Unreasonable Searches?

This post is written by Associate Editor Josh Kemme. Opinions and views expressed herein are those of the writer alone.

Imagine that you and your family are going on vacation and decide to lease a rental car for the trip. Dad fills out the rental agreement for the vehicle (which states that only he has permission to drive it), you pack up the trunk, and soon you are on your way to paradise. After arriving at your vacation destination, your father gives you the keys and tells you to park the car. While looking for a parking spot, you unintentionally drive through a stop sign, and a vigilant police officer pulls you over. The officer notices your nervousness (as you are afraid of the police) and asks to search the vehicle, which is still packed with your family’s belongings. Not wanting to have these personal belongings disturbed and searched through, you decline the officer’s request. Does the officer still have the authority to search the rental vehicle?

Because you did not sign the rental agreement for the car and are not listed as an authorized driver, the answer to this question depends in large part upon where your family decided to vacation. There exists a current split in both federal and state courts as to whether the driver of a rental car has a Fourth Amendment reasonable expectation of privacy in the vehicle (and thus the power to withhold consent to a search)[1] when he or she is not named in the rental agreement.[2] Two federal circuit courts of appeal and four state supreme courts are of the view that an unlisted driver of a rental vehicle may object to a search of that vehicle so long as he has received permission to drive the car from the true renter (Dad in this case).[3] Meanwhile, four federal circuit courts and two state supreme courts have taken the opposite approach, holding that unlisted drivers generally have no reasonable expectation of privacy in the rental vehicle, even if they have gained permission from an authorized driver to use the vehicle.[4]

The Eight and Ninth Circuit Courts as well as the state high courts of Nebraska, New Mexico, Texas, and Oklahoma, believe that a person who is not authorized to drive a rental car gains a reasonable expectation of privacy in that car, and may object to a search, when he or receives permission to drive it from the true renter.[5] This expectation of privacy exists in part because, by giving consent, the renter is authorizing the driver to use the vehicle as the renter himself would.  Once permission is received, an unlisted driver may drive the vehicle as if he were the true renter, and he may object to requests by the police to search the vehicle. These courts are of the view that a renter’s consent creates in the unlisted driver a possessory interest in the vehicle as well as the right to exclude unwelcome passengers.[6]

On the other hand, the federal appellate courts of the Third, Fourth, Fifth, and Tenth Circuits, and the high courts of Montana and Arkansas, have found that an unlisted driver can almost never obtain a reasonable expectation of privacy in a rental car, meaning that the police can search the vehicle regardless of whether the driver consents.[7] In these jurisdictions, only the actual renter (the person who signed the rental agreement) may claim an expectation of privacy in the rental car, as they are the only persons who have received authorization to drive the vehicle from the rental company.  Because only the renter has permission to drive the car, the renter has no legal authority to allow another person to operate the car or to empower him to exclude others from the vehicle.[8] Because an unlisted driver has no authorization to drive the rental car, he can claim no expectation of privacy in the vehicle. Thus, in these jurisdictions, a driver has no right to challenge the search of a rental car by the police when he is operating it without express authorization from the rental company.[9]

At long last, it appears the Supreme Court is prepared to solve this current federal and state court split in the case of Byrd v. U.S.[10] Terrence Byrd was driving a rental car that his girlfriend had signed for and had given him permission to drive when he was pulled over by State Troopers on a Pennsylvania interstate highway.[11] Unfortunately for Byrd, his traffic stop occurred in the Third Circuit’s jurisdiction, meaning that he had no power to object to the officers’ search of the vehicle. The search ultimately led to the discovery of copious amounts of heroin in the rental car and Byrd was subsequently convicted.[12] In affirming Byrd’s conviction, the Third Circuit acknowledged the current split in authority regarding an unauthorized driver’s privacy expectations and ability to object to searches, but found itself bound by past precedent.[13] Byrd thereafter petitioned to the United States Supreme Court.

In granting Byrd’s petition for certiorari, the Supreme Court has finally decided to provide some clarity to a question that has been splitting both federal and state court authorities. However the Court rules, the impact of its holding will effect more than just those unlisted drivers transporting illegal contraband in their rental cars. Officers conduct vehicle searches on both the innocent as well as the guilty, with guilt often being determined only after the search occurs. It will be interesting to see how the Court decides, especially with the Holidays and vacation season nearing. In the meantime, the reader may want to think twice about offering to drive the family rental car if you are not listed on the vehicle rental agreement. You might just end up with a very unhappy family if you don’t drive too carefully.


[1] See Minnesota v. Carter, 525 U.S. 83, 88 (1998) (“In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable”).

[2] United States v. Kennedy, 638 F.3d 159, 165- 67 (3d Cir. 2011).

[3] Petition for Writ of Certiorari at 12, Byrd v. United States, 679 Fed.Appx. 146 (3d Cir. 2017) (No. 16- 1371).

[4] Id.

[5] Id.

[6] United States v. Thomas, 447 F.3d 1191, 1198-99 (9th Cir. 2006).

[7] Petition for Writ of Certiorari at 15-17, Byrd, 679 Fed.Appx. 146 (3d Cir. 2017) (No. 16- 1371).

[8] Brief for the United States in Opposition at 7, Byrd v. United States, 679 Fed.Appx. 146 (3d Cir. 2017) (No. 16-1371).

[9] Id.

[10] United States v. Byrd, 679 Fed.Appx. 146 (3d Cir. 2017), cert. granted, Byrd. U.S., — S.Ct. —-, 2017 WL 2119343 (Mem)

[11] Id. at 148.

[12] Brief for the United States in opposition, supra note 8, at 3. The officers also found body armor in the trunk. Id. Byrd was charged with and convicted of possession of heroin with intent to distribute as well as possession of body armor by a prohibited person. Id.

[13] Byrd, 679 Fed.Appx. at 150.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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