your argument first this morning k sixteen thirteen seventy one bird versus united states mr chief justice i may please the court in this case the government seeks to transform a violation of a car rental agreement into a rule were unlisted drivers have no ability to even invoke the fourth amendment the government's proposed rule should be rejected for at least three reasons first ignoring a person's privacy expectations when he locks his personal property in a car's locked trunk with the permission of the renter is contrary to this court's recent likes of expectation of privacy test which looks to privacy expectations and not contract terms and not property ri while the contract violation alleged here does not negate fourth amendment rights it's notable that mr bird's presence in the current government does not dispute this was not improper his storing of his personal items in the trunk was not even a the government does not argue that that was in permissible suppose he had been just a passenger and went to with them likewise even if he is just the passenger if the person who has rented the car gives him permission to lock his own personal property in the trunk of the car he has a reasonable expectation of privacy that strangers will not rummage through his personal property in that block trunk what if the budget rental agreement and you know in big letters on it if anyone is stop driving this car they must consent to police search your budget doesn't want to be involved in promoting criminal activity what your honor the first of all the agreement so that the so that allows him to escape from those provisions moreover those provisions would not define what a person's constitutional rights are this court is look to reasonable expectations of privacy ok well known if what if reid told him look i don't you know i i know your background i don't want you transporting flak jackets and the heroin in the trunk of this car that i've rented that would be different than that he was not given permission by the renter to store his personal property in the trump but instead in this record show going in that case the police he the police could go through the trunk without  warrant i don't think so your honor still tells him don't put stuff in my trunk and the but you can take the car i'm sorry if your hypothetical where he's barred from from doing that i would i would agree that he doesn't that he made he doesn't have permission to use the trunk and he may be more like the passengers in the rake its case would be a little i would still say he has a fourth amendment right invoke there but a more difficult situation so but if the police have access to  going back to my first hypothetical to the rental agreement which he probably would you've got to have the rental agreement in the car they said let me see your license or title it gives them the budget agreement and the agreement says you must consent to police search if you're stopped what about that again that kind of a contract of adhesion you wouldn't ordinarily really attractive if you will you go into a rental agreement it's possible a little screen where they tell you to use their electronic signature thing and sign off on it these are terms that you're they don't want to which he knows that budget doesn't want him to have an expectation of privacy in the trunk i guess your honor the there could be a contract violation in that context but there would not be a complete inability to invoke the fourth amendment well he knows that the owner of the car forgit does not want to give him any privacy in the truck and the police know that the owner of the car does not want to give him any privacy in the trunk and yet nonetheless he has an expectation of privacy you're out of that may be a harder case because of well i know it's a harder case but but i'm trying to get to the limits of your theory well our in our theory you have a person in mr byrd's position he's been it's where he's never been given access to it doesn't have his personal property in the trunk and maybe the government's argument about rake its relevance might be different in that scenario but what if the who what if the rental agreement said that if any unauthorized person uses the car we consent to a search  car because mr byrd is not authorized to drive it that would be all right it's but that would be a very different scenario where if you looked at this court's chapman case they said  on this it might well be budgets policy that we want the police to search a car if they stop it and striven by somebody who is not authorized to drive it in your honor there if there is such a provision that the consumers can decide where they want to rent a car with budget where it has a sort of fourth amendment free zone provision and has that sort of force consent in a contract if it he's in they don't have that kind of privilege i just want to get that legal i can out of it for a minute bill and his three college friends are sitting in the living room dad says bill can we use the car this evening yes dad says to the four that bill is the well there's jim have the expectation of privacy he would your honor he would he would even though he her dad right nobody but bill can drive this car a dad might have claims he could bring against  so what's the rule when when somebody is driving a car and they know they don't have permission from the owner they still have an expectation of privacy and the police can't search for everybody knows rule is that the rule of the rule also takes into account i mean who does who doesn't know i don't have as expectation of privacy i've never been near the car all right so you're not going to say you know i mean who in that case doesn't have a state hey you look at the x the real life expectations do you expect a stranger to be able to rummage through the car in that circumstance so when you're in possession and control the car and you have the key of the car in our case when you've been pretty even