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Neil Gorsuch and Samuel Alito Butt Heads Over the Fourth Amendment, Again

Gorsuch advances another property rights theory of the Fourth Amendment that Alito rejects.

C-SPANC-SPANA major split seems to be developing between conservative justices Neil Gorsuch and Samuel Alito over the issue of property rights and the Fourth Amendment.

The most recent evidence of this division came on January 9, when the U.S. Supreme Court heard oral arguments in Byrd v. United States. This case arose in 2014, when a woman named Natasha Reed rented a car and allowed her fiancé, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd is fighting to have that evidence thrown out as the fruits of an illegal search.

The question presented to the Supreme Court is this: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?"

During the oral arguments, Justice Neil Gorsuch observed that Byrd's lawyer, Robert Loeb, had offered a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title."

"We think the property interest here, the right that...Mr. Byrd would have had to bring a trespass action," Loeb replied, "demands a recognition of his right to invoke the Fourth Amendment."

In other words, Byrd had "possession" of the car under common law principles. If, while driving it, somebody else tried to break in and steal it from him, he would have a common law right "to bring a trespass action," as Loeb put it, against that would-be thief. In this case, the trespasser is law enforcement, which, absent probable cause, has no authority to search the trunk.

Justice Samuel Alito apparently did not like the sound of that. "The problem with going down this property route is that we go off in search of a type of case that almost never arose...at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never."

Loeb pushed back on Alito's characterization. "It's your right to bring trespass action against a stranger," he told Alito. "The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution."

A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed.

"The Constitution uses the word 'property' numerous times," Alito told Loeb, "but the word 'property' doesn't appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson's dictionary as 'goods or movables.'... Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"

"I think if the common law recognizes your [right]," Loeb replied, "then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right."

Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again in favor of the property rights theory during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government's side of the case.


According to Feigin, Byrd, "like other unauthorized drivers, simply has no connection to the car at all."

"Mr. Faigin, you keep saying that," Gorsuch said, "but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I think you'd agree, to exclude someone who's attempting to get in the car to hijack it, carjack it. You'd also have a right to throw out a hitchhiker who had overstayed his welcome....I think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car."

Feigin rejected that description of the government's position.

"Do you agree that— that Mr. Byrd could have excluded a carjacker?" Gorsuch asked.

"I think by virtue of simply being in the car, he probably could have fended off a carjacker and we wouldn't oppose his right to do so," Feigin answered.

"By virtue of his possession he would have a right to do so," Gorsuch corrected him. "And he would have a right to throw out a hitchhiker as well....So why not the government?"

To summarize: Gorsuch pushed a property rights theory of the Fourth Amendment that, if adopted by the Supreme Court, would cause the government to lose this case and plenty of others. Alito promptly spoke up in opposition to that theory. A little bit later, Gorsuch advanced the theory again in greater detail.

If that dynamic sounds familiar, it's because we've already seen it once before. In the November 2017 oral arguments in the warrantless cell phone records search case Carpenter v. United Staes, as I noted at the time, "Gorsuch proffered a property rights argument that might allow Carpenter to win the case, and Alito came out swinging hard against it."

I suspect that Gorsuch and Alito's battles over this issue are just getting started.

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  • ||

    It again makes one wonder what legal philosophy the Bush Administration was operating under when they made their picks. I know predicting judicial philosophy is no easy task (Souter), but still...

  • Brett Bellmore||

    I tend to think Bush got what he really wanted when he nominated Souter. It's just that he wasn't honest about what he'd really wanted.

  • loveconstitution1789||

    Roberts is a RINO. Alito tends to be too.

    These guys are not small limited government conservatives.

    Gorsuch is a great justice so far. He really needs a younger ally than Thomas. Luckily, RBG will croak soon and Kennedy had better retire soon, so Trump can get a originalist justice in there again.

  • ||

    can get a originalist justice in there again.

    I really should start considering myself a one issue voter. Because I'll pretty much vote for anyone who has the best likelihood of steering the courts in this direction. Above all else in this country, legal precedence ensures/revokes freedom. And although Originalism does not directly equate to freedom, it's a helluva a lot closer to it than the alternative.

  • loveconstitution1789||

    Funny how the Judicial Branch was clearly the weakest of the three branches of government starting out and now really can influence American lives.

    Gay marriage is an example of the courts setting law rather than just striking down Congressional laws or affirming the law's constitutionality.

    Even women knew that they needed a Constitutional Amendment to be equal partners in this Republic because white male landowners started as the power base.

  • Rev. Arthur L. Kirkland||

    I enjoy it when right-wing "libertarians" rant about militant gays. It demonstrates their bigotry and authoritarianism vividly and simultaneously.

  • Rebel Scum||

    militant gays

    Like the ones that use the governments guns to force you to labor for them?

  • ||

    There is a difference Rev between Marriage and Public Accommodation laws. And you know that too.

