NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1371
_________________
TERRENCE BYRD, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[May 14, 2018]
Justice Kennedy delivered the opinion of the
Court.
In September 2014, Pennsylvania State Troopers
pulled over a car driven by petitioner Terrence Byrd. Byrd was the
only person in the car. In the course of the traffic stop the
troopers learned that the car was rented and that Byrd was not
listed on the rental agreement as an authorized driver. For this
reason, the troopers told Byrd they did not need his consent to
search the car, including its trunk where he had stored personal
effects. A search of the trunk uncovered body armor and 49 bricks
of heroin.
The evidence was turned over to federal
authorities, who charged Byrd with distribution and possession of
heroin with the intent to distribute in violation of 21
U. S. C. §841(a)(1) and possession of body armor by a
prohibited person in violation of 18 U. S. C. §931(a)(1).
Byrd moved to suppress the evidence as the fruit of an unlawful
search. The United States District Court for the Middle District of
Pennsylvania denied the motion, and the Court of Appeals for the
Third Circuit affirmed. Both courts concluded that, because Byrd
was not listed on the rental agreement, he lacked a reasonable
expectation of privacy in the car. Based on this conclusion, it
appears that both the District Court and Court of Appeals deemed it
unnecessary to consider whether the troopers had probable cause to
search the car.
This Court granted certiorari to address the
question 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. The Court now holds 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.
The Court concludes a remand is necessary to
address in the first instance the Government’s argument that this
general rule is inapplicable because, in the circumstances here,
Byrd had no greater expectation of privacy than a car thief. If
that is so, our cases make clear he would lack a legitimate
expectation of privacy. It is necessary to remand as well to
determine whether, even if Byrd had a right to object to the
search, probable cause justified it in any event.
I
On September 17, 2014, petitioner Terrence
Byrd and Latasha Reed drove in Byrd’s Honda Accord to a Budget
car-rental facility in Wayne, New Jersey. Byrd stayed in the
parking lot in the Honda while Reed went to the Budget desk and
rented a Ford Fusion. The agreement Reed signed required her to
certify that she had a valid driver’s license and had not committed
certain vehicle-related offenses within the previous three years.
An addendum to the agreement, which Reed initialed, provides the
following restriction on who may drive the rental car:
“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.” App. 19.
In filling out the paperwork for the rental
agreement, Reed did not list an additional driver.
With the rental keys in hand, Reed returned to
the parking lot and gave them to Byrd. The two then left the
facility in separate cars—she in his Honda, he in the rental car.
Byrd returned to his home in Patterson, New Jersey, and put his
personal belongings in the trunk of the rental car. Later that
afternoon, he departed in the car alone and headed toward
Pittsburgh, Pennsylvania.
After driving nearly three hours, or roughly
half the distance to Pittsburgh, Byrd passed State Trooper David
Long, who was parked in the median of Interstate 81 near
Harrisburg, Pennsylvania. Long was suspicious of Byrd 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. Long knew the Ford Fusion was a rental car
because one of its windows contained a barcode. Based on these
observations, he decided to follow Byrd and, a short time later,
stopped him for a possible traffic infraction.
When Long approached the passenger window of
Byrd’s car to explain the basis for the stop and to ask for
identification, Byrd was “visibly nervous” and “was shaking and had
a hard time obtaining his driver’s license.” Id., at 37. He
handed an interim license and the rental agreement to Long, stating
that a friend had rented the car. Long returned to his vehicle to
verify Byrd’s license and noticed Byrd was not listed as an
additional driver on the rental agreement. Around this time another
trooper, Travis Martin, arrived at the scene. While Long processed
Byrd’s license, Martin conversed with Byrd, who again stated that a
friend had rented the vehicle. After Martin walked back to Long’s
patrol car, Long commented to Martin that Byrd was “not on the
renter agreement,” to which Martin replied, “yeah, he has no
expectation of privacy.” 3 App. to Brief for Appellant in No.
16–1509 (CA3), at 21:40.