permission never expect a stranger rummage through the car so if i'm sitting there are a lying in the back seat asleep because i'm talking and everybody else has left the car saying i have an expectation of privacy i was just a friend of the driver and he said you can sleep on the back seat so then you're my go i haven't expected more like the x the expectation of the passengers in rake is where they were never given access to the glove compartment they never put their personal property in the glove compartment here in this case the government concedes that mr bird was given permission and it was not a violation of contract for him to store his personal property in the trunks of his testimony is that he put his clothing in the trunk and if you look at the video it minute forty eight you see the police rummaging through his personal property in the trunk up so even if you're just a passenger if the renter or your friend gives you permission to lock your own personal property in the trunk and here it's not even a contract violations and against dad's wishes it's not against budgets which is right for him to have his property in the trunk and i ask well he had his property in the trunk because he was the driver and the case is presented as if as if the car was just lent to him for a few minutes what happened was he waited right outside the rental car place wife she went in and sign the agreement it was very clear that he didn't want to be on the car and it was very clear that he was going to be the only one to drive it  wanted to put mr burden in the same position to have an if there's an apartment which says no sublets will be allowed without the authorization of the owner and they know the owner doesn't like to approve them but the renter goes ahead and sublets the house or the apartment to a family under the government's view because there's been a violation of that lease there can be no expectation of privacy here let me be straightforward as to what my problem is i see your point in this case you have a point but what worries me is what's our rule going to be you we have now subsection eight hundred three seventy eight of la fave which is called the car rental cases you see fourth amendment laws too complicated in a sense already so you look for principles or rules that will allow policemen and others to understand what it is their supposed to do and your rule in this case is our rule is that if you are given permission by the renter to store items of your personal items in the trunk you have a reasonable expectation of privacy and especially when if the government concedes his presence in the howard government you know how will the police an police come to a rental car they asked for your license and your registration you give them your license and a rental agreement that doesn't list you how are they supposed to know the owner gave you permission homeowner is going away for a long weekend arranges with a teenager in the neighborhood to come in and walk and feed the cat and spend quality time with the cat but says under no circumstances may you bring anybody else into the house but the teen and the teenager says ok fine and then goes ahead and gives the keys to a friend who uses the house to sell drugs and the police come in and they conduct a search can that trespasser claim that his fourth amendment rights were violated so this court has carved out an exception for the criminal trespass or for that the car thief for it's an exception for someone's mere presence in the house or the apartment or the car is itself a criminal act the mere presence is criminal and worse an intrusion on other person's privacy so the friend coming in who's a your hypothetical a criminal trespass the car to transport drugs are very different for first of all mr bird's presence in the car is not a violation of the contract it is not a criminal trespass it is not a tort the government concedes his presence in the car in the language the least did bar the renter from moving in and really setting up distillery quit that and the state argued that because he did so the landlord to the victim at any moment and therefore he can't have fourth amendment rights to invoke in that circumstance and this court said no even though there could be in cohen right of of the landlord to even him if he they knew about the violation of a lease that does not undermine its fourth amendment rights and same same here or there maybe the budget has in a coate right to bring a contract action or a tort action against mr byrd but until they do so just like in the sublet example if the land well if the owner finds out about the him from a simple sublet and then brings an action of even action then you can say at that point on things most importantly that the defendant didn't claim any position of privacy interest in the good search or the things in the glove compartment thick setter why what happens here meaning is your client how did the information that he was given permission to store things in the trunk come before the court well in the suppression hearing his testimony was that he had the permission of his read and that he had the permission to lock his personal items in the trunk that he did store his clothing in the car in the trunk and then we see in the video the government was rummaging through the trunk and just in just the way that this court has worn that that so i'm tapping i'm having a problem with this case which is why are we here meaning once he admitted that the that the goods in the trunk were his i don't know why that doesn't give him order magic standing to challenge the search i thought i it was the fact that the defendant's it repeated three or four or five different times that the defendant's claim no proprietary interest in the good search that's different than this case isn't exactly exactly why didn't we hear on this legal issue at all we're here because the government in the third circuit has advocated a rule of a blanket rule that if