Circuit Holds No Reasonable Expectation of Privacy in Rental Car for Unauthorized and Unlicensed Driver
In United States v. Lyle, 15-058-cr (April 1, 2019) (Raggi, Chin, Lohier), the Second Circuit, following a remand from the United States Supreme Court, once again held that the search of a rental car that James Lyle was driving (1) without a valid driver’s license, (2) without the permission of the rental car company, but (3) with the permission of the authorized driver, was lawful. We covered the panel’s original opinion in United States v. Lyle, 856 F.3d 191 (2d Cir. 2017) in a June 1, 2017 post. That post lays out the rather interesting facts and procedural history of this methamphetamine distribution and conspiracy case, and discusses each of the issues originally raised on appeal by Lyles and his co-defendant, Michael Van Praagh, including the panel’s original treatment of the rental car search issue. Subsequent to that blog post, the United States Supreme Court granted Lyle’s petition for a writ of certiorari challenging the search of the rental car and remanded to the Second Circuit for further consideration in light of its unanimous decision in Byrd v. United States, 584 U.S. ---, 138 S. Ct. 1518 (2018). Byrd included grand rhetoric about the Fourth Amendment, with Justice Kennedy writing that “[f]ew protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.” 138 S. Ct. at 1526. On remand, however, the Circuit once again upheld the search of the rental car.
On December 13, 2013, New York Police Department (NYPD) officers observed Lyle park and exit a car in midtown Manhattan. Officers noticed what appeared to be an illegal gravity knife clipped to his pants, and inquired about the knife. Lyle told police that he was permitted to carry it for work purposes. He also initially denied that he had been driving the vehicle, but admitted that he had been when police told him that they had seen him driving it. When asked for identification, Lyle provided officers with an expired license; they soon learned that his driving privileges were suspended. Officers also determined that the vehicle Lyle was driving was a rental car, and that Lyle was not an authorized user under the rental agreement. Lyle told police that his girlfriend had rented the car and given him permission to drive it. He was arrested for driving with a suspended license and possession of an illegal knife. Prior to leaving the scene, Lyle asked police to allow him to contact his girlfriend so that she could pick up the rental car. They denied the request, and instead towed and impounded the vehicle. An inventory search of the vehicle at the police station led to the discovery of over a pound of methamphetamine and approximately $39,000 in cash in the trunk of the car.
The district court denied Lyle’s motion to suppress, ruling that Lyle had no reasonable expectation of privacy in the rental car because he was not an authorized driver under the rental agreement, and that in the alternative, the inventory search of the vehicle was lawful. On appeal, the Circuit was faced with a circuit split on the reasonable privacy expectations of an unauthorized rental car driver. The panel declined to address head-on whether an unauthorized rental car driver ever has a reasonable expectation of privacy, and instead held that because Lyle’s operation of the vehicle was both unauthorized (he did not have the rental car company’s permission) and unlawful (his license was suspended), he had no reasonable expectation of privacy in the vehicle.
On remand from the Supreme Court, the Circuit addressed the effect of Byrd on its original holding. In Byrd, the Supreme Court held that “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” 138 S. Ct. at 1531. The Circuit adhered to its original decision, relying on the fact that in addition to not being an authorized driver, Lyle also operated the rental car without a license. In doing so, it emphasized the Supreme Court’s reminder in Byrd that “wrongful presence at the scene of a search would not enable a defendant to object to the legality of the search,” id. at 1531 (internal quotation marks omitted), and that accordingly “a person present in a stolen automobile at the time of the search may [not] object to the lawfulness of the search of the automobile,” id. (alteration in original). In the Circuit’s view, for Fourth Amendment purposes, an unlicensed driver driving a rental car without the rental car company’s permission is, like a car thief, unlawfully in possession of the vehicle, and accordingly has no reasonable expectation of privacy in a vehicle. This is so even though the absence of a driver’s license alone does not destroy a driver’s expectation of privacy. The decision creates a circuit split with the Eighth and Ninth Circuits, which have held that a defendant may have standing to challenge a search of a rental car despite lacking a valid license and authorization under the rental agreement, provided that he had permission from the authorized driver. See United States v. Best, 135 F.3d 1233 (8th Cir. 1998); United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006). The Circuit did, however, leave open the possibility that in certain circumstances, an unlicensed and unauthorized driver driving a rental car in which the authorized driver is a passenger could have a reasonable expectation of privacy in the vehicle, but did not decide the issue, as Lyle was the sole occupant.
The Circuit also rejected Lyle’s argument (which it originally declined to reach) that the impoundment of the vehicle was unlawful, holding that even if he had a reasonable expectation of privacy, officers lawfully impounded and searched the vehicle. In doing so, the Circuit joined the First, Third, and Fifth Circuits, and held that in analyzing whether impoundment of a vehicle is reasonable under the Fourth Amendment, courts must consider “all of the facts and circumstances of a given case,” i.e., apply a totality of the circumstances approach. By contrast, the Seventh and Eighth Circuits have held that an officer’s decision to impound a vehicle must be guided by a standardized procedure put in place by the department or agency. See United States v. Petty, 367 F.3d 1009 (8th Cir. 2004); United States v. Dugway, 93 F.3d 346 (7th Cir. 1996). Applying a totality of the circumstances approach, the Circuit held that since the car was parked in a busy area where damage or theft could occur, it would have become illegally parked the following day, and no one was immediately available to move it, the decision to impound it was reasonable under the Fourth Amendment. In other words, even if the search did not pass Fourth Amendment muster under the “unauthorized driver” theory, the search would have been permitted as an inventory search.
Fourth Amendment aficionados should keep a close eye to see whether Lyle makes its way back to the Supreme Court’s docket. The Court could decide to resolve the double Circuit split created by the Second Circuit’s opinion, and close the loop on Fourth Amendment rental car issues. The Second Circuit may have made this return trip slightly less likely by reaching the lawful impoundment argument. For the time being at least, unlicensed and unauthorized drivers of rental cars in the Circuit will be out of luck at their federal court suppression hearings (at least if they were alone in the rental car).
 As a side-note, the constitutionality of New York’s long-criticized gravity knife prohibition has been litigated in recent years as too vague and arbitrarily enforced. The Second Circuit rejected a facial challenge to the constitutionality of the statute in Copeland v. Vance, 893 F.3d 101 (2d Cir. 2018), but more recently Judge Crotty in the Southern District of New York agreed with an as-applied challenge in Cracco v. Vance, No. 14-cv-8235, 2019 U.S. Dist. LEXIS 52292 (S.D.N.Y. March 27, 2019). See Colby Hamilton, Citing Risk of “Arbitrary and Discriminatory Enforcement,” Federal Judge Finds Gravity Knife Ban Unconstitutionally Vague, N.Y.L.J. (Mar. 28, 2019), available at https://www.law.com/newyorklawjournal/2019/03/28/citing-risk-of-arbitrary-and-discriminatory-enforcement-federal-judge-voids-gravity-knife-ban-for-vagueness/.