Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?1
Byrd was driving on a highway and was pulled over for driving in the left lane instead of passing only. The other reason for pulling Byrd over, noted at oral arguments, was not driving with his hands at 10 and 2, which seemed suspicious.
Noticing it was a rental car, the officers asked him for his license and rental agreement. The rental agreement did not list him as an authorized driver. The rental agreement that said that additional drivers were allowed only “with prior written consent.” They asked him if they could search his car, but told him they didn’t need consent because it was a rental.
Byrd says he objected, but the officers searched the car anyway. They found 49 bricks of heroin and a flack jacket. The Third Circuit held that Byrd had no reasonable expectation of privacy in a rental car he had no authorization to drive. The Fifth Circuit4, the Fourth Circuit3, and the Tenth Circuit2 also agree with the Third Circuit that someone like Byrd has no standing. The Sixth Circuit1 splits and holds that there may be circumstances where a driver of a rental car may have reasonable expectation of privacy.
At oral arguments, Gorsuch again plays with the idea that maybe a reasonable expectation of privacy is not the best way to look at these cases, but instead reasonable searches should be done on a property-ownership approach to privacy.