you're an unlisted driver you never have an expectation of even if you don't have an expectation of privacy in the trunk and claimed an expectation of privacy in the property and here and absent probable cause there is no right to search so why are we here we agree on one hundred percent on that your are argue the straightforward point that the whole this whole discussion is about who has the right to challenge a search and without probable cause right you're on the right if you're claiming an interest in the property at issue he's claimed it he testified he has a right so now we go to the suppression here right here and he testified regarding the clothing he put in the car and you see them rummaging through the trunk when they open that lock trunk so that's undisputed here he didn't just to be clear in the record he did not claim ownership of the drugs or the body armor of course they're charging him with possession of the same but but it's enough that he has only his own personal property is in that trunk the clothing and that the government is rummaging through that locked trunk the people have an expectation a reasonable objective expectation of privacy in spaces as it would look so you know if i can follow up on just to sort of myra's question and justice briar's in terms of what's the clear line we could draw here you've raised two theories on which you might prevail one a property law theory essentially as i understand it that possession is a good title against everybody except for people with superior title and and i understand that that's an ancient common law rule i go back and find that and treatises all the way back to joseph story or i can do this reasonable expectation of privacy test and that's what we've been struggling with so far on what's the we have to ask what the nature of the contract is in the terms of the contract we might want to look at the nature of the relationship between mr burton and miss reed there was a lot of debate in the brief by social science data get my law clerks to go do that or do we just announce normatively what we think it ought to be should depend on regional and cultural norms across the country gosh it's very complicated professors bawden doubt apply to criminals too we've been very clear that criminals don't have fourth amendment rights the property based concepts that just discourse which was stayed in would say that criminals have that kind of property interest and no justice eight ninety five which deals with this under the restatement of torts second says just the principle it was articulated that mere possession would allow you to bring a trusted action against anyone else who invaded it but if you look at common age there it is where someone is clearly a thief  the court can deny them the right to bring that trespasser conversion action against the third party the stranger who's invading the statement the problem with going down this property route is that we go off in search of a type of case that almost never arose if it ever did or rose a rise at common law where and on authorized sub bailey brings an action for trespass to chattel against a law enforcement officer when would that ever have happened in eighteenth century america never it's your right to bring a chest pass action against a stranger they think that you can exclude the stranger and bring a trust catch action against him it's what supports your group property right under the co enough to find the case where it's the stranger where it's the private party stranger but that's not what we have here we have a party who has lawful rights that no private party had which was to stop this vehicle and it's not contested that he's committing a crime yes or that's our blight bright line rule you accept easy to apply yes that is supported by both common law principles and objective expectations of privacy that we're you're in a car and you're in sole possession  control that the troopers themselves recognized he was no criminal they would put a car thief back behind the wheel the car give him complete control in the words of trooper along and let him drive it up the highway to the next exit to pull over they didn't they treated him very differently who goes into a house and has all the indicia of being the owner as far as anyone else can tell or has a right to be there also can exclude the police from a search unless in the foundation of the expectation of privacy is the right to exclude others in jones and rake as i said that and it's very clear that both under common sense if you can exclude and under common law we have a right to possess and exclude that mr mr byrd has a fourth amendment right that he can invoke in this case the word property numerous times but but when property doesn't appear in the fourth amendment it talks about  which is the find by samuel johnson stiction there are as goods were moveables so is your argument that any property interests whatsoever falls within the definition of facts if we are going to go back to and original list interpretation of the fourth amendment so would it include contingent interests would it include future interests if somebody has left me a car a will and the car is searched do i have the right to bring forth to it is that implicate my fourth amendment rights i think of the common law recognizes your right to reply even or to trespass against a stranger both under common law and common sense that it makes sense to recognize a right to invoke a fourth memory but still we're not saying that the police don't have adequate tools here if they're if they have reasonable suspicion to extend the stop and further investigate if they have probable if they had consent they could have searched the trunk of the car but they did not have that here slope we've always said that there's a normative component expectations of privacy in other words there those expectations that society is prepared to recognize as reasonable so here you have at the very least a person who's