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Last week, the United States Supreme Court came down with a fantastic case, Byrd v. United States, 584 U.S. __ (2018)(that is a legal citation by the way). I know you are asking, “What does this mean for me the average person? Well, this means that the Fourth Amendment is still alive. We hear so much about the Second Amendment and our right to bear arms and firearms, firearms, firearms. I am not going to get political, but I do strongly believe in the Second Amendment; however, I wish people would start paying attention to all of our rights guaranteed in the Constitution not just one of them. You know why? Although you do not believe me, one day, yup, one day, the government may enter your home or your car and conduct an illegal search. This is where the Fourth Amendment comes into play, the one that guarantees your right to be free from unreasonable searches and seizures. Yes, that important one, the one the Founders wrote due to their concerns about the Crown entering homes without a search warrant.

William Pitt said the following two hundred years ago: “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter – all his force dares not cross the threshold of the ruined tenement!” William Pitt, Speech on the Excise Bill (1763) (quoted in Miller v. United States, 357 U.S. 301, 307 (1958). I know you really want to hear all about William Pitt, but honestly only this quote was important for purposes of this topic.

Now, here is the thing, William Pitt said that about houses, but he did not know anything yet about automobiles since they were not in existence. Did you know that your car does not have as much protection as your house when it comes to the Fourth Amendment? Of course, in 1788, William Pitt had no clue that one day they would make a Tesla that is almost fully automated, can pick up your laundry and a chai tea latte all while you are getting a haircut. Had he known, he may have also mentioned that the King of England could not enter a car even if it was a Yugo, but I do not want to digress. If you are under 30 years of age, you probably do not know what a Yugo is so just jump over to Google for a minute to get a laugh.

Back to the Byrd decision, so Mr. Byrd borrowed his girlfriend’s rental car in which she was the only authorized driver. While he was driving her car on a Pennsylvania Highway, the police stopped the vehicle and found multiple pounds of heroin and body armor, and he is obviously arrested. Byrd’s lawyers filed what is known as a motion to suppress evidence in violation of the Fourth Amendment. Unfortunately, the Court in Pennsylvania would not even entertain his motion ruling that Byrd did not have what is known in legal jargon as a “reasonable expectation of privacy in the rental car.” Why? Because his name was not on the rental agreement. Had they been married the Court’s ruling would have been different.

The United States Supreme Court reversed the Pennsylvania Court’s decision ruling that even unauthorized, unlisted drivers of a rental car have a reasonable expectation of privacy in a rental car. They may not always have a reasonable expectation of privacy in a rental car but in this situation, Byrd had one. For example, if Byrd stole a car, or stole this rental car, he would not expect to have a reasonable expectation in that stolen vehicle. The Supreme Court did sent this case back (known as a remand) to Pennsylvania to determine whether Byrd used the girlfriend as a straw man or straw woman to obtain that rental. What does that mean in plain English? It means she told the rental car company she was the only one who would drive it even though she knew Byrd would be the real driver.

Interestingly, this opinion not only goes through Fourth Amendment analysis but the concurrence hits upon property rights as well. For the non-lawyers, a concurrence is an opinion by a justice who agrees with the outcome but for different reasons than the majority. Here, Justice Thomas and Justice Gorsuch both agree with the conclusion; however, they analyzed it from a property rights perspective intersecting with Fourth Amendment jurisprudence. By the way, I find this significant because a big decision is looming any day now and it is United States v. Carpenter, which has to do with cell site location information. At that oral argument, Justice Gorsuch seemed to lean the way of the defense from a view point that cell data may fall under a theory of personal property rights. This is a blog for another day when that case comes out. By the way, I have a big case on appeal now in the Georgia Supreme Court and if Carpenter is decided favorably, it will really help my case.