  • Tionico||

    there is also a difference between sodomites who merely desire to live and act as they wish, and others of the same class that will and do enlist government guns to enslave others into supporting, enabling, promoting their (the sodomites) personal preferences. The same baker who would elect to NOT endorse a pair of lesbians in their ceremony to celebrate and promote their sexual "union"would have no issue making a special cake to celebrate the birthday of a child of either one of the same lesbian pair (provided the required theme on the cake is not blatantly lesbian in nature). You fail to acknowledge the clear distinctioin between the PERSON desiring the service and the message demanded of the specific desired service.
    Desiring to sit at an FW Woolworth lunch counter in Alabama in the 1950's while being black is not wrong and mustn't be denied. The same man desiring to sit in the same place whilst falling down drunk and loudly swearing up a storm, provoking a fight, IS wrong, and SHOULD be denied. Same man, different values/behaviour

  • Kevin47||

    "I enjoy it when right-wing "libertarians" rant about militant gays."

    His comments didn't mention the militancy, over even actions of, gays at all.

    The militant gays are the ones who want to force you to make them things, under threat of law. That is what authoritarianism actually is.

  • DJK||

    Don't bother. The good Reverend loves to put words in mouths and make specious arguments. It looks like the worst commenters from Volokh have made their way to the main pages.

  • FlameCCT||

    RAK = Royal Arse Kisser

  • Sammi||

    Rev. Arthur L. Kirkland|2.1.18 @ 10:50AM|#

    I enjoy it when right-wing "libertarians"

    "I don't know how libertarians work!!!"

    rant about militant gays.

    "And I can't read either!!!"

  • Last of the Shitlords||

    "I enjoy it when right-wing "libertarians" rant about militant gays"

    That didn't happen here. Maybe you just heard the voices in your head again. Libertarians don't want marriage licensed by the government at all. Definitely not by the federal government.

  • Ben of Houston||

    The biggest issue is that this was handed down by the courts, the least democratic of our governing bodies, by the method of redefining something that was clearly defined when the laws were initially passed.

    The courts should not make the laws. That's not their place. These changes should be made by Congress.

  • gimmedatribeye||

    Being forced to decorate a cake for a gay wedding.

    Who's the authoritarian again, Mr. Self-Righteous, Pontificating, Do-Gooder Windbag?

    Here's an idea...let people to their beliefs and leave them alone.

    Someone's bigotry or personal opinions about others are none of your business.

  • MatthewSlyfield||

    "Funny how the Judicial Branch was clearly the weakest of the three branches of government starting out "

    That view died with the very first Supreme Court appellate decision.

  • Tony||

    The 14th amendment is law.

  • Fuck you, Shikha (Nunya)||

    Thanks for pointing that out as it was entirely missed from previous thought. No one has any such idea.

  • Teddy Pump||

    Actually, since there is no right to marriage of any kind in the Constitution, the 14th Amendment does not apply & the homo marriage case should not even have been brought before SCOTUS!...Marriage is a power of the states & they can define it as they wish according to their own state constitutions & laws, which is what they did & it should've stood that way!

  • marshaul||

    Actually, since there is no right to marriage of any kind in the Constitution, the 14th Amendment does not apply & the homo marriage case should not even have been brought before SCOTUS!"

    Holy fuck you are stupid. The Constitution is not the source of, nor does it exhaustively enumerate rights, you vacuous imbecile.

    "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." - The 9th Amednment

    Feed yourself into a woodchipper, post haste, you fucking chode.

  • Tionico||

    except that the rights/powers of FedGov are clearly named and described, and THEN that pesky Tenth comes along and says to FedGov: you ONLY get those, everything else stays with the People or the States. Thus, since marriage is not specifically assigned FedGov, it is prohibited them, and remains with the People and/or States. The Ninth, as you cited, is addressing the rights that accrue to THE PEOPLE.

    Look like YOO de won headdid fer dat chipper........

  • gimmedatribeye||

    Damn, you served him!

  • ragnar_rahl||

    "

    except that the rights/powers of FedGov are clearly named and described, and THEN that pesky Tenth comes along and says to FedGov: you ONLY get those, everything else stays with the People or the States. Thus, since marriage is not specifically assigned FedGov, it is prohibited them, and remains with the People and/or States.
    "
    It does not, however, specify WHICH of those it remains with.

    The Supreme Court decided that, w/r/t determining the sex of one's spouse, the marriage power was reserved to the people rather than the states.

    They did so because the 14th amendment grants the federal government the duty, and therefore the necessary and proper power, to enforce equal protection of the laws.

    Granted, this argument isn't really taken to it's logical conclusion, since single people and polygamists are still discriminated against-- the only actual equal protection compatible solution is to ban state recognition of marriage, i.e. state that marriage is a right entirely reserved to the people rather than the states. But progress toward freedom is still good.

  • Gary T||

    True, UNLESS, a state's law violates a fundamental federal right guaranteed by the Const.
    If the Constitution prohibits discrimination against sexual orientation, then a state cannot enact discrimination against them.

  • retiredfire||

    The 14th amendment was written as a "fuck you" to the Confederates and was never intended to be used, as it has, to turn the Constitution on its head.
    Its repeal, and the overturning of every case decided on its recent interpretations, would bring to an end many of the contentious issues that are driven by court ukase.

  • BigT||

    Repeal the 14th??

    That might, just might, be met with outrageous outrage.

  • ragnar_rahl||

    Legalizing gay marriage roughly corresponds to saying "fuck you" to Confederates, or their descendants at least.

  • Teddy Pump||

    Actually, since there is no right to marriage of any kind in the Constitution, the 14th Amendment does not apply & the homo marriage case should not even have been brought before SCOTUS!...Marriage is a power of the states & they can define it as they wish according to their own state constitutions & laws, which is what they did & it should've stood that way!