violated important contract terms terms that are of some significance to owner of the property as well as a person who is engaged in conduct that frustrates law enforcement in various ways get behind the wheel you're not the person who's authorized to be here the police don't know who you are and you know this is the fact of this case provide a good example of how an authorized driving can frustrate law enforcement so why is it that society should be prepared to recognize this conduct as reasonable because society recognizes that  when you put your personal items in a lock space if you put it in chadwick in a locked foot locker you have an expectation of privacy regarding it and the courts don't look behind this to say well are you really engaged in criminal conduct are you a bad guy the question is a question of if you're sitting in a car which you have a lot you can lock the car and you've locked the truck your personal items society recognize an expectation of privacy in that and mr byrd when he was sitting in the ford fusion after he's pulled over by the police is not wrongfully present if someone's wrongfully present and proving a criminal act by being present that's different but the government can see he was not wrongfully present the car has personal items locked in the truck and as an objective matter someone has a expectation of reasonable expectation of privacy in those circumstances and that expectation is bolstered by the common law which says he has a right to sue others for trust yes if they intrude upon that car if that's true clearly he can at least in minimum invoke the fourth amendment like t family member or a close friend or hear someone you've been living with for fifteen years and you exchange is the record establishes your exchange cars on a regular basis it's reasonable to believe that you can drive the other person's car that you can walk and materials in the trunk when you're driving and you'll have an defeating thank you mr chief justice may it please the court to challenge the search in this case petitioner has the affirmative burden to prove a connection to budgets car that would justify treating it as his effect for purposes of the fourth amendment  can't do that when he sent reid into the rental office alone to rent a car he never could have rented subject to terms that didn't allow him to drive it and then he took the keys and drove off with it this is the reason he wasn't  assume it was the renters son not the wife because there's an exception for a spouse and the contract is that son in the same position as mystery i think as a matter of law he would be obviously i think it's justice kagan pointed out the actions here were even more unreasonable but the reason why i don't disagree with you but i'm asking a question which is the police can search a car when they have probable cause correct yes and they're free to do that of any car driven even by a licensed driver correct yes or a licensed driver on a rental agreement so really the issue here before us is when  police permitted to search without a war without probable cause and that's what i see the issue in this because if we rule that someone without permission can 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 room well your honor i think very is no evidence that there is a widespread practice of bat because for one thing it's a right to the police here said we stopped him because he was driving a rental car he was doing something totally legal every driving school teaches you to put your hands at a ten to two angle and they found that suspicious and they waited until he ma that was not authorized by the traffic laws so to say that there isn't a practice is a little bit disingenuous mr fagan but the question i really have is should we be creating exceptions to the most basic of fourth amendment rights that of probable cause before police intrude and searching at all and we're doing it under the guise not of was the search and legal under the fourth amendment but whether someone has standing to even question that this is a standing case correct it's  from the court has sometimes referred to a standing and of course the question any standing case is whether someone has the right under the fourth amendment to treat something as their own effect or their own home now here the very thing videoing  know that he was told that he could use the trunk and put things in it whether he's a passenger or driver once he says that and the owner of and the renter of the car grease with him i'm still not sure what's missing you're on why that claim of an interest is in well let me say a couple of things your honor first of all right this was quite quite clear that a passenger doesn't get rights in the trunk of a car and simply putting items in the trunk of a car even with the permission of someone else doesn't give one rights in the trunk the person may have rights in their own items with in the trunk but they don't have rights in the trunk itself for example if you think about minnesota against carter or the so every criminal defendant where there suitcase has been searched i would have to say i'm more than just the owner of the suitcase have rights in the suitcase that was searched in the car most courts will address that and find that the defendant did have rights in the suitcase but here he's asserting rights in the car he has never made a claim of any other sort and under foot no one of rake is it's too late for him to do so now to make claims to this to the trunk that he said i was cooler than permission to store my things in the trunk and that's what i did your honor the trunk is simply part of the and he hasn't made some claim that his rights were violated as to some effect he stored in the trunk what he's claiming is that the car can be treated as his affect for fourth amendment purposes but the very event on which he's relying to establish his fourth amendment rights was contrary to the reasonable and well known legal norms of a