Sunday, December 10, 2017
Byrd v. United States and Fourth Amendment Search Doctrine
Greetings and thanks for the regular Prawfs for inviting me to guest-blog for December. For those who don’t know me, I teach Criminal Law, Criminal Procedure, and related courses at Salmon P. Chase College of Law at Northern Kentucky University, and I write mostly in Criminal Procedure. Much of my work has been centered around identifying and elaborating upon what I see as a neglected federalism component in the Bill of Rights, particularly the Fourth and Eighth Amendments. In my blogging this month, I will likely focus on some interesting criminal procedure cases pending in the Supreme Court this Term. Of course, everyone is talking about the recently argued Carpenter v. United States, on whether government acquisition of cell site location information stored by cell service providers constitutes a Fourth Amendment search.
But I want to write about some lower-profile cases as well. And I want to start out with one that I think is one of the easier cases this Term, Byrd v. United States (DISCLOSURE: I signed onto a scholars’ amicus brief on behalf of the Petitioner Byrd). Byrd raises the question whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search. Essentially, Byrd’s fiancée rented the car in her own name and she was the only person authorized to drive it. However, she loaned the car to Byrd, who was subsequently stopped for a traffic infraction. There is a factual dispute over whether Byrd consented to a search of the car but the case is in the Supreme Court on the assumption that he did not and, because there was no probable cause to search, the search was presumably illegal. The question, again, is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed. Based on the Court’s case law, the question is essentially whether Byrd, as opposed to the rental car company or the lessee, had a reasonable expectation of privacy (REOP) in the car.
I call this a relatively easy case because, whether one views the REOP standard purely as a measure of widespread societal attitudes, on the one hand, or as more closely related to positive-law concepts, on the other, one should come to the same conclusion. Driving a rental car as an unauthorized driver, I would say, is a fairly common activity. I’ve certainly done it. I think most people would be shocked to learn that as an unauthorized driver, they have no REOP in the car such that any of their personal belongings placed into the car are subject to discovery by anyone who cares to snoop. That, after all, is essentially the test of whether something is a search: are the police doing what any ordinary person could do? If so, then there is no search. If not, then the police need some special dispensation, typically a warrant based on probable cause, or at least some level of individualized suspicion coupled with a good reason to dispense with a warrant.
If we take an approach that hews more closely to positive law, we come to the same conclusion. True, the fact that a driver is unauthorized might result in a breach of the rental agreement. Even that much is unclear, and if it is a breach, it is on the part of the lessee, not the third party to whom the lessee has given permission to use the car. But that is all beside the point. The question is whether the breach of the rental agreement somehow permits yet another party, in this case the police, to enter the car without permission of anyone with a property interest in the car. Again, a search occurs if the police go beyond what any ordinary person could do. So a positive-law approach would ask whether an ordinary person, even one knowing that Byrd was not an authorized driver, would have been justified in entering the car without permission. Phrased that way, the answer seems obvious. Byrd, who had permission of the lessee to use the car, had lawful possession of the car. He thus had a property interest in the car superior to everyone in the world except two people: the owner and the lessee. Anyone else entering the car without permission is likely committing a tort, if not a crime.
Of course, that simply invites the question: a tort or crime against whom? Granted that the lessee had a REOP in the car and would have standing to assert the exclusionary rule, the question is whether Byrd did as well.
But imagine the following scenario. Byrd parks the car on the street and comes back to find a stranger in the car rifling through his belongings. Byrd orders the stranger out of the car but she refuses to budge. Byrd then forcibly ejects the stranger from the car, causing her minor physical injuries. She then sues Byrd for assault. Would Byrd have a good defense? I don’t know the law in Pennsylvania, where this case arose, but I have to imagine that the answer would be yes in every jurisdiction. A person in possession of a chattel, even one with no property interest beyond mere possession, has the privilege to use ordinary physical force to terminate a trespass to the chattel, assuming the trespasser has been ordered to end the trespass. Again, under conventional common-law principles, Byrd, despite his being an unauthorized driver, had an interest in the car superior to every person in the world other than the owner and the lessee, including the police. Accordingly, Byrd has standing whether one focuses on widespread social understandings or on positive law. Indeed, as I argue in my recent piece, “A Unified Approach to Fourth Amendment Search Doctrine,” and will explore in future posts, the property-based trespass approach and the privacy-based expectations approach are really two forms of the same basic standard, because our positive law derives from the same widespread social expectations that are at the heart of the REOP test.