  • Johnimo||

    Neither the States or the Federal Government has any legitimate power over marriage between individuals. It was originally a church ceremony that government came to claim an interest in, "for the good of the children" of course.

    I'm pretty certain we can all figure out how to be married and divorced without any help from government.

    "The Congress and the States shall make no law regarding marriage." Whoa, Dudes and Dudettes, is that radical or what? If you're so worried about what might happen, get an attorney and draw up a contract.

  • retiredfire||

    Written by someone, who has never seen a marriage or contract where one party's main position was FYTW, with whatever the contract or marriage laws said.
    Or do you advocate private ability to force compliance when abject refusal to cooperate is encountered?

  • ragnar_rahl||

    I don't understand what you're arguing. The courts enforce private contracts all the time. It is not necessary in order to do this, that the private contract be given a state-defined wording, special tax rules just for its participants, a state-defined limit of number and sex of participants, etc.

  • NebulousFocus||

    Yep. Congress is unable to accomplish anything, so everything is being litigated and decide by SCOTUS. A SCOTUS populated by RBG's would destroy any and all limits on government, at which point this website would be pointless.

  • Brett Bellmore||

    It's an old joke: "The Constitution isn't perfect, sure, but it's better than what we have now."

    Originalists are trying to bring it back, or at the least keep us from losing any more of it.

  • loveconstitution1789||

    Lefties see this trend and are screaming about it day and night.

  • Johnimo||

    And THAT is the reason why, despite his many, HUGE, looming deficiencies, we can all smile a little bit, knowing that Trump prevailed over the wicked witch of state.

  • ragnar_rahl||

    Trump is the wicked witch of state.

    That he appoints justices that are not the wicked witch of state is probably mostly because he doesn't actually care what sort of justices he appoints and hence is willing to purchase Congressional loyalty at that price. I can guarantee he does not share the position of Gorsuch on the 4th amendment, with the possible exception of when he is speaking to an audience that does.

  • mpercy||

    I was a one-issue voter this last time. I opted top vote for Trump instead of my usual (30 years) symbolic L vote. The fact that Gary Johnson agreed with 73% of what Bernie said, and Bill Weld was on the same anti-gun tack that Hillary Clinton was on made that decision easier. So far, Gorsuch has warranted having to see all the rest of Trump's antics.

    Well, that, and seeing Clinton, Nancy Pelosi, et al., lose their minds...

  • Eric||

    "Roberts is a RINO. Alito tends to be too."

    Why don't you just admit that YOU are the prodigal Republican instead of hiding behind a libertarian mask?

  • GroundTruth||

    prodigal : spending money or resources freely and recklessly; wastefully extravagant

    Is that what you meant?

  • marshaul||

    prodigal : spending money or resources freely and recklessly; wastefully extravagant

    So basically, you had to use a dictionary thanks to your absolute ignorance of the word, and on the basis of that ignorance you presume to impugn another's usage. Got it.

    Meanwhile, since we're citing dictionaries, nitwit:

    "• (also prodigal son or daughter) a person who leaves home and behaves recklessly, but later makes a repentant return. [with biblical allusion to the parable in Luke 15:11–32.]"

  • Last of the Shitlords||

    Why are you defending Eric? Are you a progressive?

  • loveconstitution1789||

    Why don't you admit that YOU are not a Libertarian and have no idea how to discuss the failures of Republicans and your team, the lefties.

  • Zeb||

    These guys are not small limited government conservatives.

    Still not sure why you think that makes them RINOs. That describes the party establishment pretty well. Probably more accurate to say that the actual supporters of small government are the ones who are not the real Republicans. Republicans have never really been a small government party. Just the party of slightly smaller government (except the military and police).

  • Unlabelable MJGreen||

    I think the first condition of being a RINO is to claim to be a Republican, which justices tend not to do.

  • Kivlor||

    I think you get this 100% right Zeb. Although "Conservatives" like to refer to people like Roberts as RINOs, the reality is that they are the actual Republican Party. If the Conservatives were the "True Republicans" they would be the "Establishment" and the big government bunch would be the insurrectionists within the party.

  • loveconstitution1789||

    Kivlor, there is great latitude in who is Republican.

    Coming from a very Republican household, all I can tell you is there are clear differences in Republican factions and RINOs tend to side with Democrats. They tend to be neo-cons and some were even Democrats before "switching".

    Another Republican faction are the religious nuts.

  • Eric||

    Would it be correct then to refer to you as a LINO?

  • Johnimo||

    (No.)

  • Last of the Shitlords||

    Eric would it be correct to refer to you as a red diaper doper baby traitor?

  • loveconstitution1789||

    The Republican platform still lists small limited government and fiscal responsibility as core principles.
    GOP Platform
    Roberts is clearly not on board with those two thing based on his opinion for ObamaCare.

    I get that platforms are not always followed but there is a clear difference between Rand Paul the Republican and John Roberts the Republican.

    Many of us on here like Rand Paul but he is a Republican. He is not currently a Libertarian political even though many of his positions coincide with Libertarianism.

    RINOs tend to side with lefty Democrats on more than just spending. The other clue is that RINOs do lefty things but are from very conservative districts which makes it impossible for Democrats to get elected. The RINOs know this and run as Republican. Obviously Roberts is a justice but he acted like a conservative and is not.

