(Slip Opinion) OCTOBER TERM, 2017 1 

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BYRD v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE THIRD CIRCUIT

No. 16–1371. Argued January 9, 2018—Decided May 14, 2018

Latasha Reed rented a car in New Jersey while petitioner Terrence 

Byrd waited outside the rental facility. Her signed agreement 

warned that permitting an unauthorized driver to drive the car 

would violate the agreement. Reed listed no additional drivers on the 

form, but she gave the keys to Byrd upon leaving the building. He 

stored personal belongings in the rental car’s trunk and then left 

alone for Pittsburgh, Pennsylvania. After stopping Byrd for a traffic 

infraction, Pennsylvania State Troopers learned that the car was 

rented, that Byrd was not listed as an authorized driver, and that 

Byrd had prior drug and weapons convictions. Byrd also stated he 

had a marijuana cigarette in the car. The troopers proceeded to 

search the car, discovering body armor and 49 bricks of heroin in the 

trunk. The evidence was turned over to federal authorities, who 

charged Byrd with federal drug and other crimes. The District Court 

denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded 

that, because Byrd was not listed on the rental agreement, he lacked 

a reasonable expectation of privacy in the car.

Held: 

1. 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. Pp. 6–13.

 (a) Reference to property concepts is instructive in “determining 

the presence or absence of the privacy interests protected by [the 

Fourth] Amendment.” Rakas v. Illinois, 439 U. S. 128, 144, n. 12. 

Pp. 6–7.

 (b) While a person need not always have a recognized commonlaw property interest in the place searched to be able to claim a rea-
2 BYRD v. UNITED STATES

Syllabus

sonable expectation of privacy in it, see, e.g., Jones v. United States, 

362 U. S. 257, 259, legitimate presence on the premises, standing 

alone, is insufficient because it “creates too broad a gauge for measurement of Fourth Amendment rights,” Rakas, 439 U. S., at 142. The 

Court has not set forth a single metric or exhaustive list of relevant 

considerations, but “[l]egitimation of expectations of privacy must 

have a source outside of the Fourth Amendment, either by reference 

to concepts of real or personal property law or to understandings that 

are recognized and permitted by society.” Id., at 144, n. 12. These

concepts may be linked. “One of the main rights attaching to property is the right to exclude others,” and “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” Ibid. This 

general property-based concept guides resolution of the instant case. 

Pp. 8–9.

 (c) The Government’s contention that drivers who are not listed 

on rental agreements always lack an expectation of privacy in the car

rests on too restrictive a view of the Fourth Amendment’s protections. 

But Byrd’s proposal that a rental car’s sole occupant always has an 

expectation of privacy based on mere possession and control would, 

without qualification, include thieves or others who have no reasonable expectation of privacy. Pp. 9–13.

 (1) The Government bases its claim that an unauthorized driver has no privacy interest in the vehicle on a misreading of Rakas. 

There, the Court disclaimed any intent to hold that passengers cannot have an expectation of privacy in automobiles, but found that the 

passengers there had not claimed “any legitimate expectation of privacy in the areas of the car which were searched.” 439 U. S., at 150, 

n. 17. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones, who had a 

reasonable expectation of privacy in his friend’s apartment because 

he “had complete dominion and control over the apartment and could 

exclude others from it.” Rakas, supra, at 149. The expectation of 

privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car 

is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s 

friend in Jones owned or leased the apartment he permitted the defendant to use in his absence. Pp. 9–11.

 (2) The Government also contends that Byrd had no basis for 

claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement

that the rental company would have considered the agreement “void” 

once he took the wheel. But the contract says only that the violation 
Cite as: 584 U. S. ____ (2018) 3 

Syllabus

may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage, and the Government fails to explain what bearing this breach of contract, standing 

alone, has on expectations of privacy in the car. Pp. 11–12.

 (3) Central, though, to reasonable expectations of privacy in 

these circumstances is the concept of lawful possession, for a 

“ ‘wrongful’ presence at the scene of a search would not enable a defendant to object to the legality of the search,” Rakas, supra, at 141, 

n. 9. Thus, a car thief would not have a reasonable expectation of 

privacy in a stolen car no matter the degree of possession and control. 

The Court leaves for remand the Government’s argument that one 

who intentionally uses a third party to procure a rental car by a 

fraudulent scheme for the purpose of committing a crime is no better 

situated than a car thief. Pp. 12–13.

