Fourth Amendment

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.

NEXT: Patient Privacy and Transgender Medical Professionals

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I’m not sure why it is so hard. The owner of the vehicle had a contract with the driver(s) on said contract similar to the way an apt complex has a contract with the renter(s). Those contracts usually contain explicit legal wording as to who may use said property. Therefore Byrd has no legal right in the usage of the vehicle. I would also note that since Byrd was not authorized as a driver nor the renter of the vehicle then LEOs have enough probable cause to conduct a search of the vehicle as it may be stolen/used illegally from the rightful renter/owner.

    1. To continue that line of reasoning, would you suggest that an overnight guest at an apartment whose lease specifies “no overnight guests” is likewise without any REP? You can give both your view personally and your view of the best reading of Minnesota v. Olson & Jones v. United States, if they are different.

      1. Short takes:

        1960 Jones v. U.S. reads that a guest has standing to challenge based on REP. The warrant for entry was valid so the challenge failed.

        1990 MN v. Olson reads that a guest has an REP. There was neither warrant nor emergency circumstances to enter the premises.

        Interesting question. IMO there would be no REP for an unauthorized overnight guest. However LEO would still need warrant or exigent circumstances to enter.

      2. In addition to nonzenze’s question, how is the officer on the road supposed to determine whether or not Byrd was an authorized driver before conducting the search?

        Options would seem to include:
        1. Demand to see the rental contract along with license and registration (but what do you do if the person refuses) then sit there by the side of the road as you puzzle through the wording of the contract (plus any applicable state and local laws) to try to figure out who is and is not an authorized driver. Remember that with all the new rental structures (car2go, Zipcar, Uber, etc), these contracts are anything but standardized.
        2. Conduct the search anyway and hope that some future lawyer will find an excuse to make the search defensible.
        Neither approach seems really practical.

        1. Most rental vehicles are easily identifiable. I would also note that one does not have the registration/insurance for a rental car, only the contract. When an LEO requests license and registration then one would provide one’s driving license and rental contract. Seriously, this is no different than a stop of a person driving a vehicle that is not registered to him/her or cannot provide the appropriate license/registration/insurance documents.

    2. I too am not sure why it is so hard. The renter violated his contract with Budget. That’s civil. There is no other area of contract law where simple breach of contract would suddenly remove a person’s fourth amendment rights. An unauthorized person driving the rental vehicle may indeed be enough for probable cause to obtain a warrant to search the vehicle, but that isn’t what happened. In the State of Pennsylvania, an unauthorized driver of a rental vehicle can be searched, without a warrant, and without probable cause. Its a case where government has managed to carve out a loophole in private contract enforcement where, for some reason, protections afforded to everyone else in the Constitution suddenly don’t apply.

  2. My question – if the guy driving the rental car doesn’t have the consent of the renter, how can he approve or deny the search of the rental car? Seems the legal renter would be the only person who could do that, absent an overwhelming need to search, e.g. a similar car was just used in a kidnapping.

    1. Apparent authority is distinct from REP.

  3. I’m baffled by the precedent that puts scenario (d) on the wrong side of the line, unless the person who the house belonged to had granted the police permission to perform the search in question. Surely that permission, or lack thereof, is what makes the search legal or illegal? Why should the police be permitted to use evidence obtained from an illegal search, and what does “standing” have to do with it?

    … is this just the result of some judge really really wanting to make a particular decision, or is there actually a principled argument to be made?

    (And yeah, Byrd v United States seems to be very much the same situation.)

    1. I think that you’re right that whether the search was legal or not depends on whether the owner granted permission. However, the rule that the evidence obtained illegally may not be used was made up by the courts in the 20th century (previously, the only recourse was to sue the cop who searched for trespass, which didn’t disincentivize bad behavior too much). In an effort to limit the made-up rule, SCOTUS has decreed that the rule only prevents the evidence from being used against the one whose rights were violated. Thus, the question becomes was this defendant subject to an illegal search, not just was there an illegal search.

    2. A little late so you may not see this, but that is why the question is thought of as standing. What the police did was only illegal as to the owner of the house. Not all those that happen to be there. That is because the 4th amendment is a personal right. That home did not belong to the person just there a few hours so doesn’t qualify as his home, person, paper, or effects which is all the 4th amendment protects. The evidence was therefore not illegally seized as to him. Only the owner.

      The evidence can be used against him. It cannot be used against the owner.

  4. On the issue of standing, I came across a great quote for a California case on standing back in law school when I was writing a comment on Carter v. Minnesota: “But the term [standing] has demonstrated a vampiric persistence, and if the United States Supreme Court cannot drive a stake through its heart, we doubt that we can.” People v. Cartwright, 72 Cal. App. 4th 1362, 1369, 85 Cal. Rptr. 2d 788, 793 (1999).

Please to post comments