  • Chipper Morning Baculum||

    GTFO. Republicans do not support small government. You can't go by what people say. You have to go by their actions.

  • Johnimo||

    Correct, but what he said was, "The Republican platform still lists small limited government and fiscal responsibility as core principles," and then he legitimately point out the differences between Rand Paul and John Roberts.

  • UVaGrad||

    But the question presented in the Obamacare case wasn't whether Obamacare was consistent with principles of small government and fiscal responsibility. It was whether Obamacare was a valid exercise of Congress's powers. There are plenty of things that are bad as a policy matter that are nonetheless constitutional.

  • retiredfire||

    Unfortunately, the subject of Congressional powers, specifically the "commerce clause" argument, was rejected by the SC, where Roberts sided with the law, but ignored the lack of severability within it, was over the subject of the mandate's penalty being what it was describes as - a penalty - or a tax, which was within the power of Congress to lay.
    He gave the government a fourth strike, which they hit out of his ballpark.
    His weak argument that it was up to the voters to overturn what Congress had done, ignored the massive defeats the demoncraps suffered the next time elections were held.
    IMHO, the 2012 election was one of massive demoncrap voter fraud, just to be able to keep 0blama and a demoncrap Senate there to stop the law from being overturned.

  • BigT||

    "the 2012 election was one of massive demoncrap voter fraud"

    Not massive, and not the key factor. The MSM were all in for Chocolate Jeebus, and of course to be against him in any way classified you as a racist. It was a full deck of race cards, and the black electorate responded lustily.

  • Gary T||

    Roberts and Alito are stealth Souters.
    They cloak themselves in Republican/Conservative garb but they are all for statist supremacy.

  • DiegoF||

    Everyone seems to be going on about how incredibly healthy RBG is. I'm skeptical that she won't survive this term.

    Also: Kennedy's twin obsessions, the death penalty and gay rights (he has written, I believe, every opinion on both those topics--always nakedly activist--as long as he's been on the bench), could be in danger if Trump replaces him with an originalist--as his history thus far suggests he will. I think he'd much rather retire under a Republican who would nominate a "moderate," but I wouldn't be surprised if he tries to roll the dice and wait out the era of Trump and a Senate majority (which will only deepen next year).

  • Teddy Pump||

    Monkey-Face Ginsburg says she in good shape & not going to step down any time soon!

  • Agammamon||

    My lord - can you imagine the uproar if 2 more slots opened up during Trump's term?

  • Johnimo||

    That would be fun, huh …. and interesting. The left might suffer apoplectic seizures. LOL

  • Agammamon||

    My lord - can you imagine the uproar if 2 more slots opened up during Trump's term?

  • Johnimo||

    That would be fun, huh …. and interesting. The left might suffer apoplectic seizures. LOL

  • Derp-o-Matic 6000||

    My understanding is that GWB wanted justices who would be willing to uphold his newly installed security state. I could be wrong but that had always been my read.

  • Imissbuckley||

    "It again makes one wonder what legal philosophy the Bush Administration was operating under when they made their picks."

    The same legal philosophy they practiced while in power. Occasional observance to the Constitution when it doesn't get in the way in areas where "conservatives" typically want robust government intervention. The great thing about Gorsuch is that he seems to go against that strand of Big Government Conservatism exemplified by the previous Republican Administrations and most of his "conservative" colleagues on the court. He's even been slightly better on this issue (the 4th Amendment) than his one principled conservative colleague (Thomas). Cheers to the Federalist Society! And cheers to Trump for listening to them!

  • Johnimo||

    Yes! We can forgive Trump for one or two of his many, serious flaws. Gorsuch is his atonement.

  • MoreFreedom||

    "It again makes one wonder what legal philosophy the Bush Administration was operating under ..."

    Bush is a big government RINO. After all, he appointed Democrat Douglas Shulman to head the IRS, under which the abuse of Tea Party groups started. Bush also said of Trump's inauguration speech that it was "some weird s**t". Bush also significantly increased regulations. Thus, his "legal philosophy" was to appoint judges that expand government power at individuals' expense, but were supposedly conservatives (which would be conservative in the sense of not changing the status quo to one of less government).

  • Fist of Etiquette||

    "By virtue of his possession he would have a right to do so," Gorsuch corrected him. "And he would have a right to throw out a hitchhiker as well....So why not the government?"

    If only the court used this level of reasoning as a matter of course.

  • Rhywun||

    I'm not even a simple country lawyer and this seems obvious to me.

  • Social Justice is neither||

    Have you not read the FYTW clause in the social contract because the answer is right there plain as day?

  • croaker||

    Any government official that uses FYTW should be subject to an immediate woodchippering.

  • Johnimo||

    Should we freeze them before "woodchippering" them? I really like that woodchippering scene in "Fargo."

  • loveconstitution1789||

    Against the government, any claim by a person with lawful possession of property should be good enough to prevent a search by government agents.

    The driver had lawful possession as the vehicles was not stolen but the renter violated the terms of the contract.

    As someone who rents cars a lot, I can tell you that a rental car company would love another person not listed on the contract to protect their assets from harm. Rental car companies often have a disclaimer that criminal activity would violate the terms of their contract.

    The government is looking for a work around to searches and that should be rejected out of hand.

