Tag Archives: Search and Seizure

U.S. Supreme Court Finds That An Unauthorized Driver In Lawful Possession of Rental Car Has A Right To Privacy

On May 14, 2018, the United States Supreme Court held that people who borrow rental cars from friends are afforded the same protections against unlawful searches as the authorized driver. In the matter of Terrence Byrd v. United States, 2018 WL 2186175, the Supreme Court justices unanimously held “ 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”.

In September of 2014, Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the rental car which had been rented by his fiancée, Latasha Reed in Wayne, New Jersey. Reed rented the car with Byrd present but failed to list Byrd as authorized driver on the rental agreement. The rental agreement specifically stated that “PERMITTING AN UNAUTHORIZED DRIVER TO OPERATE THE VEHICLE IS A VIOLATION OF THE RENTAL AGREEMENT.”

Shortly after Reed rented the car, Byrd returned with the car to his home in Patterson, New Jersey to get his belongings and later departed in the car alone for Pittsburgh, Pennsylvania. After driving three hours, Byrd was stopped by Pennsylvania Troopers on Rt. 81, near Harrisburg, Pennsylvania.

The Troopers became 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. Based on these observations, the Troopers decided to follow Byrd and, a short time later, stopped him for a possible traffic infraction.

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. The Troopers discovered that Byrd had identification under two different possible alias. The Troopers further discovered that Byrd had prior convictions for weapons and drug charges as well as an outstanding warrant for a probation violation in New Jersey. Byrd then revealed he had a “blunt” in the car and offered to retrieve it for them. The Troopers declined Byrd’s offer and continued to seek consent to search the car, though they stated they did not need consent because he was not listed on the rental agreement. The Troopers began a thorough search of the car and trunk. In the trunk, the Troopers found a laundry bag containing body armor and found 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.

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.”

In its Opinion, the Supreme Court recognized that 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, but it is more difficult to define and delineate the legitimate expectations of privacy of others. The Court stated that a person does not always need to have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.

On the other hand, the Supreme Court also noted 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.”

The Supreme Court 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. The Supreme Court further noted that the two concepts in cases like Byrd’s case 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.”

In rejecting the Government’s position that only authorized drivers of rental cars have expectations of privacy in those vehicles, the Court saw 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.

The central inquiry was whether Byrd had lawful possession of the car.  The Court reasoned that under some circumstances ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search. A car thief would not have a reasonable expectation of privacy in a stolen car. However, Byrd was a permissive driver of the rental car and therefore, had the right to exclude others and a reasonable expectation of privacy.

The Supreme Court vacated the judgment of the Court of Appeals and remanded the case to further consider 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.

Attorneys arguing on behalf of Byrd argued that 115 million car rentals take place annually in the United States and if the government won, police would have an incentive to pull over a rental car driver who commits a traffic violation because police will know they can search the car if the driver isn’t on the rental agreement.


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Sometimes the Courts Get it Right and Actually Defend the Constitution

Story recently posted on the Huffington Post regarding the protection of our most basic rights…

 – Edward H. Levi Distinguished Service Professor of Law, University of Chicago

Stop-and-Frisk: Why We Have Courts
Posted: 08/13/2013 12:27 am

Every once in a while, I burst with pride in the American legal system. It doesn’t happen as often as I would like, but Monday was such a day.

On Monday, Judge Shira A. Scheindlin, a federal judge in New York City, handed down her decision in Floyd v. The City of New York. The plaintiffs in Floyd challenged the constitutionality of New York City’s stop-and-frisk policy. In a truly remarkable and courageous opinion, Judge Scheindlin held that policy unconstitutional.

The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” To the Framers of our Constitution, this was a fundamental precept of American freedom. This guarantee preserves our privacy and dignity, and reaffirms that in a self-governing society the government must respect the rights of the individual.

As the Supreme Court recognized more than a century ago, “No right is held more sacred, or is more carefully guarded, by the . . . law than the right of every individual to the possession and control of his own person, free from all restraint or interference, unless by clear and unquestionable authority of law.”

To this end, the Supreme Court has long held that a police officer cannot constitutionally search or seize an individual unless the officer has probable cause to believe that the individual has committed, or is about to commit, a crime.

In 1968, however, in a case called Terry v. Ohio, the Court, in an opinion by Chief Justice Earl Warren, carved out a carefully limited exception to the probable cause requirement, holding that a police officer can constitutionally “stop” an individual on the street for questioning if the officer has “reasonable grounds to suspect” that the person has committed, is committing, or is about to commit a crime, and that the police officer can constitutionally “frisk” that person for weapons if he has “reasonable grounds to suspect” that the individual is “armed and presently dangerous.”