major commercial industry he not only wants this court to say that read handing him the keys and him driving off in the car was acceptable he wants this court to say that it reflected such a deep seated societal understanding that it should give rise to fourth amendment right now there are signs there was a violation of one of the terms of the contract we asked mr lobel about where he would draw the line but where did you draw the line in terms of terms with regard to terms in the contract which we do say that every violation of the term of the rental agreement voids the opportunity to make a fourth amendment argument there your honor i think the key distinction here is that he's claiming a personal fourth amendment right as an unauthorized driver he doesn't have any connection to the car at all there is no connection between him and the car he is not part of the rental agreement he's an interloper in the rental almost well that's a pretty big connection that the person who has the right to drive the car told him that he could that's a connection to the car that is an authority that she didn't have that she signed in a couple of different places that she didn't have and that it is well known that people do not have when they rent cars unless otherwise allowed to do so but then i dis is probably not the only time it's ever happened and i think what i think the understanding is where you're probably going to have trouble with insurance and all if so and so gets into an accident but at least the argument on the other side is that it wasn't on lawful for him to be driving he had been but wasn't criminally unlawful may have been a breach of contract by reid i guess but not necessarily anything wrong for on his part what's criminally unlawful least in ohio your honor as we've pointed out in our brief and we don't have any statistics on how common it is and i think the idea that the breach of legal norms that are well known and reasonable within a major commercial industry is something that should give you rights probably do i got that point you would know what you think of the of the rule that we just sort of came up with maybe he's been advancing a problem with your rule it seems to me is that there are call ours houses apartments sublet summer cabins all kinds of things which have all kinds of contracts understanding's leases that separate and over a wide range who knows what's in them and what can be expected that's awfully complicated and therefore i'm looking for something so simple and the simple as thing that we were discussing it seems to me is to say the following where the individual has all the other in disha of the right to control info in the blank here it's a car he's sitting there driving it that he can assert a right to privacy and has standing unless it is criminal unless it is a crime that may be what is a crime but that would be the rule unless he is a criminal possessor came in as a squatter having broken the wind you see the point but the virtue of what he just said seemed to me your opponent here was that that's pretty simple comparatively speak i don't even think i don't think that's going to be particularly simple your honor first of all as i was just mentioning to the chief justice in some jurisdictions this would be a criminal act second i don't know what that rule does with cases and i'm not making this case up there's actually a petition before this court that presents this very question where for example you have an authorized driver who also has a suspended driver's license simply getting into the car and turning the key is a criminal act they're not allowed to be doing that and yet i take it their rule would create a judgement expectation of privacy in that circumstance because it's a crime for him to be there and so therefore he pulls with a new exception so your honor i think it's going to actually wind up being much more difficult to apply in practice and i don't think it makes a particular amount of sense what do you suggest as a rule you suggest as a rule that what we look to see is under the law as we've heard it good extend back to the eighteenth century that under under the law of bailment in a lot of other things does this person have the legal right to be in that particular place where he is doing those things he's doing at the time which are relevant to appearance of ownership your jury joan he is no is that what is your legal so the principle that we propose resolves this case and i don't mean to keep repeating myself here but where the assertion of fourth amendment rights comes from an act that is contrary to the legal norms of well established commercial industry you've just told justice alito that that can't possibly be your test because there are all kinds of provisions in this contract and people violate some of them and you would never say that that eliminates any rights to privacy so here you have a case where somebody is in possession and control of the car that person has been given permission by the renter to be in possession  control of the car it's true that there's a contract violation but the contract violation let's be frank is not uncommon some courts have even said that these contract violations are forseeable and it's understood by everybody as related to insurance liability not to privacy so what eliminates the right of privacy that you would normally get by opening up the car of the door and sitting in the front seat and turning the ignition  well your honor i think it will be helpful in a second if i can turn back to and finish my answer to justice alito is question and make clear why this is different from other kinds of contract breaches but to answer your question you that someone who takes the wheel of a car that they are not authorized to drive is not entitled to treat it as they're of fact and before that we're just a little illustration is very much related to mine because there are all kinds of contract terms where if you're just if you're sitting