2. Also left for remand is the Government’s argument that, even if 

Byrd had a right to object to the search, probable cause justified it in 

any event. The Third Circuit did not reach this question because it 

concluded, as an initial matter, that Byrd lacked a reasonable expectation of privacy in the rental car. That court has discretion as to the 

order in which the remanded questions are best addressed. Pp. 13–

14.

679 Fed. Appx. 146, vacated and remanded.

 KENNEDY, J., delivered the opinion for a unanimous Court. THOMAS, 

J., filed a concurring opinion, in which GORSUCH, J., joined. ALITO, J., 

filed a concurring opinion. 
Cite as: 584 U. S. ____ (2018) 1 

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES _________________ 

No. 16–1371

_________________ 

TERRENCE BYRD, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

[May 14, 2018] 

 JUSTICE KENNEDY delivered the opinion of the Court.

In September 2014, Pennsylvania State Troopers pulled 

over a car driven by petitioner Terrence Byrd. Byrd was 

the only person in the car. In the course of the traffic stop 

the troopers learned that the car was rented and that 

Byrd was not listed on the rental agreement as an authorized driver. For this reason, the troopers told Byrd they 

did not need his consent to search the car, including its

trunk where he had stored personal effects. A search of 

the trunk uncovered body armor and 49 bricks of heroin.

The evidence was turned over to federal authorities, 

who charged Byrd with distribution and possession of 

heroin with the intent to distribute in violation of 21 

U. S. C. §841(a)(1) and possession of body armor by a 

prohibited person in violation of 18 U. S. C. §931(a)(1). 

Byrd moved to suppress the evidence as the fruit of an 

unlawful search. The United States District Court for the 

Middle District of Pennsylvania denied the motion, and 

the Court of Appeals for the Third Circuit affirmed. Both 

courts concluded that, because Byrd was not listed on the 

rental agreement, he lacked a reasonable expectation of 

privacy in the car. Based on this conclusion, it appears 
2 BYRD v. UNITED STATES

Opinion of the Court

that both the District Court and Court of Appeals deemed 

it unnecessary to consider whether the troopers had probable cause to search the car.

This Court granted certiorari to address the question 

whether a driver has a reasonable expectation of privacy 

in a rental car when he or she is not listed as an authorized driver on the rental agreement. The Court now holds 

that, as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does 

not list him or her as an authorized driver.

The Court concludes a remand is necessary to address in 

the first instance the Government’s argument that this 

general rule is inapplicable because, in the circumstances 

here, Byrd had no greater expectation of privacy than a 

car thief. If that is so, our cases make clear he would lack 

a legitimate expectation of privacy. It is necessary to 

remand as well to determine whether, even if Byrd had a 

right to object to the search, probable cause justified it in 

any event.

I 

On September 17, 2014, petitioner Terrence Byrd and 

Latasha Reed drove in Byrd’s Honda Accord to a Budget 

car-rental facility in Wayne, New Jersey. Byrd stayed in 

the parking lot in the Honda while Reed went to the 

Budget desk and rented a Ford Fusion. The agreement 

Reed signed required her to certify that she had a valid 

driver’s license and had not committed certain vehiclerelated offenses within the previous three years. An addendum to the agreement, which Reed initialed, provides 

the following restriction on who may drive the rental car:

“I understand that the only ones permitted to drive 

the vehicle other than the renter are the renter’s 

spouse, the renter’s co-employee (with the renter’s 

permission, while on company business), or a person 
Cite as: 584 U. S. ____ (2018) 3 

Opinion of the Court

who appears at the time of the rental and signs an Additional Driver Form. These other drivers must also 

be at least 25 years old and validly licensed.

“PERMITTING AN UNAUTHORIZED DRIVER TO 

OPERATE THE VEHICLE IS A VIOLATION OF 

THE RENTAL AGREEMENT. THIS MAY RESULT 

IN ANY AND ALL COVERAGE OTHERWISE 

PROVIDED BY THE RENTAL AGREEMENT BEING 

VOID AND MY BEING FULLY RESPONSIBLE FOR 

ALL LOSS OR DAMAGE, INCLUDING LIABILITY 

TO THIRD PARTIES.” App. 19.

In filling out the paperwork for the rental agreement, 

Reed did not list an additional driver.

With the rental keys in hand, Reed returned to the 

parking lot and gave them to Byrd. The two then left the 

facility in separate cars—she in his Honda, he in the 

rental car. Byrd returned to his home in Patterson, New 

Jersey, and put his personal belongings in the trunk of the 

rental car. Later that afternoon, he departed in the car 

alone and headed toward Pittsburgh, Pennsylvania.