A computer search based on Byrd’s identification
returned two different names. Further inquiry suggested the other
name might be an alias and also revealed that Byrd had prior
convictions for weapons and drug charges as well as an outstanding
warrant in New Jersey for a probation violation. After learning
that New Jersey did not want Byrd arrested for extradition, the
troopers asked Byrd to step out of the vehicle and patted him
down.
Long asked Byrd if he had anything illegal in
the car. When Byrd said he did not, the troopers asked for his
consent to search the car. At that point Byrd said he had a “blunt”
in the car and offered to retrieve it for them. The officers
understood “blunt” to mean a marijuana cigarette. They declined to
let him retrieve it and continued to seek his consent to search the
car, though they stated they did not need consent because he was
not listed on the rental agreement. The troopers then opened the
passenger and driver doors and began a thorough search of the
passenger compartment.
Martin proceeded from there to search the car’s
trunk, including by opening up and taking things out of a large
cardboard box, where he found a laundry bag containing body armor.
At this point, the troopers decided to detain Byrd. As Martin
walked toward Byrd and said he would be placing him in handcuffs,
Byrd began to run away. A third trooper who had arrived on the
scene joined Long and Martin in pursuit. When the troopers caught
up to Byrd, he surrendered and admitted there was heroin in the
car. Back at the car, the troopers resumed their search of the
laundry bag and found 49 bricks of heroin.
In pretrial proceedings Byrd moved to suppress
the evidence found in the trunk of the rental car, arguing that the
search violated his Fourth Amendment rights. Al- though Long
contended at a suppression hearing that the troopers had probable
cause to search the car after Byrd stated it contained marijuana,
the District Court denied Byrd’s motion on the ground that Byrd
lacked “standing” to contest the search as an initial matter, 2015
WL 5038455, *2 (MD Pa., Aug. 26, 2015) (citing United States
v. Kennedy, 638 F. 3d 159, 165 (CA3 2011)). Byrd later
entered a conditional guilty plea, reserving the right to appeal
the suppression ruling.
The Court of Appeals affirmed in a brief summary
opinion. 679 Fed. Appx. 146 (CA3 2017). As relevant here, the Court
of Appeals recognized that a “circuit split exists as to whether
the sole occupant of a rental vehicle has a Fourth Amendment
expectation of privacy when that occupant is not named in the
rental agreement”; but it noted that Circuit precedent already had
“spoken as to this issue . . . and determined such a
person has no expectation of privacy and therefore no standing to
challenge a search of the vehicle.” Id., at 150 (citing
Kennedy, supra, at 167–168). The Court of Appeals did
not reach the probable-cause question.
This Court granted Byrd’s petition for a writ of
certio- rari, 582 U. S. ___ (2017), to address the conflict
among the Courts of Appeals over whether an unauthorized driver has
a reasonable expectation of privacy in a rental car. Compare
United States v. Seeley, 331 F. 3d 471, 472 (CA5
2003) (per curiam); United States v. Wellons,
32 F. 3d 117, 119 (CA4 1994); United States v.
Roper, 918 F. 2d 885, 887–888 (CA10 1990), with
United States v. Smith, 263 F. 3d 571, 581–587
(CA6 2001); Kennedy, supra, at 165–168, and with
United States v. Thomas, 447 F. 3d 1191,
1196–1199 (CA9 2006); United States v. Best, 135
F. 3d 1223, 1225 (CA8 1998).
II
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).
This concern attends the search of an
automobile. See Delaware v. Prouse, 440 U. S.
648, 662 (1979). The Court has acknowledged, however, that there is
a diminished expectation of privacy in automobiles, which often
permits officers to dispense with obtaining a warrant before
conducting a lawful search. See, e.g., California v.
Acevedo, 500 U. S. 565, 579 (1991).