The Court was fully aware that this was a constitutionally precarious decision, for it authorized “substantial interference” with the liberty and dignity of the individual by police officers whose judgment will naturally be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.'” Moreover, the Court acknowledged that this practice could very well “exacerbate police-community tensions in the crowded centers of our Nation’s cities.”

Nonetheless, Chief Justice Warren held that the practice of stop-and-frisk, if carefully administered and implemented, could serve important law enforcement goals and was therefore not an “unreasonable search and seizure” in violation of the Fourth Amendment.

In her decision in Floyd, Judge Scheindlin found that the New York Police Department had used stop-and-frisk an astonishing 4.4. million times between 2004 and 2012. After carefully scrutinizing the Department’s use of this practice, she concluded that the activities of the Department violated not only the Fourth Amendment, but also the provision of the Fourteenth Amendment guarantee all persons “the equal protection of the law.”

Judge Scheindlin found that in 88 percent of these stops, the individual was innocent of any wrongdoing; that in 98.5 percent of the frisks, no weapon was found; that 83 percent of the Department’s stop-and-frisks were directed at blacks and Hispanics, even though blacks and Hispanics make up only 52 percent of the population; that the police were 40 percent more likely to use force when dealing with blacks and Hispanics than when dealing with whites; and that the officers were 40 percent more likely to find weapons and 28 percent more likely to find contraband when they frisked whites than when they frisked blacks and Hispanics.

Judge Scheindlin therefore held that, although the use of stop-and-frisk is constitutionally permissible if it is undertaken in accord with constitutional requirements, the New York City Police Department had in fact employed this practice in a manner that blatantly violated both the Fourth Amendment and the Equal Protection Clause of the United States Constitution.

A decision like the one in Floyd illustrates why we need a strong and independent federal judiciary. For most New Yorkers, the Police Department’s stop-and-frisk policy seemed something to applaud. It helped bring down crime and made the City safer. Moreover, most New Yorkers knew to a moral certainty that they themselves would never be subjected to the indignity and public humiliation of a stop-and-frisk. So, why not have such a policy?

The American judiciary exists, first and foremost, to protect the constitutional rights of those who are not in the majority. It exists to ensure that our government treats all of us with respect. It exists to protect the rights of the disadvantaged, the oppressed, the powerless and the despised, even when disadvantaging them advantages the rest of us.

Three cheers for Judge Scheindlin. She is what the American judicial system, at its best, is all about.

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by | August 13, 2013 · 11:34 pm

Email and the Fourth Amendment

Almost nothing on the internet is as private as people often believe it to be. Many people imagine their email conversations as similar to spoken conversations, where the information stays between the participants of the conversation unless one or both should choose to disclose it. However, in actuality, an email conversation, like almost anything else that a user transmits via their Internet Service Provider (ISP) is nowhere near as private as a conversation that takes place in person.

            Data transmitted by a particular ISP (such as Verizon or Comcast) is stored on the ISP’s servers. Although the privacy agreements of the ISP commonly state that the employees of the ISP will not view personal content, the information transmitted is usually stored, scanned, and can be voluntarily disclosed to the police or subpoenaed in a case against the internet user. Sometimes the information is kept for months or even years, meaning that any conversations that take place via the internet may include three viewers- the sender, the receiver, and the ISP. The same is true for email servers, such as Yahoo or Gmail, which also store a person’s email on their servers, meaning that the email service also has the power to “eavesdrop” on the conversation. Finally, school, office and home networks can all be set up to store all of the information transmitted through the network, which creates a fifth potential eavesdropper for any online communications.

            Most troubling of all, because the advent of communication and networking technology is so new, courts have yet to clearly define whether a person’s email, chat and search history is protected by the Fourth Amendment at all. Some courts have found that there is a Fourth Amendment protection for “content based” communications, such as personal email, but other courts have found that there is not. Ultimately, “[T]he extent to which the Fourth Amendment provides protection for the contents of electronic communications in the Internet age is an open question.” Quon v.  Arch Wireless Operating Co., 529 F.3d 892, 904 (9th Cir.  2008).

    Until this issue is fully resolved in the law, it is important to remember that any data transmitted online could potentially be saved and stored by one or more third parties. If you have any questions or concerns about this, please feel free to contact our office for a free initial consultation.

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