A Supreme Court powerhouse filed a petition for certiorari last week challenging a Third Circuit ruling in a vehicle-search case.

Terrence Byrd was stopped by Pennsylvania police while driving a rental car. He was alone in the car, and he was not listed on the rental agreement. Police searched his car, found drugs and body armor in the trunk, and arrested him. Byrd argued that the search violated the Fourth Amendment, but the district court ruled that Byrd had no reasonable expectation of privacy because he was the sole occupant of the car and wasn’t listed on the car-rental agreement.

Following prior circuit precedent that such persons have no expectation of privacy and thus no standing to challenge the vehicle search, the Third Circuit panel affirmed in a non-precedential opinion authored by Eighth Circuit Senior Judge Michael Melloy sitting by designation. The opinion noted that the circuits were split on the issue.

Two days ago, Byrd filed a petition urging the Supreme Court to resolve the circuit split. Counsel of record on the petition is Joshua Rosenkranz of Orrick Herrington, founder of the Brennan Center for Justice and now a prominent Supreme Court litigator. Also on the petition was Frederick Ulrich of the MDPA federal defender, who represented Byrd in the Third Circuit.

The petition took a clever approach to illustrating the circuit split:

In February 2014, the Meadowlands, in East Rutherford, New Jersey, was host to Super Bowl 48. Suppose the local police, knowing that thousands of
out-of-towners would be drinking and driving that weekend, decided to set up an elaborate network of sobriety checkpoints around town. Under Third Circuit law, the police would have been allowed to conduct full-vehicular searches of every rental car driven by an unlisted driver that they stopped that weekend, regardless of whether they had a warrant or any suspicion of a crime. The same is true in the Fourth, Fifth, and Tenth Circuits and two state supreme courts.

Over the ensuing two years, Super Bowls 49 and 50 took place in Glendale, Arizona and San Francisco, California, respectively. There, football fans could rest easy knowing they retained their Fourth Amendment rights against warrantless and suspicionless searches. For unlike the Third Circuit, the Ninth Circuit (like the Eighth and four state courts of last resort) holds that an unlisted driver has a reasonable expectation of privacy in a rental car as long as he has the renter’s permission to drive the car.

Then came Super Bowl 51, held in Houston, Texas. There, the governing Fourth Amendment doctrine is woefully inconsistent, for in Texas, as in four other states, the state high court and applicable federal circuit court have reached opposite conclusions on the issue of whether an unlisted driver’s expectation of privacy in a rental car is reasonable. Thus, football fans could have challenged warrantless and suspicionless searches of their vehicles there, if they were prosecuted in state court, but not if they were prosecuted in federal court.

Such is the elusive nature of the Fourth Amendment’s protection against unreasonable searches under the law today.

Stay tuned.