U.S. Supreme Court Backs Orrick Client in Major Fourth Amendment Privacy Case


Orrick’s Supreme Court & Appellate Group today won a significant Supreme Court victory in Byrd v. United States.

Orrick’s client, Terrence Byrd, was driving a car rented by his fiancée when Pennsylvania State Troopers pulled him over and searched the car without obtaining his consent.  Byrd was arrested and later convicted for possession of contraband found in the vehicle.  Byrd argued that the search violated the Fourth Amendment and sought to suppress evidence.  The lower courts concluded, however, that because Byrd was an unlisted driver, he lacked a reasonable expectation of privacy in the car and thus could not invoke Fourth Amendment rights to object to the search of the car.

But the Supreme Court unanimously ruled in Byrd’s favor, closely tracking the arguments of an Orrick appellate team led by partner Bob Loeb. In an opinion authored by Justice Kennedy, the Supreme Court held that the mere fact that a driver is not listed on the rental agreement will not defeat his right to invoke the Fourth Amendment.

The Court agreed with Orrick that the rental agreement, by its own terms, did not purport to void the rental transaction when an unlisted person drove the car.  Further, the Court observed that the rental agreement’s other provisions allocating risk between the renter and the rental company had nothing to do with the expectations of privacy that a driver of an automobile could reasonably have.  Instead, the Court concluded that, that even if a person is not a listed driver, and drove the rental car in violation of the rental contract, he may still lawfully possess the car, have a “right to exclude” others from the car, and have a reasonable expectation of privacy in the car. 

The decision is significant for several reasons.  First, the Court clarified its earlier decision in Rakas v. Illinois, 439 U.S. 128 (1978), explaining that (contrary to the dicta in Raskas) even a passenger can, in some circumstances, have a reasonable expectation of privacy in an automobile.  Second, the decision makes clear that a contract violation (such as a rental agreement) does not, by itself, defeat Fourth Amendment rights.  And, finally, some highway patrols have apparently adopted the unlawful practice of pulling over rental cars in the hope of conducting a warrantless search of the vehicle.  The Court’s decision should put an end to this practice, as the Court has now made clear that a lawful search of an automobile will ordinarily require a warrant or probable cause.

In addition to Bob, the Orrick team included Tom Bondy, Jeremy Peterman, Chas Tyler, Logan Dwyer and Mike Abrams.  Orrick partnered on this case with Heidi Freese and Fritz Ulrich of the Federal Public Defender’s Office of the Middle District of Pennsylvania.