Last month, in Byrd v. United States, the US Supreme Court decided a case about what happens when police violate the Fourth Amendment by searching a rental car without consent or probable cause. The Court held that in such a case, the driver of the car with lawful possession and control over it may suppress the evidence that police find there. More specifically, the driver retains a reasonable expectation of privacy—and therefore the ability to suppress illegally obtained evidence—even when he is not listed on the rental agreement as an authorized driver.
The unanimous ruling is important because it rejects the sort of property-linked formalism that some have urged on the Court. Under a formalistic approach, property rights might define the beginning and end of freedom from unreasonable searches. If it is not your rental, you have no privacy.
Though the Fourth Amendment protects property, however, the prohibition against “unreasonable searches” has long protected privacy as well, even when police have not interfered with property at all, as in the case of phone taps.
The Byrd ruling also expands (or avoids contracting) the universe of people who have standing to challenge searches that violate the Fourth Amendment. And the broader that standing is, the better for assuring police compliance with the Fourth Amendment.
The Facts
From the point of view of the police, the story of this case began when a state trooper noticed Terrence Byrd driving on the highway. Prior to this, Byrd’s girlfriend Latasha Reed had rented a car and given the car keys to Byrd. He had driven home to pick up some things and place them into the trunk of the car, after which he drove toward Pittsburgh.
Byrd seemed suspicious to the state trooper because his hands were in the “10 and 2” spots on the steering wheel, he was sitting far back from the steering wheel, and the car was apparently a rental. He followed Byrd and then pulled him over for a possible traffic infraction.
When the trooper had stopped Byrd, the latter seemed very nervous. He apparently had a difficult time retrieving his license. After he showed the trooper the rental agreement, moreover, the trooper noticed that Byrd was not listed there as an authorized driver.
A computer search revealed that Byrd had some prior convictions. Meanwhile, another trooper had arrived on the scene and told the first one that Byrd lacked a reasonable expectation of privacy because he was not on the rental agreement. They sought his consent to search the car.
Byrd may or may not have given consent to the troopers, depending on whose account you accept. The troopers also said that they did not need consent, because Byrd was not listed on the rental agreement. They searched the vehicle and found body armor and 49 bricks of heroin.
Byrd attempted unsuccessfully to suppress the evidence that the officers found, arguing that such evidence is inadmissible fruit of a Fourth Amendment violation. The district court denied the suppression motion, and Byrd pleaded guilty while reserving his right to appeal the denial of the motion. The US Court of Appeals for the Third Circuit affirmed the denial of Byrd’s motion.
Though Byrd and the government each made a variety of arguments, the important one that made its way up to the Supreme Court was over whether an unauthorized driver still enjoys a reasonable expectation of privacy in a rental car. The Court answered this question in the affirmative.
In Georgia v. Randolph, the Court said that if two residents of a home disagree on whether to admit the police, then the police lack consent to enter the home. The Court relied for this result on the social custom under which no private person would feel welcome in a home at which one of the two residents on the scene objected to her entry. There may be no property statute that lays out this rule, but if people (other than the police) would refrain from the behavior, then police—in the absence of a warrant or exigency—must not enter the house either. Customary practices among private citizens led to this result.
The Byrd case is different from Randolph, because the issue in Byrd was not whether the police had acquired adequate consent for the search but rather, whether the person complaining about the search had a Fourth Amendment right to privacy in the car. Stated differently, the question was whether, even if the police violated the Fourth Amendment by performing the search that they did, Byrd—the driver of the rental car stopped and searched by police—had standing to object to that violation.
The similarity lies in the recognition in both cases that police officers need to conduct themselves in accordance with people’s developed expectations about how others will behave, and those expectations will turn on customs and practices that extend beyond legal obligations and prohibitions. Most of us understand that walking into a home when one of the two adults at the front door is saying “no, you can’t come in” constitutes an entry without permission. And most of us understand as well that if a friend of ours rents a car and lends us that car, we have the right to expect privacy in the trunk and other hidden areas of the car.
Implications of the Court’s Ruling for Byrd
The Court remanded with a number of unanswered questions for the lower courts. One such question has to do with fraud. What if the friend of the borrower procured the vehicle by a fraudulent scheme in order to commit a crime with it? Would that mean that he is no better situated to complain of a car search than would be someone who had stolen the vehicle?
Putting this and other questions aside, however, the Court’s ruling for Byrd is positive in another respect. In addition to getting away from formalism, it also limits the damage of the Fourth Amendment standing doctrine. By recognizing the privacy expectation of a driver in lawful possession and control of a car, the Court helped strengthen the Fourth Amendment rights that everyone has in their vehicles.
Fourth Amendment standing is another way of saying that the person who wants to complain about a Fourth Amendment violation is the one (or among those) whose own Fourth Amendment rights were violated. In other words, it is not enough for the complaining party to have suffered as a result of a violation; the violation has to have been of that party’s rights. To be able to suppress evidence found during an unreasonable search, the complaining party has to have had a reasonable expectation of privacy that the police infringed.