  • Kevin47||

    Yeah, unless they made an effort to prosecute him for possession of a stolen vehicle, their argument is nonsensical.

  • WoodChipperBob||

    And of course, even if they were to arrest him on the maybe, sorta, possible cause (that's a legal term, right?) of possession of a stolen car, I don't see a valid reason to search the trunk - it's not like you're going to find evidence in there of his permission to use the car or lack thereof.

    And I have a hypothetical that I wish that Gorsuch had added, that would have eliminated the issue of the terms of the contract. "What if, instead of a traffic violation being the cause of the contact with Boyd, what if instead he had been parked in a public parking lot and the officer saw someone walk up to Boyd in the passenger seat of the car, get some cash from Boyd and give him a baggie."

  • Rebel Scum||

    Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"

    The originalist interpretation is the only valid interpretation.

    I suspect that Gorsuch and Alito's battles over this issue are just getting started.

    So far it's looking like we really need more Gorsuches on SCOTUS.

  • Anomalous||

    Clone him if necessary.

  • Marcus Aurelius||

    I'd donate Bitcoin to reason's fundraiser for that.

  • GroundTruth||

    or clone Thomas

    or maybe Thomas and Gorsuch could have a kid?

  • Johnimo||

    Thanks for clearing up my confusion about what might the plural of Gorsuch. I thought it might be Gorsuchandsuch.

  • ThanksForTheFish||

    ".I think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car."

    Mike drop.

    And that's exactly what the government wants. That's what the reasonable officer standard is and why it exists, instead of using a reasonable person standard.

  • ipsquire||

    Alito will finally get this when the no-warrant-having cops push his cleaning lady away from the door when they come to search his place for liquor he bought out of state.

  • Mickey Rat||

    I think Alito's parsing "goods and effects" as excluding property in general is absurd. On the other hand, I am sceptical of extending property rights protections to a person who had no right given by the owner to be operating the property even with the renter's verbal permission.

  • Colossal Douchebag||

    This is where I come out too.

    Was the authorized driver, Reed, sitting in the car as a passenger when the stop occurred, and able to directly confirm to the officer that she had allowed Bryd/Byrd to drive?

    If she was there and voiced her permission, the officer has no cause and no right.

    But if she wasn't there, and Bryd/Byrd only claimed he had permission, then the officer might have cause to believe a crime was being committed.

  • Mickey Rat||

    That is the issue, does not being an authorized operator constitute a reasonable basis for suspicion that simply would not attach to an explicitly authorised driver?

  • Agammamon||

    Having cause to believe a crime is being committed is not the same thing as 'probable cause'. There's a reasonableness requirement in the latter.

    Otherwise any cop could stop any car at anytime and search it legally if someone other than the registered owner was driving.

  • MikeP2||

    The driver should be presumed to have rights regardless. If he did not have explicit permission to drive the rental vehicle, it's a contractual issue, not one the LEO should have one iota of care about.

  • Colossal Douchebag||

    How far does that go? This may be settled law; I really don't know.

    Officer stops driver, driver produces rental contract and license, but driver is not listed on contract, shows no similarity in name, and can offer no evidence he has any permission at all-- is that cause to believe the car may be stolen?

    Would it be cause for a car that isn't a rental? "It's my friend's car, she let me borrow it." This must have been tested legally before.

  • Agammamon||

    He doesn't have to offer evidence of his innocence - the cop has to have evidence of criminality.

    And since its common practice to lend other people vehicles - yes, even rental cars - its not 'reasonable' to assume that someone in a rental car other than the renter is committing a crime.

  • retiredfire||

    I would think that a police officer would have to have some evidence that the car had been reported stolen, before concluding that the driver didn't have the right of possession, if not the legal owner or listed renter.
    OIW, when the registration was checked, and it didn't come back as stolen, the officer would have to respect the driver's 4th amendment rights.
    I didn't know this argument, of an unauthorized driver of a rental car not having the rights of possession, has been used before, and survived any level of judicial review.

  • Scarecrow Repair & Chippering||

    And how could the police even tell before they stopped the car and pawed through the glove compartment for the rental contract? Do rental agencies generally tell the police who is authorized to drive their cars, such that police can tell from a quick computer check?

  • Colossal Douchebag||

    Authorized drivers are always listed by name on the rental contract, and the contract itself serves as proof of registration, which the officer would request at any routine stop.

    So in the case of a rental, the officer knows right out of the box whether the driver is *authorized*-- but not necessarily if he/she had (unauthorized) permission to drive by an authorized driver.

    And as MikeP2 points out, whether you're *authorized* is really a contractual, not criminal, matter.

    But, if there's no one authorized around to vouch for your claim of even having permission, is there then cause to suspect? For an owned (non-rental) vehicle, I'm guessing that doesn't cut it at all. But for a rental.... meh?

  • Scarecrow Repair & Chippering||

    But why did he stop the car before he knew the driver was not authorized? That's my question -- is everyone pretending to not see that?

  • Colossal Douchebag||

    "minor traffic infraction"

    Driving while texting
    Driving while singing badly
    Driving while black
    Driving with misspelled name

  • Johnimo||

    Driving while looking funny …
    Looking Unusual …
    Looking Guilty …
    Looking Strange …
    Looking Out-of-Place …
    Looking Guilty … (big time suspiciousness)

    and …. a general sense of aimlessness … all folks who are guilty until proven otherwise.

