Tuesday, May 22, 2018

Not on the rental agreement? No problem.

As you've likely heard by now, the Supreme Court held last week in Byrd v. United States that a driver of a rental car who is not listed on the rental agreement nonetheless (usually) has standing to challenge a search of the car.

Here are some bits you may not have heard:

 1. If the driver gained possession of the car by fraud, that fact may deprive him or her of standing: "[I]t may be that there is no reason that the law should distinguish between one who obtains a vehicle through subterfuge . . . and one who steals the car outright."

2. Whether or not the driver violated the rental agreement is not likely relevant to the question of standing: "[T]he Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car."

3. Standing to challenge a search might be shown either by establishing a reasonable expectation of privacy in the place or thing searched (the basis on which Byrd won), or by establishing a property interest in the place or thing searched, that is, a "right to exclude others." Check out the Thomas/Gorsuch concurrence on this point, and note that the majority folded the property concept into its expectation-of-privacy analysis. See also United States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) ("In light of the Fourth Amendment’s original meaning, Jones explained that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing ('persons, houses, papers, and effects') for the purpose of obtaining information.") (emphasis original).

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