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Saturday, December 16, 2017

Byrd v. United States and the Relationship Between Standing and Consent

I previously posted about Byrd v. United States, a Fourth Amendment case that the Supreme Court will be deciding this Term.  The issue in Byrd is whether a non-authorized driver of a rental car has standing to raise the exclusionary rule after an unlawful search.  Byrd’s fiancée rented the car and she alone was authorized to drive it but she loaned the car to Byrd, who was subsequently stopped for a traffic infraction.  Police then searched the car, finding evidence incriminating Byrd in a federal drug offense.  The case is in the Supreme Court on the assumption that the search was unlawful and the only question is whether Byrd has standing to assert that the items found pursuant to the search must be suppressed.

The case points up an interesting connection between the Court’s standing jurisprudence and its third-party consent jurisprudence.  The standing question, at least where a search is concerned, is whether the person asserting the exclusionary rule had a reasonable expectation of privacy (REOP) in the place searched.  Indeed, the Court has at least formally eschewed the idea of “standing” as a separate topic and has admonished courts and litigants to analyze such issues purely in terms of the Fourth Amendment claimant’s REOP.  (Despite this, everyone still speaks of “standing”).

Interestingly, the concept of REOP also sneaks into the Court’s third-party consent cases, which nearly always involves situations in which the police have undoubtedly undertaken a search and the only question is whether A’s consent to search is binding upon B.   The Court has decided those cases by looking at common social understandings regarding shared privacy in places, an analysis that looks a whole lot like its REOP cases, which govern whether a search has occurred at all.  For example, in Georgia v. Randolph, the court held that one co-occupant’s consent to search by a police officer was trumped by another present co-occupant’s objection, rendering the consent invalid as to the objecting co-occupant.  It relied heavily on common social understandings:  what would ordinary people do in the face of one occupant’s consent and one occupant’s objection to entry?

The Court has instructed that the validity of third-party consent depends upon whether (1) the third party had authority to consent in her own right and (2) whether the person asserting a Fourth Amendment violation assumed the risk that the third party would consent.  Generally, though, the Court’s cases have focused on the second element because they have involved situations in which the third party undoubtedly had the authority to consent to a search on her own behalf:  typically, as in Randolph, they involve co-occupants of premises.  Thus, whether the third party has a sufficient connection to the place searched to have authority to consent is an area that is undertheorized.  For example, does a minor child or an overnight guest at a premises have authority to consent to a search of all or part of the premises?

There is a kinship between standing and third-party consent, given that both use as their touchstone social custom and usage that form the backbone of the REOP standard.  Indeed, Randolph relied in part on Minnesota v. Olson, a standing case.  The question in both areas appears to be whether an individual has a sufficient connection to the place searched to, on the one hand, object to an unlawful search by the police or, on the other hand, bind a third party by consenting to a search by the police.  As Justice O’Connor wrote in her separate opinion in United States v. Karo, “surely a homeowner cannot simultaneously have so little interest in a container that his consent to its search is constitutionally ineffective, and have so great an interest in the container that its search violates his constitutional rights.”  Similarly, Justice White wrote in his dissent in Rakas v. Illinois:  “If a nonowner may consent to a search merely because he is a joint user or occupant of a `premises,’ then that same nonowner must have a protected privacy interest.  The scope of authority sufficient to grant a valid consent can hardly be broader than the contours of protected privacy.”

The upshot is that, if I am correct about this connection, consent issues can be resolved by reference to the law of standing and vice-versa.  As Justice O’Connor put it in her separate Karo opinion:  “Standing to object to [a] search . . . and power to give effective consent to the search[] should go hand in hand.”  That is to say, for example, because the Court held in Olson that overnight guests at a premises have standing to assert the exclusionary rule based on an unlawful search of the premises, it stands to reason that the same overnight guest has authority to consent to a search of the premises (though that authority might, as in Randolph, be trumped by the objection of someone with an equal or greater interest in the property).  By like token, because the Court in Minnesota v. Carter denied standing to someone on the premises for only a few hours for a purely commercial purpose with no prior relationship to the premises, such a person would also lack authority to consent to a search of the premises (whether police might reasonably believe that such a person had authority is, of course, a separate issue).