  • gaoxiaen||

    Ugly in a No Ugly zone.

  • mpercy||

    Driving while...FYTW

  • retiredfire||

    "But for a rental.... meh?"
    Rental cars get reported as stolen, just like privately owned ones.
    Absent the officer having the registration coming back as stolen, he should have to respect the driver as having legal, if not contractual, possession.

  • RogerNorthup||

    Gorsuch spoke of fending off a hijacker, but instead of a forced entry, Bryd simply told a stranger that he could not open the glove box or even sit in the front seat of the car.

    I believe the courts would say that he had that right.

    Which would mean, absent probably cause, he had the same rights if we replaced the word "stranger" with "law enforcement".

    Alito can play Devil's Advocate all he wants to help galvanize the case, as long as he eventually understands he works for the Constitution, not the devil.

  • RogerNorthup||

    *probable

  • Paloma||

    I hope Gorsuch can help tighten up the definition of probable cause. Right now it seems to police it's "possible cause".

  • gaoxiaen||

    Or a hunch.

  • gaoxiaen||

    Or a whim.

  • chipper me timbers||

    "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?"

    How could anyone think otherwise? Do his other constitutional and civil rights disappear too?

  • DJK||

    SCOTUS has done a pretty good job of eroding the 4th on highways already.

  • Paloma||

    I hope Gorsuch and perhaps whoever takes Ginsburg's place can start to reverse this disturbing trend. Certainly Trump has no problem eroding the Fourth Amendment even further. I'm a little skeptical that his next nomination will be an originalist.

  • Johnimo||

    You may be right in you skepticism, but Trump knows he needs the originalists votes in the next election, and he'll likely choose (accept a recommendation for) another constitutionalist. Admittedly, it'll be hard to find another Gorsuch among the candidates. We got lucky. Trump's good about 40% of the time … not bad odds.

  • Last of the Shitlords||

    Better than most of the alternative republicans, and much better than Hillary at zero percent.

  • gaoxiaen||

    Napolitano or GTFO.

  • vek||

    Can you imagine the opinions written by him???

    What if the constitution was written to restrict government rights? What if the plaintiff had his rights violated anyway? What if the prosecuting attorney violated the plaintiffs constitutional rights on purpose?

    Etc

  • MatthewSlyfield||

    "How could anyone think otherwise?"

    Because they work for the government and the government and it's employees generally hates the very notion of privacy.

    "Do his other constitutional and civil rights disappear too?"

    The government would love for the answer to that question to be yes.

  • Jerryskids||

    "The problem with going down this property route is that we go off in search of a type of case that almost never arose...at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never."

    I'm pretty sure there were zero 18th-century cases involving police officers searching automobiles, too, so the whole idea that our Founding Fathers meant to include automobiles as places the law needed a warrant to search is ridiculous. And the "crime" of decapitating someone with an electric chainsaw? How could that have been meant to be included in statutes against murder when electric chainsaws didn't even exist back then?

  • Paloma||

    So the owner might object to those Writs of Assistance, but the housemaid had no case?

  • retiredfire||

    Pretty sure the Founding Fathers were aware of the existence of horse-drawn buggies and would have extended the protections of the 4th to those. Not unreasonable to extrapolate that to horseless carriages.

  • gaoxiaen||

    The FF probably dreamed about the Stoner 63.

  • MikeP2||

    We've tolerated endless erosion of basic freedom in the US, and for the first time in my lifespan, there is clear evidence that this administration has stopped that erosion, and begun to push back. It's not all good, it's not perfect, but the shift is inarguable.

    President Donald Trump, the most libertarian president in a century.

  • BYODB||

    Even when Trump was running for office most of the commentariat explicitly stated that the only good thing likely to come out of the Trump era was his SC pick and possibly some deregulation. Hell, this was even echoed in several conservative rags I read from time to time.

    It seems that we were all right after all.

  • Paloma||

    I actually liked the Secretary of Education Betsy Devos, if nothing else for her pushback on Title IX.

  • Johnimo||

    Amen!

  • mpercy||

    Sent this to relative before election:

    re: dictator...we have one now and GOP in Congress will do nothing simply because of the color of his skin. If HRC wins, they will do nothing because of her sex, and she will continue in the same vein as Obama, and by her own admission will appoint SC Justices who will gut 2nd Amendment.

    Let's say Trump wins. GOP Congress, who for the most part hate him, will have no qualms about cutting him off at the knees--he's a rich white man. At least we can be pretty sure abut his SC appointments and secure in the knowledge that the rest of the government is not about to let him go off the deep end.

    The point is that they GOP establishment hates him because they are the establishment (similar to Cruz only far more so). Dems hate him because they are Dems.

    You know I've been a straight L voter for 30 years, but Johnson sounds more and more like Bernie, and Weld agrees with Hillary on gun control; and the L party plank on illegal immigrants is pissing me off.

    Of course I won't vote for Hillary or Stein. So I can vote L again, for two people I have strong misgivings about and whose party-line I *strongly* disagree with, or I can vote for Trump, someone I have strong misgivings about. Or I can stay home.

    I'm struggling, I gotta tell you. I KNOW KNOW KNOW Hillary will be a disaster and will screw up SCOTUS for a generation. Under Hillary I fear a 2nd amemndment solution will be required. Compared to Trump...

