Justice Frankfurter writing for the court in Jones v. United States, 362 U.S. 257 (1960):
We are persuaded . . . that it is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical. Even in the area from which they derive, due consideration has led to the discarding of these distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as those between "lessee," "licensee," "invitee" and "guest," often only of gossamer strength, ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards.
Id. at 266. See also Minnesota v. Carter, 525 U.S. 83, 95 (1998) (Scalia, J., concurring) (suggesting that whether a person has Fourth Amendment rights in a house is based on whether they live there, not the legal status under property law).
Of course, that doesn't mean that a technical trespass approach is wrong, whether from an originalist perspective or any other approach. But it does mean that it would break new ground. As always, stay tuned.