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The Police Power to Search Your Car:  SCOTUS May Change Things in Byrd and Collins

Things change. And in criminal law, sometimes things change because the Supreme Court of the United States changes them.

Last month, we got a heads up that SCOTUS may be changing the law that controls when a police officer can search someone’s car.   That’s because the High Court started its new term right off the bat with two big criminal cases:  Collins v. Virginia and Byrd v. United States.   Both deal with interpretation of the Fourth Amendment.

Note:  We’ve already discussed another big criminal case that’s coming down from SCOTUS in Carpenter.  See “Do Police Need Search Warrants to Access Digital Information?  The Importance of Carpenter v. United States.”


Police and Your Car

First, some backstory.  SCOTUS has already made it clear to law enforcement in this country that under the Fourth Amendment’s protections against unreasonable search and seizure, things are different when the police want to search your home versus your car.

Whether you agree or not, SCOTUS has ruled that there is less of an expectation of privacy in a motor vehicle than in a dwelling.  If you are cruising along in a car, truck, minivan, or recreational vehicle, then the federal constitution privacy protections provide you less protection.

To the police officer who pulls someone over in Plano or Denton or Fort Worth, this means he can search your vehicle as long as he has “probable cause” to believe that there’s evidence of a crime in the vehicle.  If that same police officer is standing on your doorstep with the same suspicion, then he has to get a search warrant where a judge reviews his “probable cause” belief and confirms it before your privacy can be invaded.

This is called the “automobile exception” to his need to get a search warrant.

Now, here’s what is happening.

Fourth Amendment

Your right to privacy is balanced against the right of law enforcement to investigate crime and prosecute those who violate the laws through search and seizure under the Fourth Amendment to the United States Constitution, which states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Collins v. Virginia

This case comes out of the Virginia courts (790 SE2d 611), with Petition for Writ of Certiorari filed on February 21, 2017 (read it here).

The issue in Collins v. Virginia is thisWhether the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

In Collins, the story began when Ryan Collins was at his girlfriend’s house.  Officers with the Albemarle County Police Department suspected Collins of evading them in a couple of high speed chases on his motorcycle.  So, after surfing around on Facebook and discovering the girlfriend’s residence on Collins’ Facebook page, they went over to the girlfriend’s house.

There, they confirmed what looked to be a motorcycle covered by a tarp, parked in her driveway behind a car.  It was just like they had seen in one of the Facebook photos.

The police officer went up the driveway, onto her property without permission, and pulled up the tarp so he could run the bike’s VIN (vehicle identification number).   He ran the VIN and it came back to a motorcycle reported stolen up in New York State.

So, the police banged on the door, and arrested Collins for stealing the motorcycle (“possession of stolen goods”).  Then Collins’ criminal defense began.

Among the arguments was the right of the police to trespass on the girlfriend’s property.  Did the officer have a right to walk up the driveway without her knowledge or permission?

The Virginia Supreme Court ruled that the “automobile exception” to the Fourth Amendment applies here, and ruled against Collins.  SCOTUS is reviewing that decision.

If SCOTUS doesn’t reverse the Virginia Supreme Court, then police officers all over the place are going to feel free to trespass and snoop around motor vehicles on private property.  As long as they can argue they’re focused on a vehicle of some sort, then arguably they will feel fine about walking all over someone’s place (including a third party, like the girlfriend here).

Worrisome, isn’t it?

Byrd v. United States

This case comes out of the United States Court of Appeals for the Third Circuit, with Petition for Writ of Certiorari filed on May 11, 2017 (read it here).

The issue in Byrd v. United States is thisA police officer may not conduct a suspicionless and warrantless search of a car if the driver has a reasonable expectation of privacy in the car-i.e., an expectation of privacy that society accepts as reasonable. Does a driver have a reasonable expectation of privacy in a rental car when he has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement?

This story began after Terrence Byrd’s girlfriend rented a car back in 2014.  The Pennsylvania state trooper pulled him over for driving suspiciously.

Three reasons were given for the car being pulled over:  (1) “the operator of the vehicle was driving with his hands in the 10:00 and 2:00 position,” Pet. App. 10a, which is how most of us were taught to drive; (2) “his seat was reclined so that he was not clearly visible through the driver’s side window,” id. (punctuation omitted); and (3) the car was a rental, C.A. App. 88–90. The trooper stopped Byrd for violating a state traffic law requiring drivers to use the right-hand lane whenever possible. Pet. App. 2a; see 75 Pa. Cons. Stat. § 3313(d)(1).  Petition, page 6.

They searched the rental car. They found bad things in the trunk:  heroin, and body armor. Byrd was arrested. His defense began.

The federal appeals court ruled that Mr. Byrd had no expectation of privacy here because he was driving a rental car that he had not rented and in the rental agreement, was not listed as a driver of the vehicle.

Now, if Terrence Byrd had been driving in another part of the country, then things might have been different.  Federal appellate courts have not all agreed with the Third Circuit’s interpretation of Fourth Amendment privacy protections.

Specifically, the Eighth and Ninth Circuits and four state high courts hold that a driver has a reasonable expectation of privacy in a rental car if he has the renter’s permission to drive the car.  Petition, page 12.

So, how much privacy do you get in a rental car?  And how much power do the police have to search a car that you are driving but don’t own and aren’t the “listed driver”?  Depending upon how SCOTUS decides in this case, the police may have a great deal more power when they pull over a vehicle and the driver isn’t the owner or “listed driver.”

Scary stuff.

Oh, and a quick note from Collins:  the police surf social media, too, folks. 


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.” 




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