behind the wheel of a car and you're you're driving on gravel you are in violation of the contract you know there are tens of them so why is this one any different why does this one eliminate what you would normally get by being in that car with the permission of the rent well just taking a second to explain this as i was saying to justice alito the fourth amendment rights are personal and here petitioner like other an authorized drivers simply has no connection to the car at all he is a stranger to the relationship between budget and read mr saying that but it's a matter of property law now and forever the possessor would have a right to exclude other people but for those with better title so some of these positions would have a right i think you'd agree to exclude someone whose attempt to get in the car to hijack carjack you'd also have a right to throw out a hitchhiker who had overstayed his welcome as i think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car i don't think so your honor i don't think this court has included the idea that even  the legitimate possessor of an item may be having some sort of trespass action they could bring has incorporated that particular rule into the fourth amendment in the sense that that's been the common law property forever right well your hon when the court said nothing about feebs we would put that aside well it's interesting that one of the reasons the one of the cases the court used to reject the car thief scenario in rake is actually relied on this trespasser theory that your honor is advancing now in the court said it found it inconceivable conceivable with respect to thieves that's correct i'm asking with respect to everybody else isn't it the fact that the government is asking for a special license here that would not be available to any other third person no your honor i think what we're saying is that that particular principle to the extent well then let me ask you this do you agree that mr byrd could have excluded a carjacker i think by virtue of simply being in the to create fourth amendment rights i think we're going to produce around very we have never incorporated private rights into the fourth amendment we've said that we know the will to property or tort law to define private ri if the issue was what the owner of verses a authorized users rights are we don't do that we don't look in searches of homes to what the owner of the apartment would say i would suspect that every o of the apartment would say my tenants don't have a right to engage in legal activity and there may well be contracts that say my tenants you can't do illegal activities here but we have to recognize the rights of tenants to privacy in their home and cause they possess it well not because they possess so your honor but because as justice ginsburg was pointing out there actually is a legitimate connection there they are in fact the renter in which country where children under the age of fifty five and grandchildren routinely stay and i doubt very much that we would ever say they don't have that legitimate expectation so the question that i go is this will be a very very first time where we're saying a private contract that doesn't speak about criminal liability but speaks only about insurance consequences with respect to the north arise drivers is creating a fourth amendment protection well your honor for the police rather than for the person involved i don't think that's our position our position is that there is no legitimate connection to the car here the contract is important everyone agrees on that he's not claiming he could simply walk into budgets lot pick a car he liked and drive off with it he's depending to some degree on the contract that exists between reed and budget he just wants to ignore the part of the contract that excludes him from its terms of a get back to justice alito is question i think the key distinction between this particular breach and other kinds of breaches if you were a legitimate renter is precisely that he's simply not included within the scope of the relationship a legitimate renter who is driving the car and then violates some terms of the rental agreement still has a legitimate connection to the car everyone that everyone agreed was created in the first place and the question then becomes whether they lose their legitimate expectation of privacy based on that breach and i think there's two good reasons why they wouldn't one is even when a contract declares the agreement to be void upon the violation of a particular term courts construe that not to have the contract immediately vanish into thin air but rather to create a right of void ability in the party whose term has been breached and so i think we would all understand that if someone gets on their cell phone while they're driving a rental car even if they're not supposed to unless and until budget actually tries to dispossess the renter of the car that the agreement continues in force second even if that were not true i think there are some legitimate societal understandings that might kick in at that point if you're stuck in traffic and you're late returning the car i think everyone understands that when you get there an hour late you're going to pay a vis the money for the are they're going to treat the contract as though it continues they may charge you a late fee but they're not going to act as though you should have turned into a pumpkin and vanished from the car the instant clock struck now and then what do you do about the cases with the illegal sub lets cd or the individuals who occupy a rental unit in violation of a provision that specifies the maximum number of people who can stay there so i think there probably would be a legitimate expectation of privacy in those cases i think they're distinct from this one in two respects one is this court has made crystal clear that homes are different from cars under the fourth amendment one's in effect the other's a house the court has made clear