I don't know yet where I come out in Byrd, but I'm not sure I see it as so easy. Here are a few unformed thoughts and tentative reactions.
The issue in Byrd is an application of the the Rakas/Carter/Olson standing inquiry, which boils down to whether the car is sufficiently "yours" to have Fourth Amendment rights in it. But that just depends on whose grant of authority counts: The owner delegates rights only to the named driver, but the named driver then delegates rights he doesn't have to the person searched. The issue is, in effect, whose delegation counts. It's not obvious what the answer is.
You suggest that the issue is whether the police "are the police doing what any ordinary person could do." But I don't think that's the issue. That inquiry strikes me as generally irrelevant to Fourth Amendment law, and it's especially irrelevant in a standing case. Everyone agrees that the police can't violate the Fourth Amendment: The only issue is who has standing to challenge the violation. (I know Rakas tells us we're not supposed to call it standing, but that's what it is, so everyone seems to call it that anyway and I will do the same).
Finally, you say that Byrd had lawful possession of the car, and therefore certain Fourth Amendment consequences follow. But I would want to step back: Did Byrd have lawful possession of the car? It seems to me to go back to the question of who had the right to grant lawful possession. If property owner A gives limited rights to B, and B transfers her rights to C but goes beyond what A gave to B, what rights does C have? It's not obvious to me what the answer is.
Posted by: Orin Kerr | Dec 10, 2017 11:06:50 PM
Michael , just to cite the district judge for illustration , here :
" In this case, when Long approached Byrd’s vehicle, he noted that Byrd was “visibly nervous[,]” “shaking[,]” and had a difficult time obtaining his identification. (Doc. 29-1 at 5). Byrd could not produce a government-issued photo ID, and was driving a vehicle rented in someone else’s name. In addition to an active arrest warrant, Byrd had a criminal history involving drugs and weapons, and had used an alias in the past. All of these factors together constitute reasonable suspicion that Byrd was engaging in sometype of criminal activity….. "
Posted by: El roam | Dec 10, 2017 8:55:27 PM
Michael , I am aware to the narrow dispute in fact ,but what I claim , is that at first place , basically , what counts whether the search was or is lawful , is the drive for it and circumstances taken all together as a whole . So , even if consent has been asked , the main issue , is the search and its lawfulness , not the consent given or not . In this case , it seems that 3 drives or links as I have stated , could suggest, that , consent wasn't necessarily necessary , and good faith has been demonstrated by the police officers ( they didn't have any back mind , concerning the Heroine found , but at random revealed , after having at least to more than some extent , probable cause for delaying and stopping and suspecting something here with that driver ). Basically , you can't put the issue on consent that had been asked , while at first place , it may have been , wrong discretion of the police officer ( to ask for consent ) . Thanks
Posted by: El roam | Dec 10, 2017 8:42:17 PM
You are correct that the initial stop was lawful and -- and I say this as someone who spends a lot of time honking at people going below the speed limit in the left lane -- entirely laudable. That is undisputed. But it is not relevant to whether the search of the car was lawful. That is an entirely separate issue and may be subject to some dispute. But as the case comes to the Supreme Court, we are to assume that the search of the car was unlawful. The issue in the Supreme Court is a narrow one: assuming the search of the car was unlawful, does Byrd have standing to complain about it?
Posted by: Michael J.Z. Mannheimer | Dec 10, 2017 8:07:52 PM
Thanks for that interesting post , it seems just , that you have ignored the very first link , and it is to my best understanding , that he was pulled over allegedly for violating a state law requiring drivers to use the left lane for passing only . So , the first link it seems , was correct and lawful ( not a " fishing expedition" , and affirmed so by the district court ) . Later , they have realized to my best understanding , that there are warrants pending against him ( although not necessitating an extradition ) . So , one may wonder , whether the issue , is , the link between the search in the car , and the 3 links ( not authorized to drive , the initial stop , and the warrants pending ….) . However , they weren't looking for the Heroine found , so anyway , couldn’t be obtained and revealed otherwise ( what can form the basis for the exclusory rule , since , it was apparently in good faith …… ) As such , in that phase , I found the consent given or not , secondary issue . Thanks
Posted by: El roam | Dec 10, 2017 6:06:01 PM