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University of Chicago Law School




No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment opinion for a majority of the Court, authored an opinion in favor of a criminal defendant. In Byrd v United States a unanimous Court rejected the government’s argument that unauthorized drivers always lack an expectation of privacy in a rental car and thus can never challenge a police search of the car. Byrd was driving a rental car in violation of the rental agreement but with the permission of the renter; the police searched the trunk of the car, allegedly without consent or probable cause, and found heroin and body armor. The Court in Byrd held that the search was unlawful because “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.”

This article takes a closer look at Byrd to examine what it means for Fourth Amendment doctrine. It demonstrates that the Court’s holding is not as simple as it seems, and I consider whether the crucial elements of Justice Kennedy’s analysis affect the logic of prior precedents and the Court’s understanding of standing under the Fourth Amendment. While Justice Kennedy wants us to think that the reasoning and holding in Byrd is obvious, his opinion relies on property interests and societal norms that are hardly evident. Despite what Byrd says (and some scholars urge), property rights should not control the meaning and scope of the Fourth Amendment.

The Court could have reached the same result in Byrd without relying on property interests or debatable social norms. Police cannot search a motorist’s vehicle unless probable cause exists that the vehicle contains evidence of criminality. If Byrd’s operation of the vehicle was not a crime, why should he not have the same Fourth Amendment rights as other lawful drivers? The Court could have ruled simpliciter that unauthorized drivers (who are not car thieves) occupy the same seat as other drivers: police cannot search their vehicles without probable cause. Period. No need to ponder “property concepts” like a right to exclude third parties. If there is no probable cause, there can be no search. That approach would have avoided future confusion for police, judges, and the public. And it would have promoted a traditional view of the Fourth Amendment: police should not have unbridled discretion to invade the privacy of motorists.

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