On September 17, 2014, Terrence Byrd and a companion, Latasha Reed, went to a Budget car rental affiliate in Wayne, New Jersey. Ms. Reed rented a Ford Fusion, signing an agreement that she had a valid driver’s license and had not been involved in certain traffic related offenses during the previous three years. An addendum to that agreement imposed the following restrictions as to who could operate the vehicle: the renter’s spouse, a co-employee while conducting company business, or anyone who appears with the renter and signs an Additional Driver Form.


Terrence Byrd was not listed as an authorized operator of the Ford Fusion.


Ms. Reed nonetheless gave Byrd the keys to the Fusion at the Budget rental location. He returned to his home in Patterson, New Jersey where he loaded his personal belongings into the trunk of Fusion and headed toward Pittsburgh, Pennsylvania.


About halfway to Pittsburgh, just outside of Harrisburg, Pennsylvania, Byrd passed State Trooper David Long who was parked in the median of Interstate 81. In a May14, 2018 decision, the U.S. Supreme Court said Trooper Long became suspicious of Byrd because “he was driving with his hands at the ‘10 and 2’ position on the steering wheel, sitting far back from the steering wheel, and driving a rental car.” The trooper knew the Fusion was a rental car because of the barcode on one of its windows.


Grasping Steering Wheel at “10 and 2” Suspicious


Once thought to be the best hand position on the steering wheel, the 10-2 has fell out of favor with AAA, the National Highway Traffic Safety Administration, and law enforcement as the safest way to drive. The 9-3 and 8-4 are now considered the preferable hand positions on the steering wheel for the safest driving.


There is no indication in the Supreme Court decision or the lower federal appeals court decision about what Byrd’s 10-2 hand position had to do with triggering Trooper Long’s suspicions. The federal appeals court did state that Byrd sitting reclined in the driver’s seat “in an unusual degree” was a factor in creating the trooper’s suspicions.


Pretext Stop


Whatever the reasons for his suspicions, legitimate or not, Trooper Long pulled his vehicle onto the interstate and followed Byrd long enough to determine that he had violated state law by staying in the passing lane too long. The trooper pulled Byrd over. As the trooper approached the passenger side of the vehicle, he noticed that Byrd was “nervous” and his hands were “shaking” as he retrieved his driver’s license.


Besides his license, Byrd also gave Trooper Long the rental car agreement, telling the officer a friend had rented the Fusion.  The trooper returned to his vehicle to run a driver’s license check when he noticed that Byrd’s name was not an approved driver on the rental agreement. At that point another State Trooper, Travis Martin, arrived at the scene.


Trooper Martin decided to chat with Byrd while Trooper Long did the driver’s license check.


“No Expectation of Privacy”


When Martin walked back to Long’s vehicle, the trooper informed Martin that Byrd’s name was not on the rental agreement, to which Martin replied, “yeah, he has no expectation of privacy.”


The driver’s license check revealed Byrd had prior convictions for weapons and drug violations and had an outstanding probation violation warrant in New Jersey. Long contacted New Jersey authorities who said they did not want Byrd arrested for extradition on the probation violation.


That did not deter the Pennsylvania troopers. They walked back to Byrd’s vehicle and instructed him to get out the vehicle, at which time they patted him down. The troopers then asked Byrd if he had anything illegal in the Fusion. He said he did not. The troopers asked for consent to search the vehicle. At that point, Byrd said there was a marijuana cigarette in the car that he would retrieve for them. The troopers again asked for consent to search the vehicle, this time telling Byrd they really did not need his consent because his name was not on the rental agreement.


No Consent, No Warrant to Search


Not waiting for consent, the troopers proceeded to search the Fusion. In the trunk, Trooper Martin found a laundry bag containing body armor. He walked back toward Byrd, telling him that he was under arrest. Byrd fled. The troopers quickly caught up with and apprehended Byrd who told them there was heroin in the car. An additional search was conducted during which the troopers discovered 49 bricks of heroin.


Byrd was indicted for possession with intent to distribute heroin and possession of body armor by an unauthorized person. His attorneys filed a motion to suppress the heroin and body armor as fruit of an unlawful search. The federal district trial court and the Third Circuit Court of Appeals both reached the same conclusion: the search was legal because Byrd did not have a constitutional expectation of privacy in the Fusion because his name was not on the rental agreement.


The direct constitutional issue before the Supreme Court, therefore, was this: “One of the main rights attaching to property is the right to exclude others” and “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectations of privacy by virtue of the right to exclude.”


Within that constitutional concept, the question the Supreme Court had to answer was whether the above long-recognized constitutional right applied to a rental car whose driver did not have his or her name on the rental agreement.


In a 21-page unanimous decision, the court answered that question this way:


“The Court sees no reason why the expectation of privacy that comes from lawful possession and control and the attendant right to exclude would differ depending on whether the car in question is rented or privately owned by someone other than the person in current possession of it, much as it did not seem to matter whether the friend of the defendant in Jones owned or leased the apartment he permitted the defendant to use in his absence. Both would have the expectation of privacy that comes with the right to exclude. Indeed, the Government conceded at oral argument that an unauthorized driver in sole possession of s rental car would be permitted to exclude third parties from it, such as a carjacker.”


Right to Exclude Includes Expectation of Privacy


The right to exclude others from property—whether from a home, an apartment, or a vehicle (rented or otherwise)—carried the day in this case.


However, the Court remanded the case back to the trial court for a hearing at which the Government will have an opportunity, first, to present its argument that Byrd had no more expectation of privacy in the rented vehicle than a car thief; and, second, even if Byrd enjoyed the expectation of privacy, there was independent probable cause to justify the ensuing search.


In essence, the Byrd decision established that while law enforcement may stop a rented vehicle for a traffic violation, they cannot search the vehicle absent the driver’s consent or probable cause to believe there is contraband in the vehicle. While a10-2 hand position and leaning back in the driver’s seat, along with a traffic violation, is sufficient to stop a rented vehicle, those factors alone are not sufficient probable cause to justify a search of that vehicle.