For an illustration, imagine that police search your house without any basis and find evidence on your computer that proves that I—a complete stranger to you—robbed a bank yesterday. If prosecutors can use that evidence, then I will clearly suffer as a consequence of the search of your home, because I will now be subject to prosecution and perhaps conviction for the robbery. Yet I lack any reasonable expectation of privacy in your home and on your computer, because it is yours, and we do not even know each other.
Police will have violated your rights but not mine. And even if you wanted to, you could not move to suppress the evidence at my criminal prosecution, because you have no stake in that case.
The standing or “who has a reasonable expectation of privacy?” approach sounds sensible on its face. Fourth Amendment rights are personal, and police do nothing unconstitutional to me when they search your house without a warrant or probable cause or consent. That I end up going to prison because of that search is too bad for me, because I never had any right to expect that my crime would go undetected or that police would refrain from illegally entering your home.
The problem becomes apparent when we switch perspectives. The standing perspective is: Do I deserve to have privacy from the police search of your home? And do I deserve to escape accountability for the crime that I committed and that police discovered searching your home? A different perspective centers on the victims of unreasonable searches (like you) and on the police who performed those illegal searches.
From this new perspective, we see that if police feel free to search homes without any basis for suspecting that they will find evidence there, innocent people (like you) will regularly suffer invasions of their privacy. An officer, in turn, will feel free to violate the privacy rights of apparently innocent people if she might benefit from such violations and will suffer no negative consequences. That is where the exclusionary rule comes in: people who may not be that deserving of their privacy (because they have used it to conceal crimes) and people who did not themselves suffer an invasion of privacy (because the violation happened in someone else’s home) help deter police from violating the Constitution when they suppress evidence found during a violation.
The Court’s response to this sort of argument has been to say that exclusion is a very high price to pay for Fourth Amendment compliance, so we should exclude evidence only in egregious cases. This response is unconvincing, for two reasons. First, exclusion is no more a “high price” to pay than is the rule that people who steal money may not keep that money. Rather than “costing” the government something to which it was ever entitled, exclusion simply claws back from the government a benefit (helpful evidence) that it acquired illegitimately.
Second, given that exclusion extracts profits rather than imposing a penalty, the failure to apply exclusion consistently, whenever police violate the Fourth Amendment, results in an incentive for police to violate it. In this vein, imagine a wide-open jewelry store with diamonds and gold all over the place and a sign that says, “If you steal any of this jewelry, and we catch you, we might take back what you stole.” This setup virtually guarantees theft.
And we know, even from the Byrd case itself, that police are conscious of the standing doctrine and that they feel free to violate the Fourth Amendment when they believe that a suspect lacks standing. The troopers who interacted with Terrence Byrd specifically said that they did not need Byrd’s consent to search the car because Byrd’s name was not on the rental agreement. Think about that for a moment.
The troopers believed that a driver of a rental car whose name does not appear on the rental agreement lacks a reasonable expectation of privacy in the car. Even if the troopers were right about that, it would not follow that police could lawfully search the car without consent. Someone would still have a reasonable expectation of privacy in the car, and the police would be violating her privacy rights by performing an unreasonable search.
Yet the troopers had internalized a very different rule. The rule was: avoid searches that result in inadmissible evidence. Under that rule, so long as the suspect lacks standing to object to admission of the evidence that police find, police may perform their search.
Indeed the troopers who said that Byrd lacked standing did not even seem to realize that the search could still violate the Constitution. They appeared to believe that if their target lacked a reasonable expectation of privacy, it followed that the search was legal.
The Court did not rest its decision on the futility of consequence-free rules. It has long embraced the fiction that saying “this is illegal” is enough (with civil suits) and that numerous exceptions to “costly” exclusion are acceptable and harmless. For the Court, the important thing is that Byrd had permission to drive the car from the woman who rented it, and that gave him standing, pending lower courts’ responses to remaining questions.
The Court’s reason for deciding the case the way it did is still helpful, though. It recognizes that privacy arises not only from property ownership but from relationships between people who share spaces with one another. An appreciation for privacy without any property could prove important in future cases, including the one that either has already been or soon will be decided about acquiring cell tower data to trace a person’s whereabouts.
Perhaps in time, the Court will come to see that Fourth Amendment standing doctrine makes little sense. Whenever anyone seeks to suppress evidence that resulted from a Fourth Amendment violation, she should be able to do so, regardless of whose privacy was violated. Exclusion is about stopping police from violating the Constitution, not rewarding worthy Fourth Amendment victims. When police know that violations will lead to suppression, they may finally focus on how to avoid Fourth Amendment violations rather than on who does or does not have standing to complain about them.
