The police stop you for an alleged driving infraction – speeding, failure to stay in lane, tinted windows – and while talking with you the officer smells the odor of marijuana. The officer asks you to step out of the car, searches the car and finds drugs. You contact a criminal defense attorney to defend you and explore the possibility of a motion to suppress the search. If you are the driver of a personal vehicle or the owner, you have what is known as an expectation of privacy and “standing” to suppress the search. However, if you are a passenger of the vehicle, or the driver of a rental car that was rented by a friend or family member and you are not listed on the rental agreement, you may lack standing to challenge the search of the vehicle.

How can this be? How can someone driving a car who is subject to a search by law enforcement not have the legal authority to challenge the search? Well, this precise issue has just been heard by the United States Supreme Court in the Byrd case. The case began in 2014 when Terrence Byrd was stopped by a Pennsylvania State Trooper. When the Trooper learned that Byrd’s fiancée rented the car and that Byrd was not listed on the rental agreement, the Trooper searched the car and found heroin. The Trooper had no probable cause to search the car. Rather, he asserted that he did not need Byrd’s consent for the search because he was an unauthorized driver. Typical rental agreements only authorize the renter’s spouse, or someone who appeared at the time of the rental and signed as an additional driver, to operate the vehicle. Mr. Byrd and his fiancée had been together for 17 years and had 5 children together, but were not married. The trial court refused to suppress the search and Byrd was sentenced to 10 years in prison.

Hearing oral argument the other week, the Supreme Court seemed inclined to hold that people not listed as authorized drivers on rental agreements still have privacy rights when stopped by police. Justice Sonia Sotomayor said it would give the police too much power, specifically stating “If we rule that someone without permission 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.” Several other justices suggested that failing to list an additional driver was a mere breach of contract that does not overcome the protections of the Fourth Amendment, which bars unreasonable searches.

This is a complicated and unsettled area of the law until the Supreme Court decides the issue. While it may make no sense to the average layperson, the law requires a person to have a reasonable expectation of privacy in order to be afforded Fourth Amendment protection from unreasonable search and seizure. An unauthorized driver of a rental car, a passenger in a friend’s car or a guest at a friend’s house may not be able to challenge the validity of a search even when that person is charged with a crime related to the items discovered in that search. 

Stahl Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at