Sunday, October 8, 2017

Cert Grant Series: Football and Rental Car Searches

Football and beer and . . . . standing. The police suspect that some football fans may drink, and sobriety checkpoints tend to pop up close to stadiums (or stadia, for those of you care) around game time. Cars get searched, without warrants, without probable cause, or even without reasonable suspicion. Then it becomes really important who made it to the Super Bowl that year, as the cert petition in Byrd v. United States explains. 

The Byrd petition couched the circuit split in these terms--football attendees have different Fourth Amendment protections based on which teams made the Super Bowl that year. In some circuits, such as the Third where Byrd originates, a rental-car driver stopped at one of those checkpoints cannot challenge the search unless she is an authorized driver on the rental car agreement, even if  1) she is licensed, 2) has the renter's permission to drive, and 3) the renter is present in the car.  In other circuits, like the Ninth, where Arizona hosted Super Bowl 49,  it is a different story. 

This circuit split caught the Supreme Court's interest, and it wants to answer this question:
Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?
Image result for rental car search by policeWe see this most often in interstate drug-interdiction 'traffic' stops. And we care about this question because the Tenth Circuit is on the wrong side of the split: "[A]n unlisted driver does not have a reasonable expectation of privacy in a rental car because he does not have the rental company’s permission to operate the car." United States v. Obregon, 748 F.2d 1371, 1374–75 (10th Cir. 1984). 

Oral argument is not yet scheduled.

Cert brought to you by the Federal Public Defender in MDPa.

-- Melody

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