  • Gaear Grimsrud||

    If only he picked attorneys general like he picks judges and department heads I would agree.

  • gaoxiaen||

    Trudat. Shitcan Sessions and I might even vote for the Cheetoh-headed rascal.

  • Half-Virtue, Half-Vice||

    Supreme Court precedents don't change shit on the streets. That's what really bothers me. Knowing your rights is far inferior to cops doing whatever they want. If a cop demands you open your trunk and you keep saying know, you are just going to be arrested.

  • MikeP2||

    Yup.

    Don't drive dirty, don't dress dirty, don't drive with an angry woman, keep the car in working order, leave off the rim bling and tinted windows. Give every impression to the officer that you are someone of substance who can make his life difficult. It's not the color of your skin, it's the impression of 'unknown hassle or career threat'.

    Because when you are stopped, you are completely at their mercy. They will search what they want, treat you the way they want, and then work with the DA to concoct whatever story they need to, to justify their actions.

    Hidden dashboard cams are a good idea also, front and rear facing.

  • DiegoF||

    I remember the first time I drove in NYC; the first car I saw when I came back here was a beater that had two bumper stickers: a Puerto Rican flag; and a "Thank you for pot smoking" weed leaf. I felt like cutting out the state agent and doing the beatdown myself.

  • loveconstitution1789||

    Everyone that I know knows that I never give permission to search any property that I am in possession of.

    Any cop says that I allowed a search could have multiple witnesses testifying otherwise.

    But yeah, video is best.

  • croaker||

    You say that to a cop at all you'll get arrested. Just ask that nurse in Salt Lake City.

  • MikeP2||

    yeh....and that cop KNEW he was being filmed.

  • BYODB||

    The best scenario is to make sure the cop doesn't know they're being filmed. If they know, they might just 'accidentally' destroy the device and the recording. It's best to make sure beforehand that you're not actually breaking the law by filming them, too, which is pretty absurd.

  • Finrod||

    Personally, I want an extra-rugged camera that automatically uploads its video via cell connection. Let them attack and try to break the camera-- the video will still be there.

  • Last of the Shitlords||

    She should have summoned six security guards and a couple of burly orderlies to help get that cop under control. Then have the orderlies hold him down while they shot his ass up with enough thorazine to leave him a drooling catatonic mass for his 72 hour 'mental health evaluation'. For the officer's own safety of course.

  • seahorsedan||

    I can testify to that: "you are just going to be arrested" and add then your car will undergo a thorough "safety examination and be towed away and stored until you are strip searched and placed in a holding cell for at least until the impound yard closes. Believe me the smug gratification you get for being released with or without an apology is hardly worth the aggravation. Personally, in this case I suspect the "traffic stop" was merely an attempt to make a search and to circumvent the 4th amendment. So for him it may have been worth making the argument. Ironic! I advocate mandatory universal use of body cameras. It's not 18th-century America. The system does have a mechanism to improve upon itself.

  • newlife3.0||

    ^This

  • newlife3.0||

    Which was to HV-HV and Mike P2.

  • PaulTheBeav||

    Hopefully Alito retires and Trump appoints someone else more like Gorsuch.

  • Marcus Aurelius||

    MechaGorsuch?

  • loveconstitution1789||

    Trump will get his shot with Kennedy retiring soon and RBG dying soon.

  • BYODB||

    Don't underestimate the other justices holding on just long enough to try and see Trump leave office.

  • JP88||

    100% why RBG is doing. She said if Trump wins, she would move to Canada. I honestly think that is grounds for her to be asked to recuse herself on any decision involving the Trump administration/policy.

  • gaoxiaen||

    I hope that he dies. More cost-effective.

  • newlife3.0||

    I hope they both kick the bucket. Quickly.

  • FlameCCT||

    IMHO it appears that the Justices may be playing against each other to highlight issues. IOW real debate on the court that may or may not have played out prior to the open hearings.

  • some guy||

    I know it's OBE at this point, but I'd still like someone to explain where it says in the Constitution that the Federal government can lock people up for simply possessing a specific chemical or garment.

  • DiegoF||

    If you put a garment of both wool and linen upon you, you can be put to death. Thus says the Constitution, if I'm not mistaken.

  • croaker||

    Leviticus is not the Constitution.

  • WoodChipperBob||

    That's crazy talk. It might not be in *your* copy, but it's in *their* copy.

  • croaker||

    Were either of these clowns on the court for Kelo?

  • Imissbuckley||

    No.

    "William Rehnquist * John P. Stevens · Sandra Day O'Connor
    Antonin Scalia · Anthony Kennedy
    David Souter · Clarence Thomas
    Ruth Bader Ginsburg · Stephen Breyer"

  • ranrod||

    About Your 4th Amendment Rights, Video and Fact Sheet by Attn. KrisAnne Hall
    Reasonable vs. Unreasonable Searches & Seizures the 5 Must Have Elements of a Reasonable Search
    The main point is that we are not free from ALL searches and seizures, only unlawful ones. ALL FIVE of the following elements are present for that search:
    1. A Proper Warrant: The search and/or seizure is illegal if there is no warrant.
    2. Based Upon Probable Cause: There must be probable cause that a law has been broken or violated
    3. Supported By An Oath Before A Common Law Court: The warrant must have been issued by a common law court.
    4. Particularly Describing The Place To Be Searched: If there is no description then they can search anything. No limits. This is why you never consent (see below)
    5. The Persons Or Things To Be Seized: Again same here. If there is no description or if you give consent then all bets are off. They can sieze anything. Never give consent.