Let’s apply this to Byrd.  Assume hypothetically that Byrd has manifested consent to a search of the car and the police found evidence that incriminated his fiancée in a crime, and the fiancée subsequently moved to suppress on the ground that Byrd had no authority to consent to a search of the car that would be binding as to her.  I think her claim would and should be roundly rejected.  When she loaned the car to Byrd to use in her absence, she effectively gave him full authority to use the car, including the authority to allow others to enter, unless she specifically withheld that authority.  That, it seems to me, is the common understanding among those who lend and borrow cars.  And I see no reason why that would not hold true even though Byrd was not authorized by the owner of the car to use it.

I have found only one court of appeals case to address this particular issue, United States v. Hunter, a 2011 Tenth Circuit case cited in the scholars’ amicus brief on behalf of Byrd, which – full disclosure – I signed onto.  There, as in Byrd, a rental car was stopped for a traffic infraction and the driver was not authorized by the rental agreement to drive the car.  Unlike in Byrd, the lessee, Hunter, was sitting in the passenger seat.  And unlike Byrd, the driver in Hunter consented to a search.  The court upheld the reasonableness of the search, rejecting Hunter’s argument that the unauthorized driver was incapable of giving valid consent to search.  One could argue that Hunter’s silence in the face his friend’s consent itself constituted tacit consent on his part, or at least was reasonably so interpreted by the police officer.  But the court went further and wrote that “there is no legal authority which expressly states that only the named person on a rental car agreement can authorize a search of a rented car.”  If Hunter is correct, and I believe it is, then there is an even stronger case that Byrd, who was driving in the absence of the lessee of the car, would have had authority to consent so as to bind the lessee.  And if standing and authority to consent rise and fall together, Byrd ought to be deemed to have standing.

Posted by Michael J.Z. Mannheimer on December 16, 2017 at 09:35 PM in Constitutional thoughts | Permalink


And just the legal definition of " informed consent " ( dictionary of law. com ) here :

informed consent

agreement to do something or to allow something to happen only after all the relevant facts are known. In contracts, an agreement may be reached only if there has been full disclosure by both parties of everything each party knows which is significant to the agreement. A patient's consent to a medical procedure must be based on his/her having been told all the possible consequences, except in emergency cases when such consent cannot be obtained. A physician or dentist who does not tell all the possible bad news as well as the good, operates at his/her peril of a lawsuit if anything goes wrong. In criminal law, a person accused or even suspected of a crime cannot give up his/her legal rights such as remaining silent or having an attorney, unless he/she has been fully informed of his/her rights.

here :



Posted by: El roam | Dec 17, 2017 7:38:12 PM

Just an illustration / definition , from ethical medical code ( human subjects research ) about " informed consent " , here :

" what is informed consent?

Informed Consent is a voluntary agreement to participate in research. It is not merely a form that is signed but is a process, in which the subject has an understanding of the research and its risks. Informed consent is essential before enrolling a participant and ongoing once enrolled. Informed Consent must be obtained for all types of human subjects research including; diagnostic, therapeutic, interventional, social and behavioral studies, and for research conducted domestically or abroad. Obtaining consent involves informing the subject about his or her rights, the purpose of the study, the procedures to be undergone, and the potential risks and benefits of participation. Subjects in the study must participate willingly. Vulnerable populations (i.e. prisoners, children, pregnant women, etc.) must receive extra protections. The legal rights of subjects may not be waived and subjects may not be asked to release or appear to release the investigator, the sponsor, the institution or its agents from liability for negligence. The Informed Consent is described in ethical codes and regulations for human subjects research. The goal of the informed consent process is to provide sufficient information so that a participant can make an informed decision about whether or not to enroll in a study or to continue participation. The informed consent document must be written in language easily understood by the participant, it must minimize the possibility of coercion or undue influence, and the subject must be given sufficient time to consider participation."

