Byrd v. United States: The Supreme Court Takes a Broad View of Fourth Amendment Standing

An interesting new ruling in the rental car case.

On Monday, the Supreme Court handed down Byrd v. United States, the Fourth Amendment case on whether an unauthorized driver has rights to challenge the search of a rental car. Regular readers may remember the case, as I blogged about it here before the argument and here after the argument.

Byrd is both conceptually interesting and practically important, so I thought I would offer some thoughts on it. I'll start with the holding; then turn to its narrowness; touch on its ambiguity; and I'll then talk about one of its important implications. I'll conclude with two minor points about rhetoric and terminology for the handful of serious Fourth Amendment nerds who make it to the end.

(1) The Holding. Before Byrd, most lower courts had held that if your name isn't on the rental car contract, you don't have any rights to challenge the search of the car you are driving. This has been the basic rule in the lower courts for decades. But Byrd unanimously rejects that view. According to Justice Kennedy, writing for the majority, a person who has "lawful possession and control" of a car will generally have Fourth Amendment rights in it. That is true, the Court reasons, because with "lawful possession and control" comes a "right to exclude" others. This "general property-based concept" controls, as Rakas had indicated 40 years ago, because "one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude." So far, this is solid ground. It's what the Court said in Rakas, and it seems like a strong foundation.

But then things get a little trickier: Exactly when does a driver whose name is not on a rental car contract have "lawful possession" of the car? The opinion suggests that lawful possession would ordinarily come from the permission of the person who legitimately rented the car. This point is made less directly than one might want, however. The point mostly comes on pages 10-11 of the slip opinion by analogy to the 1960 Jones case, which involved a person who was permitted to stay in an apartment by its renter. The key passage in Byrd seems to be this:

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, much as it did not seem to matter whether the friend of the defendant in Jones owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of a rental car would be permitted to exclude third parties from it, such as a carjacker. Tr. of Oral Arg. 48–49.

The idea seems to be that the Jones renter had lawful possession and then could delegate the lawful possession. If that worked in Jones, it should also work in Byrd.

But wait, you're thinking, what about the fact that the owner of the car tried to block the delegation—something that wasn't the case in Jones? The rental contract only let the person on the contract drive the car, perhaps suggesting that the rental company didn't want to let the possession by others be "lawful." The Court rejects the relevance of the rental contract for two reasons. First, the rental contract doesn't actually say that the contract becomes void if someone else takes the wheel. And more broadly, the terms in rental car contracts are really about the risk allocation under the contract, not the rental car company's efforts to block the delegation of possession to someone else. Given that, the fact of not having the person's name on the rental car contract doesn't eliminate the otherwise-existing Fourth Amendment right.

(2) The Precise Test Is Left Unresolved. In my pre-argument blog post on Byrd, I focused on the difficulty of coming up with a test to resolve the facts of this case. According to the government's brief, Byrd tricked the rental car company into renting the car to Reed, who then passed on the car to Byrd, as a way to get around the fact that the rental car company wouldn't rent the car directly to Byrd. I suggested that this might matter, but I wasn't sure how:

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.

The Justices apparently were puzzled by this problem, too, as they didn't answer it. Responding to the government's claim that Byrd lacks standing because he may have procured possession of the car by fraud, the Court decided to send the case back down for lower courts to figure that part out:

It is unclear whether the Government's allegations, if true, would constitute a criminal offense in the acquisition of the rental car under applicable law. And it may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge of the type the Government alleges occurred here and one who steals the car outright.

The Government did not raise this argument in the District Court or the Court of Appeals, however. It relied instead on the sole fact that Byrd lacked authorization to drive the car. And it is unclear from the record whether the Government's inferences paint an accurate picture of what occurred. Because it was not addressed in the District Court or Court of Appeals, the Court declines to reach this question. The proper course is to remand for the argument and potentially further factual development to be considered in the first instance by the Court of Appeals or by the District Court.

Byrd thus gives us a narrow but important holding. Delegated rights from the legitimate renter ordinarily control, and at least the kinds of rental car contract terms that currently exist don't change that. Whether a different result follows when someone uses another to rent a car to bypass the rental company's policy is left for the lower courts to figure out.

(3) Uncertainties of the Holding. The holding in Byrd is narrow but important, and it also strikes me as a bit difficult to pin down. I like how the Court based the reasonable expectation of privacy framework in property concepts. As I argued in a 2004 article, the Katz expectation of privacy test has long followed what I called a loose property-based approach—what Justice Kennedy calls the "general property-based concept." That's part of the reason I am somewhat underwhelmed by the addition of the Jones trespass test. As I see it, that test seems to replicate what Katz already does, putting a new label on the same work.

