22 May 2018

Supreme Court Finds Expectation of Privacy for Rental Car Driver

In its preview of hot privacy and cybersecurity topics for 2018, Data Matters noted that this year the Supreme Court was scheduled to decide a number of cases with potentially substantial privacy implications.  This past week, the Court issued its opinion in one such case, Byrd v. United States, a case concerning “whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement.”  Concluding that a driver does have such an expectation, the Court issued a narrow and unanimous opinion that, as laid out below, could have implications for commercial privacy expectations in other contexts.

The facts of the case.  Latasha Reed signed a rental car agreement that required her to certify she had a valid driver’s license and had not committed any vehicle-related offense in the last three years.  The agreement also included an addendum, which read, in relevant part, as follows:

I understand that the only ones permitted to drive the vehicle other than the renter are the renter’s spouse, the renter’s co-employee (with the renter’s permission, while on company business), or a person who appears at the time of the rental and signs an Additional Driver Form.  These other drivers must also be at least 25 years old and validly licensed. PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT. THIS MAY RESULT IN ANY AND ALL COVERAGE OTHERWISE PROVIDED BY THE RENTAL AGREEMENT BEING VOID AND MY BEING FULLY RESPONSIBLE FOR ALL LOSS OR DAMAGE, INCLUDING LIABILITY TO THIRD PARTIES.

Although Reed did not identify any additional drivers of the car, Terrence Byrd, who accompanied Reed to the facility, drove it away from the lot without Reed.  Byrd was later pulled over for a possible driving infraction, and, during the stop, he provided the police with the rental agreement.  When Byrd denied the police’s request to search his car, the troopers commenced a search anyway, on the ground that Byrd had no expectation of privacy in the vehicle because he was not identified as an authorized driver on the rental agreement.  The troopers found 49 bricks of heroin in Byrd’s trunk, and, after the district court and Third Circuit denied Byrd’s motion to suppress that evidence, the Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals over “whether an unauthorized driver has a reasonable expectation of privacy in a rental car.”

The opinion of the Court.  Writing for a unanimous Court, Justice Kennedy noted at the outset that one who owns and possesses a car “almost always has a reasonable expectation of privacy in it.”  Justice Kennedy further noted, however, that mere presence in a vehicle, standing alone, is not enough.  But what about cases, like this one, which stand between these two extremes?

Noting that no “single metric or exhaustive list of considerations” can resolve such a case, the Court quoted its earlier decision in Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978), for the proposition that a legitimate expectation of privacy “must have a source outside the First Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.”  Further, the Court noted that these two concepts – property rights and societal understandings – are often linked, particularly when one who “lawfully possesses and controls” a vehicle has the “right to exclude” others from it.  In such a circumstance, the Court made clear, a reasonable expectation of privacy exists.

Applying these principles to the facts here, the Court rejected the Government’s argument that “only authorized drivers of rental cars have expectations of privacy in those vehicles”:

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 [an earlier case where the Court found the defendant had a reasonable expectation of privacy, Jones v. United States, 362 U.S. 257, 259 (1960)] 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.

Importantly, the Court also rejected the Government’s claim that Byrd had no basis for claiming a reasonable expectation of privacy because his driving of the rental car violated the rental agreement.  “As anyone who has rented a car knows,” the Court stated:

[C]ar-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.

Moreover, the Court found no reason to distinguish between these provisions and the authorized driver addendum.  For one, the Court emphasized that, by its very terms, the rental contract did not become “void” if an unauthorized driver operated the vehicle.  Second, the Court noted that “for Fourth Amendment purposes there is no meaningful difference between the authorized-driver provision and the other provisions the Government agrees do not eliminate an expectation of privacy,” since all concern “risk allocation between private parties,” rather than a driver’s reasonable expectation of privacy in the vehicle.

In reaching its conclusion, the Court left for another day the Government’s contention that Byrd should “have no greater expectation of privacy than a car thief because he intentionally used a third party to mislead the rental company from the very outset,” because he knew he would not be able to rent a car on his own with his criminal record.  Finding that this argument had not been presented to the district court or Third Circuit, the Court declined to pass on it here and noted that it is “unclear” whether the Government’s allegations, if true, would constitute a crime, and whether, if they did, that fact should affect the Fourth Amendment analysis.

Concurring opinions.  Although the case was decided unanimously, two concurring opinions were issued.  First, Justice Thomas, joined by Justice Gorsuch, wrote to note that he harbors “serious doubts” about the “reasonable expectation of privacy test.”  Because no party asked the Court to reconsider that test here, and because he felt the Court correctly applied the Court’s precedents, he thus joined the Court’s opinion.  Justice Thomas further suggested, however, that he would be willing to consider, in an appropriate case, a question that the Court did not reach here because it was not addressed below – whether Byrd “should prevail under the original meaning of the Fourth Amendment because the police interfered with a property interest that he had in the rental car.”

Second, Justice Alito concurred to emphasize the narrowness of the Court’s holding.  In particular, Justice Alito wrote to clarify that the Court’s decision solely “holds that an unauthorized driver of a rental car is not always barred from contesting a search of the vehicle.”  He then emphasized that, under the Court’s opinion, relevant “questions bearing on the driver’s ability to raise a Fourth Amendment claim” potentially include:  “the terms of the particular rental agreement”; “the circumstances surrounding the rental”; “the reason why the driver took the wheel”; “any property right that the driver might have”; and “the legality of his conduct under the law of the State where the conduct occurred.”

Implications.  In the wake of the holding, commentators have termed it a “narrow but important” holding:  “Delegated rights from the legitimate renter ordinarily control, and at least the kinds of rental car contract terms that current exist don’t change that.”

Consistent with this view, the most interesting aspect of the Court’s opinion appears to be its rejection of the Government’s argument that allowing an unauthorized driver to operate the vehicle was a violation of the rental agreement that would preclude the driver from having a legitimate expectation of privacy.  This decision was applauded by rights groups, who have long pushed back against claims that contractual provisions or terms of service should dictate expectations of privacy, particularly in the context of personal email.  As Justice Alito’s concurrence notes, however, the precise breadth of the opinion is unclear, and it remains to be seen how lower courts apply it when faced with different factual circumstances and different contractual language.

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