Whether a warrant is required is a separate
question from the one the Court addresses here, which is whether
the person claiming a constitutional violation “has had his own
Fourth Amendment rights infringed by the search and seizure which
he seeks to challenge.” Rakas v. Illinois, 439
U. S. 128, 133 (1978). Answering that question requires
examination of whether the person claiming the constitutional
violation had a “legitimate expectation of privacy in the premises”
searched. Id., at 143. “Expectations of privacy protected by
the Fourth Amendment, of course, need not be based on a common-law
interest in real or personal property, or on the invasion of such
an interest.” Id., at 144, n. 12. Still, “property
concepts” are instructive in “determining the presence or absence
of the privacy interests protected by that Amendment.”
Ibid.
Indeed, more recent Fourth Amendment cases have
clarified that the test most often associated with legitimate
expectations of privacy, which was derived from the second Justice
Harlan’s concurrence in Katz v. United States, 389
U. S. 347 (1967), supplements, rather than displaces, “the
traditional property-based understanding of the Fourth Amendment.”
Florida v. Jardines, 569 U. S. 1, 11 (2013).
Perhaps in light of this clarification, Byrd now argues in the
alternative that he had a common-law property interest in the
rental car as a second bailee that would have provided him with a
cognizable Fourth Amendment interest in the vehicle. But he did not
raise this argument before the District Court or Court of Appeals,
and those courts did not have occasion to address whether Byrd was
a second bailee or what consequences might follow from that
determination. In those courts he framed the question solely in
terms of the Katz test noted above. Because this is “a court
of review, not of first view,” Cutter v. Wilkinson,
544 U. S. 709, 718, n. 7 (2005), it is generally unwise
to consider arguments in the first instance, and the Court declines
to reach Byrd’s contention that he was a second bailee.
Reference to property concepts, however, aids
the Court in assessing the precise question here: Does a driver of
a rental car have a reasonable expectation of privacy in the car
when he or she is not listed as an authorized driver on the rental
agreement?
III
A
One who owns and possesses a car, like one who
owns and possesses a house, almost always has a reasonable
expectation of privacy in it. More difficult to define and
delineate are the legitimate expectations of privacy of others.
On the one hand, as noted above, it is by now
well established that a person need not always have a recognized
common-law property interest in the place searched to be able to
claim a reasonable expectation of privacy in it. See Jones
v. United States, 362 U. S. 257, 259 (1960);
Katz, supra, at 352; Mancusi v.
DeForte, 392 U. S. 364, 368 (1968); Minnesota v.
Olson, 495 U. S. 91, 98 (1990).
On the other hand, it is also clear that
legitimate presence on the premises of the place searched, standing
alone, is not enough to accord a reasonable expectation of privacy,
because it “creates too broad a gauge for measurement of Fourth
Amendment rights.” Rakas, 439 U. S., at 142; see also
id., at 148 (“We would not wish to be understood as saying
that legitimate presence on the premises is irrelevant to one’s
expectation of privacy, but it cannot be deemed controlling”);
Minnesota v. Carter, 525 U. S. 83, 91
(1998).
Although the Court has not set forth a single
metric or exhaustive list of considerations to resolve the
circumstances in which a person can be said to have a reasonable
expectation of privacy, it has explained that “[l]egitimation of
expectations of privacy by law must have a source outside of the
Fourth Amendment, either by reference to concepts of real or
personal property law or to understandings that are recognized and
permitted by society.” Rakas, 439 U. S., at 144,
n. 12. The two concepts in cases like this one are often
linked. “One of the main rights attaching to property is the right
to exclude others,” and, in the main, “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.” Ibid. (citing 2 W. Blackstone, Commentaries on the
Laws of England, ch. 1). This general property-based concept guides
resolution of this case.
B
Here, the Government contends that drivers who
are not listed on rental agreements always lack an expectation of
privacy in the automobile based on the rental company’s lack of
authorization alone. This per se rule rests on too
restrictive a view of the Fourth Amendment’s protections. Byrd, by
contrast, contends that the sole occupant of a rental car always
has an expectation of privacy in it based on mere possession and
control. There is more to recommend Byrd’s proposed rule than the
Government’s; but, without qualification, it would include within
its ambit thieves and others who, not least because of their lack
of any property-based justification, would not have a reasonable
expectation of privacy.
