Supremes tackle limits of privacy


By David Hejmanowski - Contributing columnist



“The Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

— Justice Anthony Kennedy

“What kind of property interest do individuals need before something can be considered ‘their .. . effec[t]?’”

— Justice Clarence Thomas

Terrence Byrd had a problem. He needed a car, and he knew that his criminal record would prevent any rental car company from letting him rent one. His solution was to have his fiancée go in and rent the car, a Ford Fusion, and then just give him the keys. Of course, this was a massive violation of the rental agreement, but that was by no means the biggest crime he was about to commit.

Byrd then drove the car across the New Jersey/Pennsylvania border where he was pulled over by a Pennsylvania state trooper on I-81. In questioning Byrd, the troopers realized that the car was rented, and that he did not have permission from the rental company to be driving it. Based on that information, the troopers concluded that they had grounds to search the vehicle without consent, and they asked Mr. Byrd to step out of it.

If he didn’t know before, Terrence Byrd certainly realized at that moment that he was in a heap of trouble. That’s because the car was packed full of illegal items. The body armor was certainly concerning, but it was undoubtedly the 49 bricks of heroin that led police to arrest Mr. Byrd. He was charged with a variety of crimes and at his criminal trial, he asked the court to suppress the evidence against him because the police did not have his consent, nor did they have a warrant. Such a search, he claimed, was a violation of the Fourth Amendment to the United States Constitution.

The Commonwealth of Pennsylvania, for its part, fell back on the most basic question in a suppression motion — whether the person seeking to have the evidence suppressed has a “reasonable expectation of privacy” at the time of the search. If not, then they don’t have “standing,” or a basis upon which to ask the court to suppress the evidence.

If you’re walking down the street and bricks of heroin are sticking out of your pockets, you can hardly claim that the police should not be allowed to ask you about them. Similarly, if you rob a bank and decide to hide the money in the shelter house of a public park, you certainly can’t claim that the shelter house is yours and no one else can look in it. In those circumstances, you simply don’t have any expectation that what you’re doing is private.

The trial court in Byrd’s case concluded that he couldn’t expect what was in the rental car to be private since the car wasn’t his, and he wasn’t authorized to have it. The trial court refused to suppress the evidence, and Byrd was convicted and sentenced to 10 years in prison.

The Supreme Court, in a unanimous opinion written by Justice Kennedy, gave Byrd at least a temporary reprieve. The question, the High Court said, was not whether Byrd violated a civil contract by driving the car. After all, a person might violate a contract like that in an emergency situation, or if the renter of the vehicle is intoxicated. The question, rather, was whether the person had a lawful possession of the vehicle in a manner in which they would reasonably expect that they would be free from search.

Justice Thomas, joined by Justice Gorsuch, wrote separately to lament that the parties did not reach a more fundamental question. Thomas pointed out that the Fourth Amendment gives a person a right to free from unreasonable searches of “his own” person, house, papers and effects. He questioned whether Byrd could call a rental car “his own,” and whether the Fourth Amendment should be so restricted. Such a reading would be consistent with the plain language of the amendment, but a far narrower reading of personal privacy than the Supreme Court has traditionally given.

Mr. Byrd is by no means in the clear, however. The case will go back to the lower court to consider several questions, among them whether Byrd having the car in violation of the rental agreement put him in a position no different than someone who had stolen it, and whether the state troopers had probable cause to search the car for other reasons, perhaps because they already had grounds to arrest Byrd and would be searching the car on impound. If either of those arguments survives constitutional review, then Byrd will wind up serving his decade behind bars after all.

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By David Hejmanowski

Contributing columnist

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.

David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.