But Byrd leaves a little bit unclear what test lower courts should applying. At times it sounds like not just property-like concepts but actual property law—property's right to exclude—that controls. The Court doesn't grapple with what doctrines or approaches to property law should govern, though, as it relies on the government's concessions. In particular, during the argument at page 48, DOJ's Eric Feigin said that an authorized driver "probably could have fended off" a carjacker and that DOJ "wouldn't oppose his right to do that," while suggesting that there may be a different result if someone sued the driver or if the government wanted control. The Court treats that as answering the question, construing it as a concession that the unauthorized driver has a right to exclude others. Maybe I'm just displaying my ignorance, but it's not entirely clear why that is or what kind of property law test the Court has in mind to understand the right to exclude.

And at other times, the Court seems to not be applying property law at all. For example, at other times the Court focuses on questions like the language of the rental contract and the underlying purpose of its contractual terms and their effect on expectations of privacy. Adding to the confusion, in the analogous cases of Minnesota v. Carter and Minnesota v. Olson, dealing with standing in apartments and houses, the Court looked elsewhere. Olson looked to social norms, "the everyday expectations of privacy that we all share." Carter was a Rehnquist opinion that stated a result but was very sparse as to its rationale. So which is it, property? Social norms? It's common for the Court to use mutilple Models of Fourth Amendment protection, but it's at least worth flagging that the test itself isn't clearly resolved in Byrd.

Whatever the uncertainties in the holding, it's interesting that the Court was unanimous in favor of the defense, albeit on the limited issue resolved. We can't know, of course, but I would guess that if this issue had reached the Court two or three decades ago, the Court probably would have come out the other way. Perhaps Byrd is another data point for my thesis that we're in an era of expanding Fourth Amendment rights but retreating Fourth Amendment remedies. I'm oversimplifying a ton, but you could think of it roughly like this: If the issue is whether a right should exist, the Court increasingly is inclined to say "yes"; if the issue is whether a remedy should exist for violating that right, the Court is going to say "no."

(4) Byrd and E-mail Privacy Rights. One place Byrd will prove useful is in the context of e-mail privacy. Some district courts have held that terms of service can eliminate Fourth Amendment rights that otherwise exist in a person's e-mail. I think this is incorrect because terms of service can at most control who has third party consent rights rather than who has a reasonable expectation of privacy in e-mail. Byrd's explanation of why the terms of a rental contract don't control expectations of privacy in a car seems custom-made to bolster the argument that terms of service don't control expectations of privacy in e-mail. For example, the Court writes:

As anyone who has rented a car knows, car-rental agreements are filled with long lists of restrictions. Examples include prohibitions on driving the car on unpaved roads or driving while using a handheld cellphone. Few would contend that violating provisions like these has anything to do with a driver's reasonable expectation of privacy in the rental car—as even the Government agrees.

If that's true for rights in rental cars, I would think the same reasoning applies pretty directly to terms of service for an e-mail account.

(5) That Opening of Section II. I was also struck by the rhetoric used by Justice Kennedy when he opens the analysis section of the opinion:

Few protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures. The Framers made that right explicit in the Bill of Rights following their experience with the indignities and invasions of privacy wrought by "general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence." Chimel v. California, 395 U. S. 752, 761 (1969). Ever mindful of the Fourth Amendment and its history, the Court has viewed with disfavor practices that permit "police officers unbridled discretion to rummage at will among a person's private effects." Arizona v. Gant, 556 U. S. 332, 345 (2009).

That's quite a passage, and especially that first line: "Few protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures." Criminal defense attorneys around the country should have that one ready to go to begin their Fourth Amendment argument sections. I can't recall seeing that strong language in Supreme Court in a long while. Justice Kennedy can write more rhetorically grand passages than other Justices, but I don't recall him using that kind of language in a Fourth Amendment opinion.

(6) "Standing" Is Back! Let me conclude with a minor point about terminology. In my pre-argument post, I wondered if the Court would restore the use of "standing" to describe who has rights in property. I noted that despite the warning in Rakas that we're not supposed to talk about Fourth Amendment "standing," folks still do:

[J]udges, 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. . . . 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.

A passage near the end of Byrd seems to give the Court's blessing to this common practice:

It is worth noting that most courts analyzing the question presented in this case, including the Court of Appeals here, have described it as one of Fourth Amendment "standing," a concept the Court has explained is not distinct from the merits and "is more properly subsumed under substantive Fourth Amendment doctrine." Rakas, supra, at 139.

The concept of standing in Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must have a cognizable Fourth Amendment interest in the place searched before seeking relief for an unconstitutional search; but it should not be confused with Article III standing, which is jurisdictional and must be assessed before reaching the merits. Arizona Christian School Tuition Organization v. Winn, 563 U. S. 125, 129 (2011) ("To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution"); see also Rakas, supra, at 138–140.

I realize this matters to only about 19 Fourth Amendment nerds out there. But given that some of them are probably among the few people reading this post to the end, I figured this was worth noting.