that homes are at the core of the fourth amendment yet cars have dramatically reduced expectations of privacy because they move and are subject to regulation the second thing is i don't think in the subletting example or the example of having too many occupants and an apartment for example and this is getting back to some of just the sort of hours questions in those in those cases you don't have the clear well established legal norm that you have in this case and you don't have to believe me on what the legal norm is if you look at do think that i think is very important these types of cases the ability to give clear guidance not only to the courts but to the police who have pulled the car over in the middle of a situation that is the most dangerous situation they confront and you know you're saying well are they supposed to conduct an inquisition who gave you permission to use this car what did she say all that is there anything wrong from your perspective in a rule that is very simple which is if it's a rental agreement  rental car look at the agreement it was not an authorized driver that said in other words it doesn't matter what the positions of the person who rented it is and but would you be arguing that search was permissible if you didn't have the rental agreement in the car and we would start i think the fact the rental grants in the car is very helpful to us i think we'd still be making the argument even if the rental agreement weren't in the car first of all your honor there are ways to figure this out even if the rental agreement isn't in the car they can follow up by asking questions they can call the rental car company you know what i mean maybe it's paradoxical you think well if there's no went rental agreement they want to have a greater authority but if the rent the absence of the authorization on the rental agreement that the police can look at is evidence that you know this is not your typical situation however common it might be and in practice it is reasons doubts that might otherwise not be there even if they don't have the rental agreement so your honor if the existence of the rental of the presence of the rental agreement which was required to be in the glove compartment in this case resolves this case for your honor in the court doesn't need to go any further than that i guess one thing i would add exception and probable cause aspect of it is that if well your honor i think what the court was getting at with the car exception are still principles that apply when we're doing an expectation of privacy inquiry because the core exception arises out of the fact that there is a lesser expectation of privacy in cars and i think one important thing to know note about this case is any rule the court writes that is broad enough to encompass the conduct in which petitioner engaged in this case would be giving the imprimatur of the fourth amendment on what is i think really fairly described as wrongful conduct if you think anybody depends on knowledge so suppose that in this case byrd had been told don't worry i have you down as an on as an authorized driver would that be different if he thought he was an authorized driver nothing in this court's cases to this point have turned on the defendant's knowledge and i think there are reasons not to have such a rule and i can get to them in a second but even if you applied that rule in this case or assume that that rule exists in this case petitioner would still lose you know obviously knew that he was an unauthorized driver but i'm saying how but if he did what if he was and what if he thought he was unauthorized so i think it's and you're saying same rule i think we would say same rule and one of the reasons why i think the court could draw the distinction but there because the reasons i've heard for court not to draw that distinction one is that it would give more privacy rights to someone who's not diligent than to someone who is someone who actually asks am i on the rental agreement would have been less likely to have privacy protections the second thing is that it creates very difficult proof problems if the defendant gets on the stand and says well my friend said so and so it's very difficult for the government to disprove and they're also raises questions of trustworthiness well maybe your friend's a car thief maybe your friend just not a trustworthy person you shouldn't have been trusting your friend and the fourth amendment doesn't have to accept the defendant's own choices to trust a particular person when i thought if i understand the became an authorized driver by law i don't have a criminal conviction and he's listed what happens then is that a violation of the contract sufficient enough to invalidate his expectation of privacy i think he probably would your honor because he won't maybe i'll add something to that assertion which is that the reason i don't think that's the right way to think about that is because the fourth amendment doesn't just protect people's expectations of privacy writ large it protects persons in their houses and their effects and search the trunk without any probable cause i would phrase it as the you do not have enough of a connection to the car to treat it but i was the one of your hands that would be the effect of the rule i would add that there are other fourth amendment protections that protect against what your honor is proposing first of all you need reasonable suspicion both to stop the car and for the entire duration of the search he hasn't challenge the duration of the search and the start of the duration challenge the duration of the stop in this case because i presumably because he would lose because there was reasonable suspicion that supports the entire length of the stop mr fagan one thing we're struggling with here is you say some contract terms  so common kind of an empirical argument that we should take cognisance of them on the other hand you kind of make a normative argument that some contract