End of quotation :

So , not that precise analogy should be drawn to fourth amendment consent ( but pretty close ) yet , it does illustrate , how problematic is it , to claim , that virtual , remote consent of third party absent , is really , an informed one , voluntary one .

here :



Posted by: El roam | Dec 17, 2017 7:01:11 PM

I don't agree with the premise that standing and consent to go hand in hand but then I am one of those people who think that the court's jurisdiction jurisprudence is something of a mess. Properly understood standing relates to the power of a person to bring a case in the judiciary whereas consent speaks to the power of a person to authorize an action by the executive. There is no good reason to link those two separate concepts which concern different actors with different needs and agendas. O'Conner's statement that, “Standing to object to [a] search . . . and power to give effective consent to the search[] should go hand in hand.” confuses two separate lines of inquiry. What O'Conner should have said is that in order for a person to have standing to sue over search that person must have had power to consent to a search. Which is to say that the court will not entertain a case in this area of law unless the court is willing to recognize the plaintiff has a REOP in the underlying search. Which is another way of saying I do not see the standing and consent going hand in hand, I see them as going hand in glove.

Posted by: James | Dec 17, 2017 4:26:26 PM

"Common social understanding" sounds a lot like "original public understanding" in Heller, which led to the controversial idea that the bill of rights protects individual civilian rights rather than collective militia rights.

Lets pray that the court doesn't say any of the other amendments also protect individual civilian rights or who knows what kind of culture america will have next.

Posted by: Scalia's Rock and Hard Place | Dec 17, 2017 12:37:19 PM

So what, if any, kinship does the "common social understandings regarding shared privacy" test (applicable to standing & third-party consent cases) have with respect to the third-party doctrine (and "search"/REOP) question before the Court in Carpenter?

It seems to me that, as modified to read "common social understandings regarding shared privacy" IN PAPERS/EFFECTS (in addition to "places"), the test might play a key role in Carpenter.

Do cell phone users (as a group) have a common social understanding that (1) cell phone location data is tracked by their provider?; and (2) they have a shared privacy interest (shared with the provider) in CSLI generated by their use of their phone?

Posted by: legalnerd | Dec 17, 2017 12:22:26 PM

Thanks for that interesting post ,crazy issues indeed , yet , notwithstanding the specific case of Byrd , I find it pretty unjust , that REOP and apparent societal common perceptions and understandings , would be introduced to the discussion , while ignoring on the other hand the issues of : free will or real voluntary consent ( not only apparent consent by : yes or no , but out of free will one ) and relying so solely as quoted that :

“surely a homeowner cannot simultaneously have so little interest in a container that his consent to its search is constitutionally ineffective, and have so great an interest in the container that its search violates his constitutional rights.”

End of quotation :

This is because of the very fact , that as explained in Georgia v. Randolph , such consent is influenced by property law , but not controlled by its rules . So , a person may have interest , and great one , in his property of course , but , has little to do , with voluntary consent and REOP at first place . Many factors , can be dominant here , and that can only " online " be considered and determined . So , a co – occupant , can't come at the shoes of the " online " occupant . A consent must be based on free will , free will , that is to say , that you do and can understand the consequences and outcome of your choice . So , you must be aware " online " to all circumstances and derivations thereof , in order to give a free will one ( otherwise , why to ask for consent ?? why police officer needs to inform the suspect about implications , that refusal for example , wouldn't turn against him in court ) .

So , it is absolutely individual consent , and deviates from property issues !! How a " remote " or " virtual " occupant or owner , can have REOP , while not present , and chaotic and crucial " online " elements , are gone missing ??

When we reach , an " overnight " or contemporary " occupant " that is not less complicated ( in terms of free will ) but I fall short of course ……


Posted by: El roam | Dec 17, 2017 8:53:58 AM

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