A week ago today, the Supreme Court of the United States resolved a circuit split and ruled that a person driving a rental car, but not listed on the rental agreement, has a reasonable expectation of privacy in the vehicle . . . at least sometimes. The case is Byrd v. United States.
Facts. The Court’s syllabus summarizes the facts as follows:
Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania. After stopping Byrd for a traffic infraction, Pennsylvania State Troopers learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car. The troopers proceeded to search the car [stating that they did not need Byrd’s consent because he was not an authorized driver], discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with federal drug and other crimes.
Lower court rulings. Byrd moved “to suppress the evidence as the fruit of an unlawful search,” but both the district court and the Third Circuit concluded that, because he wasn’t listed on the rental agreement, he had no reasonable expectation of privacy in the car. As far as I know, North Carolina’s appellate courts haven’t ruled on that issue, which has divided courts nationally. Because they found no reasonable expectation of privacy, the lower courts didn’t reach the question of whether probable cause supported the search.
Supreme Court ruling. Justice Kennedy, writing for a unanimous Court, concluded that “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.” Such a person would have a “right to exclude” others from the vehicle, such as potential carjackers. And although the person would be in violation of the rental agreement by driving the car, the Court noted that such “agreements are filled with long lists of restrictions,” including against “driving the car on unpaved roads or driving while using a handheld cellphone.” Such contractual limits, the Court declared, may determine civil liability but do not have “anything to do with a driver’s reasonable expectation of privacy in the rental car.”
Schemes to defraud car rental companies. Overall, the opinion is a win for the defendant. But it isn’t a complete win. The Court agreed with the Government that a car thief would not have a reasonable expectation of privacy in a stolen car, as the thief would not be in lawful possession. It remanded the case for further consideration of the Government’s argument that “that 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 than a car thief,” and that Byrd had engaged in such a scheme by using Ms. Reed as a straw renter.
What about probable cause? Another issue to be addressed on remand is whether probable cause supported the search. Given Byrd’s apparent admission that he had marijuana in the car, that issue doesn’t look too good for the defense.
What if the renter is present? Byrd was in the car by himself. But what if Ms. Reed had been a passenger in the car? Could she have consented to a search of the vehicle over his objection? The Court didn’t address this hypothetical, but I would think so. We know from Georgia v. Randolph, 547 U.S. 103 (2006), that when two residents share a home, one can’t consent to a search over the objection of the other. But Ms. Reed and Byrd were not co-renters of the vehicle. She was the renter, could exclude him or allow him to enter, and so presumably could allow a search or forbid it.
Obligation to produce rental agreement? All this talk about who’s listed on a rental agreement and what the terms of the agreement are doesn’t matter very much if an officer who stops a vehicle can’t examine the agreement. We know that G.S. 20-29 requires a motorist to produce his or her license to an officer upon request, and that G.S. 20-57 requires a motorist to produce proof of registration. I’m not aware of a statute that directly requires a driver of a rental car to produce the rental agreement upon request, but I have read that car rental companies do not always leave the registration in the vehicle, so the rental agreement may be the best evidence of registration available to the driver. In such a circumstance, perhaps the driver would need to produce the agreement. I’d be interested to hear readers’ thoughts and experiences on this point.