terms we should disregard even if they are common like the cell phone  breach listening to a cell phone while driving shouldn't forfeit your expectations of privacy as a normative matter even though in pure cli they're quite common the government's been living with a reasonable expectation privacy test for a long time how much of that is supposed to empirical how much of that is supposed to be normative and how are we supposed to decide your honor if you don't mind if i can just take the first part of your question first i don't think that that's quite our position our position isn't about norma data about how common a particular contract you've made several times this argument that it's very common that anyone in the country would know that this is a breach and that that therefore informs the reasonable expectation of privacy test that's an empirical claim you've also normatively made the argument that there are some breaches though common we should not take cognisance that we should not forfeit fourth amendment rights on like the cell phone example and i'm asking you the government's been living with the cats room for fifty years how much of it's imperial how much that i'm not asking you that either mr fagan in reasonable expectations of privacy i think is a very difficult inquiry for a court to undertake in the courts would be very hesitant before deciding that some social understanding is sufficiently well embedded in society that it justifies constitutional protection under the fourth amendment where you have the kind of empirical or common sense data you have here where the assertion is in established legal norms of a major commercial industry i don't think the societal understandings to the extent they even exist at all can really carry the day but to get back to the sort of premise of your question we're not saying that certain contract terms should be respected in certain contract terms shouldn't the distinction that we're drawing here is between somebody who actually has a legitimate connection to the car because the person is the renter of the car or isn't authorized  help of father who owns the car but is not an authorized driver on insurance and as a result is not listed on the registration or the insurance card is that son now we're out of the rent situation we're in the ownership situation is that son have an expectation of privacy so if a father tells the son you can go ahead and drive my car then he does have a legitimate protection privacy he has a connection to the owner these breaking the law he doesn't have the child listed on the insurance he hasn't listed the child on the registration why is this different than the renter situation again your honor it's not about the want to make a phone call in private you can go out to the car and that's what perry did he went out to the car he sat in the car he made a phone call for himself does he have a reasonable expectation of privacy in there then sit in the car and driven it yet i think the answer there and using that is a place where he has some privacy i think the answer there would be no for two reasons and i also don't think that's really what's going on in this case but the reason why not is first of all there's no connection to the owner of the car second of all a fundamental aspect of cars is that they can move and in that scenario he's not entitled to move it i don't know the you have a legitimate expectation i try to understand is i don't know that you can have a legitimate expectation of privacy placing your person or your possessions in a space the very function of which is to move around and you're not allowed to move it but in this particular case his only assertion of reasonable expectation of privacy in the car isn't you can finish the sentence is coming from the fact that bird's conduct would violate criminal law in ohio that is not true as explained in footnote two of our of our reply brief the case they cited was where the renter who gave him permission allegedly gave permission is the one who reported the cars stolen that's certainly very different than here as to clear rules our position here is a clear rule and one of one of two ways one that unless it's a criminal trespass or stolen car there is a ability to at least invoke the words amendment or second if anyone has a right to bring a trespass action to exclude others and sue them if they trespass on the property they should have a nics expectation of privacy protected by the fourth amendment and delivery to invoke it the  the government posits here is one picking and choosing between contract terms the on line standard contract lists all these terms including you an authorized driver the cell phone the driving on gravel all of them they say it's voidable he says some are avoidable but so then we should treat differently you're picking and or unless you're a car thief that you have at least the ability to invoke the fourth amendment the he makes a distinction between homes and cars this court has drawn distinctions which are regarding the nature of a car it has never said the question of who can invoke fourth amendment rights turns on whether you're a person who's been present in a house or present in a car this is a unique argument which this court should reject and what about other criminal activity so why do you draw a line between a criminal trespass an hour and somebody who has an open an open bottle of alcohol in the car or someone who gets in the car intoxicated or someone who is ingesting control contr privacy interests by your criminal presence in the car as other examples often we have cars being used to transport drugs we have examples of people going over speed limit people drinking in cars those kind of criminal offenses have never be considered as a basis for negating the driver's right to simply invoke the fourth amendment there's a question then is a reason suspicion is the basis for a probable cause to search the car and that should be the standard here not not