1
Stripped to its essentials, the Government’s
position is that only authorized drivers of rental cars have
expectations of privacy in those vehicles. This position is based
on the following syllogism: Under Rakas, passengers do not
have an expectation of privacy in an automobile glove compartment
or like places; an unauthorized driver like Byrd would have been
the passenger had the renter been driving; and the unauthorized
driver cannot obtain greater protection when he takes the wheel and
leaves the renter behind. The flaw in this syllogism is its major
premise, for it is a misreading of Rakas.
The Court in Rakas did not hold that
passengers cannot have an expectation of privacy in automobiles. To
the contrary, the Court disclaimed any intent to hold “that a
passenger lawfully in an automobile may not invoke the exclusionary
rule and challenge a search of that vehicle unless he happens to
own or have a possessory interest in it.” 439 U. S., at 150,
n. 17 (internal quotation marks omitted). The Court instead
rejected the argument that legitimate presence alone was sufficient
to assert a Fourth Amendment interest, which was fatal to the
petitioners’ case there because they had “claimed only that they
were ‘legitimately on [the] premises’ and did not claim that they
had any legitimate expectation of privacy in the areas of the car
which were searched.” Ibid.
What is more, the Government’s syllogism is
beside the point, because this case does not involve a passenger at
all but instead the driver and sole occupant of a rental car. As
Justice Powell observed in his concurring opinion in Rakas,
a “distinction . . . may be made in some circumstances
between the Fourth Amendment rights of passengers and the rights of
an individual who has exclusive control of an automobile or of its
locked compartments.” Id., at 154. This situation would be
similar to the defendant in Jones, supra, who, as
Rakas notes, had a reasonable expectation of privacy in his
friend’s apartment because he “had complete dominion and control
over the apartment and could exclude others from it,” 439
U. S., at 149. Justice Powell’s observation was also
consistent with the majority’s explanation that “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,” id., at 144, n. 12, an explanation tied to
the majority’s discussion of Jones.
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.
2
The Government further stresses that Byrd’s
driving the rental car violated the rental agreement that Reed
signed, and it contends this violation meant Byrd could not have
had any basis for claiming an expectation of privacy in the rental
car at the time of the search. 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. Brief for United States 32.
Despite this concession, the Government argues
that permitting an unauthorized driver to take the wheel of a
rental car is a breach different in kind from these others, so
serious that the rental company would consider the agreement “void”
the moment an unauthorized driver takes the wheel. Id., at
4, 15, 16, 27. To begin with, that is not what the contract says.
It states: “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.” App. 24 (emphasis
deleted).
Putting the Government’s misreading of the
contract aside, there may be countless innocuous reasons why an
unauthorized driver might get behind the wheel of a rental car and
drive it—perhaps the renter is drowsy or inebriated and the two
think it safer for the friend to drive them to their destination.
True, this constitutes a breach of the rental agreement, and
perhaps a serious one, but the Government fails to explain what
bearing this breach of contract, standing alone, has on
expectations of privacy in the car. Stated in different terms, 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, all
of which concern risk allocation between private parties—violators
might pay additional fees, lose insurance coverage, or assume
liability for damage resulting from the breach. But that risk
allocation has little to do with whether one would have a
reasonable expectation of privacy in the rental car if, for
example, he or she other- wise has lawful possession of and control
over the car.
3
The central inquiry at this point turns on the
concept of lawful possession, and this is where an important
qualification of Byrd’s proposed rule comes into play. Rakas
makes clear that “ ‘wrongful’ presence at the scene of a
search would not enable a defendant to object to the legal- ity of
the search.” 439 U. S., at 141, n. 9. “A burglar plying
his trade in a summer cabin during the off season,” for example,
“may have a thoroughly justified subjective expectation of privacy,
but it is not one which the law recognizes as ‘legitimate.’ ”
Id., at 143, n. 12. Likewise, “a person present in a
stolen automobile at the time of the search may [not] object to the
lawfulness of the search of the automobile.” Id., at 141,
n. 9. No matter the degree of possession and control, the car
thief would not have a reasonable expectation of privacy in a
stolen car.