After driving nearly three hours, or roughly half the 

distance to Pittsburgh, Byrd passed State Trooper David 

Long, who was parked in the median of Interstate 81 near 

Harrisburg, Pennsylvania. Long was suspicious of Byrd

because he was driving with his hands at the “10 and 2” 

position on the steering wheel, sitting far back from the 

steering wheel, and driving a rental car. Long knew the 

Ford Fusion was a rental car because one of its windows 

contained a barcode. Based on these observations, he 

decided to follow Byrd and, a short time later, stopped him

for a possible traffic infraction.

When Long approached the passenger window of Byrd’s 

car to explain the basis for the stop and to ask for identification, Byrd was “visibly nervous” and “was shaking and 
4 BYRD v. UNITED STATES

Opinion of the Court

had a hard time obtaining his driver’s license.” Id., at 37. 

He handed an interim license and the rental agreement to 

Long, stating that a friend had rented the car. Long returned to his vehicle to verify Byrd’s license and noticed 

Byrd was not listed as an additional driver on the rental 

agreement. Around this time another trooper, Travis 

Martin, arrived at the scene. While Long processed Byrd’s 

license, Martin conversed with Byrd, who again stated 

that a friend had rented the vehicle. After Martin walked 

back to Long’s patrol car, Long commented to Martin that 

Byrd was “not on the renter agreement,” to which Martin 

replied, “yeah, he has no expectation of privacy.” 3 App. to 

Brief for Appellant in No. 16–1509 (CA3), at 21:40.

A computer search based on Byrd’s identification returned two different names. Further inquiry suggested 

the other name might be an alias and also revealed that 

Byrd had prior convictions for weapons and drug charges 

as well as an outstanding warrant in New Jersey for a 

probation violation. After learning that New Jersey did 

not want Byrd arrested for extradition, the troopers asked 

Byrd to step out of the vehicle and patted him down.

Long asked Byrd if he had anything illegal in the car. 

When Byrd said he did not, the troopers asked for his 

consent to search the car. At that point Byrd said he had 

a “blunt” in the car and offered to retrieve it for them. The 

officers understood “blunt” to mean a marijuana cigarette. 

They declined to let him retrieve it and continued to seek 

his consent to search the car, though they stated they did 

not need consent because he was not listed on the rental 

agreement. The troopers then opened the passenger and 

driver doors and began a thorough search of the passenger 

compartment.

Martin proceeded from there to search the car’s trunk, 

including by opening up and taking things out of a large 

cardboard box, where he found a laundry bag containing 

body armor. At this point, the troopers decided to detain 
Cite as: 584 U. S. ____ (2018) 5 

Opinion of the Court

Byrd. As Martin walked toward Byrd and said he would 

be placing him in handcuffs, Byrd began to run away. A 

third trooper who had arrived on the scene joined Long 

and Martin in pursuit. When the troopers caught up to 

Byrd, he surrendered and admitted there was heroin in 

the car. Back at the car, the troopers resumed their 

search of the laundry bag and found 49 bricks of heroin.

In pretrial proceedings Byrd moved to suppress the 

evidence found in the trunk of the rental car, arguing that 

the search violated his Fourth Amendment rights. Although Long contended at a suppression hearing that the 

troopers had probable cause to search the car after Byrd 

stated it contained marijuana, the District Court denied 

Byrd’s motion on the ground that Byrd lacked “standing” 

to contest the search as an initial matter, 2015 WL 

5038455, *2 (MD Pa., Aug. 26, 2015) (citing United States 

v. Kennedy, 638 F. 3d 159, 165 (CA3 2011)). Byrd later

entered a conditional guilty plea, reserving the right to

appeal the suppression ruling.

The Court of Appeals affirmed in a brief summary opinion. 679 Fed. Appx. 146 (CA3 2017). As relevant here, the 

Court of Appeals recognized that a “circuit split exists as 

to whether the sole occupant of a rental vehicle has a 

Fourth Amendment expectation of privacy when that 

occupant is not named in the rental agreement”; but it 

noted that Circuit precedent already had “spoken as to 

this issue . . . and determined such a person has no expectation of privacy and therefore no standing to challenge a 

search of the vehicle.” Id., at 150 (citing Kennedy, supra, 

at 167–168). The Court of Appeals did not reach the 

probable-cause question.

This Court granted Byrd’s petition for a writ of certiorari, 582 U. S. ___ (2017), to address the conflict among the

Courts of Appeals over whether an unauthorized driver 

has a reasonable expectation of privacy in a rental car. 