  • ranrod||

    NEVER Give Permission for a Search
    EVEN IF there is a warrant, you are not required to consent to any search. If there is a warrant and you consent then the government has your permission to search all property, even those not listed in the warrant. If you are shown a warrant, you should say, "I see your warrant, and you will search based upon that limited warrant, but you do not have my permission to search or seize any item."
    IF there is no warrant, NEVER GIVE PERMISSION! It never hurts to repeat the words, "you do not have my permission to search."
    http://krisannehall.com/4th-amendment-rights/

  • ranrod||

    If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  • seahorsedan||

    Where does the 4th. amendment fit into your anarchist rant? God made man ant Colt made us equal? I am pro the 4th in all 50 states. Just sayin'.

  • m.EK||

    It appears Jefferson was spot on. The Oath of Office is the key. It is a legal and binding contract to honor the Constitution AS WRITTEN! To violate one's Oath is a crime.
    Anarchy simply means "no rulers". The idea of the 3 competing branches with the Oath as the linchpin and the first 10 Amendments are what the "officials" can NOT legislate, decree, or "rule" on has been lost since the very beginning. Still on the books however, just lost in consciousness.

  • Enemy of the State||

    Justice Gorsuch -kick ass & take names. Been untold decades when property rights had a staunch defender at SCOTUS...

  • Johnimo||

    Pray for luck, and one more such angel from libertarian heaven.

  • Kay L||

    Doesn't this hinge on whether it is actually illegal to drive someone else's rental car?

    Allowing someone to drive who is not on your contract is a breach of contract which would be a civil case, not a criminal case. A cop pulling you over shouldn't have any more right to search the car than if you were driving a car owned by your friend with that's friend's permission.

    It seems to me that the government always wants to find more ways to intrude on individuals' rights rather than err on the side of freedom.

  • Malvolio||

    Doesn't it seem wrong that the appellant's rights are reduced because of an agreement between two other people? An agreement that the appellant never saw and has no access to.

    Imagine twin brothers, each of whom borrows his girlfriend's rented cars. One girlfriend has listed the boyfriend's name on the rental agreement, the other hasn't. Why should one brother have a privacy interest and the other not?

    If the driver had stolen or otherwise misappropriated the car, that would be one thing, but here, the appellant is innocent (except for, you know, the drugs and the weapons).

  • seahorsedan||

    I have to go with Gorsuch's proffered property rights argument in general but ask the question: What if the cop found the body of Natasha Reed in the trunk? At some point the officer's discretion is, or should be part of their training. I figure sometimes the demeanor of the citizen could be taken into account if it is recorded with body cameras and dashboard cameras. Like Justice Samuel Alito points out: When would that ever have happened in 18th-century America? Personally, in this case I suspect the "traffic stop" was mealy an attempt to call for a search to circumvent the 4th amendment. I advocate mandatory universal use of body cameras. It's not 18th-century America.

  • Ralph Fucetola JD||

    Murray Rothbard always told us that "all rights are property rights." Good for Gorsuch.

  • Brian Mcfarlane||

    Disappointed in Alito's view on this. I agree with Gorsuch. I am a little surprised that Alito takes the stance that he does. It seems to me that if you have "effects", maybe a briefcase, I can't see how you have an obligation to prove that the briefcase is yours to the cop/government in order to have a right not to have it searched, considering there is no probably cause. If I loan my car to somebody how is it they do not have 4th Amendment rights? I would say the only way they don't is if I reported it stolen, but then I did not loan it to them.

  • DarkHorseSki||

    One of the good things Trump has done is put Gorsuch on the court.

  • m.EK||

    The concept of the 4th Amendment is not really understood by either Gorsuch or Alliota, Nor most of the comments.
    The first 10 Amendments were/are what the federal government, their employees, and contractors can NOT legislate, decree, or "rule" on! It is very simple, all three branches of the federal government can NOT act outside the very clear and specific areas that they have spelled out for them in the specific Articles of the Constitution. The "enumerated powers" are the format for the government and the job description for each branch, hense "official".
    The Amendments (1st 10) are the very clear LIMITS on their authority and autonomy!
    The Oath of Office is a legal and binding contract with the citizenry,,,, that these assholes will honor the Constitution AS WRITTEN! Remember, to alter the Constitution in ANY manner or form requires a SUCCESSFUL AMENDMENT PROCESS. Has this somehow been changed,,, legally, Constitutionally???
    The rest of this argument is politics and by Constitutional Law,,, moot.

    If they are part of the government then they are Constitutionally required to act only within Constitutional Law. That does NOT suspend their responsibility to "the law" (9th Amendment) or the Common Law that We The People are supposed to live within. Also, the Oath of Office is a CIVIL contract. We don't need the government to police themselves. Convict them of Treason, take their possessions, and hang them if they commit Treason. Gosar is correct.

  • newlife3.0||

    Agree. The first ten Amendments are part of the original Constitution. They are why it became our Constitution; without them, it wouldn't have. And, (above), anyone who thinks Alito has been much of of our friend... hasn't been paying attention.

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