If You Rent a Car, Don’t Move the Seat Back
Legal Sidebari
If You Rent a Car, Don’t Move the Seat Back
Updated June 14, 2018
The Supreme Court recently announced its decision in Byrd v. United States. There, Pennsylvania police
had pulled Byrd over “because he was driving with his hands at the ‘10 and 2’ position on the steering
wheel, sitting far back from the steering wheel, and driving a rental car.” The case turned, however, not on
whether police had reasonable suspicion for the stop, but on whether Byrd had standing to challenge the
subsequent search if he was not listed on the rental agreement. Resolving a split among the lower federal
appellate courts over a per se rule, the Court held that “the mere fact that a driver in lawful possession or
control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable
expectation of privacy.” Thus, based solely on the rental agreement, Byrd could not be denied standing to
challenge the search of the rental car that resulted in the discovery of a flak jacket and 49 bricks of heroin.
The Court returned the case to the U.S. Court of Appeals for the Third Circuit (Third Circuit) for a
determination of whether Byrd lacked standing for other reasons or alternatively whether the officers had
probable cause for the search.
Background
The case began when Byrd’s girlfriend rented a Ford Fusion and handed the keys over to Byrd in the car
rental agency’s parking lot. Byrd was not listed on the rental agreement that required assurances that the
driver had a valid license and had not been convicted of various traffic offenses within three years. The
police later stopped Byrd for a possible traffic violation while he was traveling alone in the rental car.
They asked Byrd for permission to search the car, but told him they did not need his consent because he
was not listed on the rental agreement. The officers then searched the car and discovered and seized the
flak jacket and heroin.
Byrd was turned over to federal authorities and charged with possession of heroin with intent to distribute
and possession of body armor after having been convicted of a violent felony. The District Court for the
Middle District of Pennsylvania denied Byrd’s motion to suppress evidence of the seizure on the ground
that Byrd, as the unlisted driver of the rental car, had no reasonable expectation of privacy covering the
car’s content and consequently had no standing to challenge the search. The Third Circuit affirmed the
district court ruling for the same reason, but acknowledged the conflict among the lower federal appellate
courts.
Supreme Court’s Opinion
The Supreme Court unanimously held that the driver of a rental car does not lose his legitimate
expectation of privacy as to the car’s contents simply because he is not listed on the rental agreement.
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Beyond this rejection of an automatic rule, Justice Kennedy’s opinion for the Court made three other
noteworthy points. First, “the test most often associated with legitimate expectations of privacy …
supplements, rather than displaces, ‘the traditional property-based understanding of the Fourth
Amendment.’” Until Katz v. United States, the question of whether an individual enjoyed Fourth
Amendment rights with respect to a particular place was a matter of property law. In Katz, the Court held
that an individual had a Fourth Amendment-protected expectation of privacy as to conversations in the
telephone booth in which he had no property interest. For some years thereafter, the Court’s Fourth
Amendment cases spoke almost exclusively of expectations of privacy. Nevertheless, Justice Kennedy
explained, property law may provide the grounds upon which a legitimate expectation of privacy may be
based. An individual who “lawfully possesses or controls property will in all likelihood have a legitimate
expectation of privacy by virtue of the right to exclude” others from possession or control. Byrd’s
possession of the rental car was lawful on its face because the rental agreement did not make it unlawful;
instead it made him liable for any damages.
Second, Fourth Amendment standing should not be confused with Article III standing. The Third Circuit
held that Byrd, as an unlisted driver of a rental car, lacked standing to challenge a search of the car.
Article III of the Constitution authorizes federal courts to try disputes, “cases or controversies.” If an
individual has no substantial personal interest in the resolution of a dispute, he has no standing, and
federal courts have no jurisdiction to resolve the dispute on his behalf. Fourth Amendment standing, in
contrast, is not jurisdictional. Fourth Amendment standing, an expectation of privacy in the place to be
searched, is interwoven with the question of whether the government violated the Fourth Amendment
when it searched the place. An individual’s challenge cannot succeed unless he can show both that he had
a legitimate expectation of privacy and that the government impermissibly intruded upon it. Moreover, a
court may find that he failed to carry one burden without considering the other. As Justice Kennedy
pointed out, on “remand, then, the Court of Appeals is not required to assess Byrd’s reasonable
expectation of privacy in the rental car before, in its discretion, first addressing whether there was
probable cause for the search…”
Third, there may be circumstances under which an unlisted rental car driver can have no legitimate
expectation of privacy. For example, the Supreme Court indicated that a car thief would have no
legitimate expectation of privacy with respect to a car he had stolen. The Court returned the case to the
Third Circuit for a determination of whether “one who intentionally uses a third party to procure a rental
car by a fraudulent scheme for the purpose of committing a crime is no better situated that a car thief; and
that probable clause justified the search in any event.” The probable-cause assessment would give the
Third Circuit a chance to consider what combination of innocent circumstances, like driving a rental car
with the seat pushed back, may constitute reasonable suspicion for a police highway stop.
Justice Thomas, joined by Justice Gorsuch, concurred because he felt the opinion for the Court
correctly applied the Court’s earlier case law. He noted, however, that he had serious doubts of
the validity of the Court’s expectation of privacy decisions and would welcome an opportunity to
reconsider them. Justice Alito concurred in order to identify some of the numerous
circumstances that might undermine an unlisted rental car driver’s legitimate expectation of
privacy.
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Author Information
Charles Doyle
Senior Specialist in American Public Law
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