Compare United States v. Seeley, 331 F. 3d 471, 472 (CA5 
6 BYRD v. UNITED STATES

Opinion of the Court

2003) (per curiam); United States v. Wellons, 32 F. 3d 117, 

119 (CA4 1994); United States v. Roper, 918 F. 2d 885, 

887–888 (CA10 1990), with United States v. Smith, 263 

F. 3d 571, 581–587 (CA6 2001); Kennedy, supra, at 165–

168, and with United States v. Thomas, 447 F. 3d 1191, 

1196–1199 (CA9 2006); United States v. Best, 135 F. 3d 

1223, 1225 (CA8 1998).

II

Few protections are as essential to individual liberty as 

the right to be free from unreasonable searches and seizures. The Framers made that right explicit in the Bill of 

Rights following their experience with the indignities and 

invasions of privacy wrought by “general warrants and 

warrantless searches that had so alienated the colonists 

and had helped speed the movement for independence.” 

Chimel v. California, 395 U. S. 752, 761 (1969). Ever 

mindful of the Fourth Amendment and its history, the 

Court has viewed with disfavor practices that permit 

“police officers unbridled discretion to rummage at will 

among a person’s private effects.” Arizona v. Gant, 556 

U. S. 332, 345 (2009).

This concern attends the search of an automobile. See 

Delaware v. Prouse, 440 U. S. 648, 662 (1979). The Court 

has acknowledged, however, that there is a diminished

expectation of privacy in automobiles, which often permits 

officers to dispense with obtaining a warrant before conducting a lawful search. See, e.g., California v. Acevedo, 

500 U. S. 565, 579 (1991).

Whether a warrant is required is a separate question 

from the one the Court addresses here, which is whether

the person claiming a constitutional violation “has had his 

own Fourth Amendment rights infringed by the search 

and seizure which he seeks to challenge.” Rakas v. Illinois, 439 U. S. 128, 133 (1978). Answering that question 

requires examination of whether the person claiming the 
Cite as: 584 U. S. ____ (2018) 7 

Opinion of the Court

constitutional violation had a “legitimate expectation of 

privacy in the premises” searched. Id., at 143. “Expectations of privacy protected by the Fourth Amendment, of 

course, need not be based on a common-law interest in 

real or personal property, or on the invasion of such an 

interest.” Id., at 144, n. 12. Still, “property concepts” are 

instructive in “determining the presence or absence of the 

privacy interests protected by that Amendment.” Ibid.

Indeed, more recent Fourth Amendment cases have 

clarified that the test most often associated with legitimate expectations of privacy, which was derived from the 

second Justice Harlan’s concurrence in Katz v. United 

States, 389 U. S. 347 (1967), supplements, rather than 

displaces, “the traditional property-based understanding 

of the Fourth Amendment.” Florida v. Jardines, 569 U. S. 

1, 11 (2013). Perhaps in light of this clarification, Byrd 

now argues in the alternative that he had a common-law 

property interest in the rental car as a second bailee that 

would have provided him with a cognizable Fourth 

Amendment interest in the vehicle. But he did not raise 

this argument before the District Court or Court of Appeals, and those courts did not have occasion to address 

whether Byrd was a second bailee or what consequences 

might follow from that determination. In those courts he 

framed the question solely in terms of the Katz test noted 

above. Because this is “a court of review, not of first view,” 

Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), it is 

generally unwise to consider arguments in the first instance, and the Court declines to reach Byrd’s contention 

that he was a second bailee.

Reference to property concepts, however, aids the Court 

in assessing the precise question here: Does a driver of a 

rental car have a reasonable expectation of privacy in the 

car when he or she is not listed as an authorized driver on 

the rental agreement?
8 BYRD v. UNITED STATES

Opinion of the Court

III

A 

One who owns and possesses a car, like one who owns 

and possesses a house, almost always has a reasonable 

expectation of privacy in it. More difficult to define and 

delineate are the legitimate expectations of privacy of 

others. 

On the one hand, as noted above, it is by now well established that a person need not always have a recognized 

common-law property interest in the place searched to be 

able to claim a reasonable expectation of privacy in it. See

Jones v. United States, 362 U. S. 257, 259 (1960); Katz, 

supra, at 352; Mancusi v. DeForte, 392 U. S. 364, 368 

(1968); Minnesota v. Olson, 495 U. S. 91, 98 (1990).

