Can police SEARCH your RENTAL car if you are NOT an authorized driver on the rental agreement?

The Fourth Amendment guards “against unreasonable searches and seizures.” U.S. Const. amend. IV. To challenge the legality of a search under the Fourth Amendment, a criminal defendant must prove that he has a “legitimate expectation of privacy” in the item or area searched.  “A person who is aggrieved by an illegal search ... of a third person's premises or property has not had any of his Fourth Amendment rights infringed.” 

To determine whether a legitimate expectation of privacy exists, we look to “concepts of real or personal property law or to understandings that are recognized and permitted by society.” Byrd v. United States, ––– U.S. ––––, 138 S. Ct. 1518 (2018). Applying those principles, the Supreme Court has recognized that a driver in “lawful possession” of a rental car may have such a legitimate expectation of privacy, even if the rental agreement does not authorize that driver to drive the car. Id. at 1531.

To prevail in a Fourth Amendment challenge, the criminal defendant bears the burden of establishing a legitimate expectation of privacy in the searched property, at the time of the search, by a preponderance of the evidence. United States v. Castellanos, 716 F.3d 828, 833–35 (4th Cir. 2013).  Defendant's failure to prove ownership through a title, bill of sale, vehicle registration, or “anything else,” and the failure to prove lawful possession through evidence that anyone “had granted him permission to use the vehicle ... or any other right of any kind to the vehicle.” 

Under Byrd, an unauthorized driver of a rental car only has a legitimate expectation of privacy in a car when (1) they possess the rental car and (2) that possession is “lawful.” 138 S. Ct. at 1531. And here, as in Castellanos, Daniels had the burden of producing evidence that he had possession and that his possession was lawful. Although Daniels' counsel claimed at the suppression hearing and in his briefs that Baldwin allowed him to drive the car, Daniels did not introduce any evidence at the suppression hearing to support that claim—not even a statement of his own to suggest that he had permission. Counsel's unsupported claim is not evidence. Because Daniels did not put forward any evidence that would support his claim that Baldwin let him use the car—or that he “lawfully” possessed the rental car by other means—he fails to carry his burden that he had a legitimate expectation of privacy in the rental car. Thus, his challe

Anton Vialtsin, Esq.
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