The United States Supreme Court will soon decide if driving a rental vehicle without being on the rental agreement means the driver surrenders his right to be free from unreasonable search and seizures. The high Court is being asked to decide if the police need a warrant to search a rental car.

In 2014, the Pennsylvania State Police pulled over Terrence Byrd. He was driving a vehicle rented by his fiancée, who also happened to be the mother of his children. The police said Byrd was nervous during the stop and told officers he had some marijuana in the car. The police searched the car without Byrd’s consent.

They told him they didn’t need his consent because the rental agreement did not list Byrd as the renter or as an authorized driver.

The police found heroin in the trunk. Byrd was ultimately sentenced to 10 years in prison.

Byrd’s case made its way to the U.S. Supreme Court when the court of appeals noted that there was a difference of opinion among the various circuit courts concerning the propriety of a warrantless search of a rental vehicle.

Byrd’s written argument submitted to the Supreme Court started like this, “When a person’s fiancée hands him the keys to her car and tells him he may use it, he reasonably expects privacy in the car. She has given him both possession and control over the car, and he reasonably believes that he can exclude strangers and the government from intruding upon his private personal and family possessions stored in the car.”

The Fourth Amendment protects individuals from warrantless searches of homes, businesses, vehicles and persons where there is a reasonable expectation of privacy. The Fourth Amendment is one of the first 10 amendments to the United States Constitution known as the Bill of Rights. In early America, the Fourth Amendment applied only to federal prosecutions. The Fourteenth Amendment, ratified in 1868, made the Bill of Rights applicable to state prosecutions as well.

Attorneys for Byrd argued that his expectation of privacy did not derive from the rental car agreement. Byrd urged the court to consider that he had actual physical control of the vehicle.

If Byrd were carrying a duffle bag over his shoulder, would it matter if his fiancée purchased the bag? Could the police go into the bag if Byrd couldn’t produce a receipt?

The government argued in its brief “The consent of petitioner’s girlfriend could not validly authorize petitioner to drive the car because the rental agreement did not grant her the power to let others drive the vehicle. In fact, the contract expressly advised that ‘permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement.’”

Justice Sonia Sotomayor suggested in response to the government’s argument, “If we rule that someone has no expectation of privacy even when the renter has given it to them, then what we’re authorizing is the police to stop every rental car and search every rental car, without probable cause, that might be on the road.”

According to Adam Liptak of the New York Times, the government argued that criminals often use cars rented by others to transport drugs, victims of human trafficking and unauthorized immigrants.

Liptak acknowledged that allowing the police to search rental cars whenever they pull over an unlisted driver would yield evidence of crimes. Byrd’s lawyers wrote, “But what is expedient for law enforcement is not the test.”

The test is probable cause. Do the police believe the vehicle is involved in some illegality and is there is a threat the vehicle will be moved before the contraband be can be confiscated? This country’s Constitution, and courts, do not permit random searches based on a “hunch.”