On this point, in its merits brief, the
Government asserts that, on the facts here, Byrd should have no
greater expectation of privacy than a car thief because he
intentionally used a third party as a strawman in a calculated plan
to mislead the rental company from the very outset, all to aid him
in committing a crime. This argument is premised on the
Government’s inference that Byrd knew he would not have been able
to rent the car on his own, because he would not have satisfied the
rental company’s requirements based on his criminal record, and
that he used Reed, who had no intention of using the car for her
own purposes, to procure the car for him to transport heroin to
Pittsburgh.
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.
IV
The Government argued in its brief in
opposition to certiorari that, even if Byrd had a Fourth Amendment
interest in the rental car, the troopers had probable cause to
believe it contained evidence of a crime when they initiated their
search. If that were true, the troopers may have been permitted to
conduct a warrantless search of the car in line with the Court’s
cases concerning the automobile exception to the warrant
requirement. See, e.g., Acevedo, 500 U. S., at
580. The Court of Appeals did not reach this question because it
concluded, as an initial matter, that Byrd lacked a reasonable
expectation of privacy in the rental car.
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.
Because Fourth Amendment standing is subsumed under substantive
Fourth Amendment doctrine, it is not a jurisdictional question and
hence need not be addressed before addressing other aspects of the
merits of a Fourth Amendment claim. On remand, then, the Court of
Appeals is not required to assess Byrd’s reason- able expectation
of privacy in the rental car before, in its discretion, first
addressing whether there was probable cause for the search, if it
finds the latter argument has been preserved.
V
Though new, the fact pattern here continues a
well-traveled path in this Court’s Fourth Amendment jurisprudence.
Those cases support the proposition, and the Court now holds, 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. The Court
leaves for remand two of the Government’s arguments: that one who
intention- ally 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 probable cause justified
the search in any event. The Court of Appeals has discretion as to
the order in which these questions are best addressed.
* * *
The judgment of the Court of Appeals is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1371
_________________
TERRENCE BYRD, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the third circuit
[May 14, 2018]
Justice Thomas, with whom Justice Gorsuch
joins, concurring.
Although I have serious doubts about the
“reasonable expectation of privacy” test from Katz v.
United States, 389 U. S. 347, 360–361 (1967) (Harlan,
J., concurring), I join the Court’s opinion because it correctly
navigates our precedents, which no party has asked us to
reconsider. As the Court notes, Byrd also argued that he 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. I agree with the Court’s decision not to review this
argument in the first instance. In my view, it would be especially
“unwise” to reach that issue, ante, at 7, because the
parties fail to adequately address several threshold questions.
The Fourth Amendment guarantees the people’s
right to be secure from unreasonable searches of “their persons,
houses, papers, and effects.” With this language, the Fourth
Amendment gives “each person . . . the right to be
secure against unreasonable searches and seizures in his own
person, house, papers, and effects.” Minnesota v.
Carter, 525 U. S. 83, 92 (1998) (Scalia, J.,
concurring). The issue, then, is whether Byrd can prove that the
rental car was his effect.
That issue seems to turn on at least three
threshold questions. First, what kind of property interest do
individuals need before something can be considered “their
. . . effec[t]” under the original meaning of the Fourth
Amendment? Second, what body of law determines whether that
property interest is present—modern state law, the common law of
1791, or something else? Third, is the unauthorized use of a rental
car illegal or otherwise wrongful under the relevant law, and, if
so, does that illegality or wrongfulness affect the Fourth
Amendment analysis?
The parties largely gloss over these questions,
but the answers seem vitally important to assessing whether Byrd
can claim that the rental car is his effect. In an appropriate
case, I would welcome briefing and argument on these questions.