On the other hand, it is also clear that legitimate presence on the premises of the place searched, standing alone, 

is not enough to accord a reasonable expectation of privacy,

because it “creates too broad a gauge for measurement 

of Fourth Amendment rights.” Rakas, 439 U. S., at 142; 

see also id., at 148 (“We would not wish to be understood 

as saying that legitimate presence on the premises is 

irrelevant to one’s expectation of privacy, but it cannot be 

deemed controlling”); Minnesota v. Carter, 525 U. S. 83, 91 

(1998).

Although the Court has not set forth a single metric or 

exhaustive list of considerations to resolve the circumstances in which a person can be said to have a reasonable 

expectation of privacy, it has explained that “[l]egitimation 

of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to 

concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas,

439 U. S., at 144, n. 12. The two concepts in cases like 

this one are often linked. “One of the main rights attaching to property is the right to exclude others,” and, in the 

main, “one who owns or lawfully possesses or controls 
Cite as: 584 U. S. ____ (2018) 9 

Opinion of the Court

property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.” Ibid.

(citing 2 W. Blackstone, Commentaries on the Laws of 

England, ch. 1). This general property-based concept 

guides resolution of this case.

B 

Here, the Government contends that drivers who are 

not listed on rental agreements always lack an expectation 

of privacy in the automobile based on the rental company’s 

lack of authorization alone. This per se rule rests on too 

restrictive a view of the Fourth Amendment’s protections. 

Byrd, by contrast, contends that the sole occupant of a 

rental car always has an expectation of privacy in it based 

on mere possession and control. There is more to recommend Byrd’s proposed rule than the Government’s; but, 

without qualification, it would include within its ambit 

thieves and others who, not least because of their lack of 

any property-based justification, would not have a reasonable expectation of privacy.

1 

Stripped to its essentials, the Government’s position is 

that only authorized drivers of rental cars have expectations of privacy in those vehicles. This position is based on 

the following syllogism: Under Rakas, passengers do not

have an expectation of privacy in an automobile glove 

compartment or like places; an unauthorized driver like 

Byrd would have been the passenger had the renter been 

driving; and the unauthorized driver cannot obtain greater 

protection when he takes the wheel and leaves the renter

behind. The flaw in this syllogism is its major premise, for 

it is a misreading of Rakas. 

The Court in Rakas did not hold that passengers cannot

have an expectation of privacy in automobiles. To the 

contrary, the Court disclaimed any intent to hold “that a 
10 BYRD v. UNITED STATES

Opinion of the Court

passenger lawfully in an automobile may not invoke the 

exclusionary rule and challenge a search of that vehicle 

unless he happens to own or have a possessory interest in 

it.” 439 U. S., at 150, n. 17 (internal quotation marks 

omitted). The Court instead rejected the argument that 

legitimate presence alone was sufficient to assert a Fourth 

Amendment interest, which was fatal to the petitioners’ 

case there because they had “claimed only that they were 

‘legitimately on [the] premises’ and did not claim that they 

had any legitimate expectation of privacy in the areas of 

the car which were searched.” Ibid.

What is more, the Government’s syllogism is beside the 

point, because this case does not involve a passenger at all

but instead the driver and sole occupant of a rental car. 

As Justice Powell observed in his concurring opinion in 

Rakas, a “distinction . . . may be made in some circumstances between the Fourth Amendment rights of passengers and the rights of an individual who has exclusive 

control of an automobile or of its locked compartments.” 

Id., at 154. This situation would be similar to the defendant in Jones, supra, who, as Rakas notes, had a reasonable 

expectation of privacy in his friend’s apartment because he 

“had complete dominion and control over the apartment 

and could exclude others from it,” 439 U. S., at 149. Justice Powell’s observation was also consistent with the 

majority’s explanation that “one who owns or lawfully 

possesses or controls property will in all likelihood have a 

legitimate expectation of privacy by virtue of [the] right to 

exclude,” id., at 144, n. 12, an explanation tied to the 

majority’s discussion of Jones. 

The Court sees no reason why the expectation of privacy 

that comes from lawful possession and control and the 

attendant right to exclude would differ depending on 

whether the car in question is rented or privately owned 

by someone other than the person in current possession of 

it, much as it did not seem to matter whether the friend of 
Cite as: 584 U. S. ____ (2018) 11

Opinion of the Court

the defendant in Jones owned or leased the apartment he 

permitted the defendant to use in his absence. Both would 

have the expectation of privacy that comes with the right 

to exclude. Indeed, the Government conceded at oral 

argument that an unauthorized driver in sole possession 

of a rental car would be permitted to exclude third parties 

from it, such as a carjacker. Tr. of Oral Arg. 48–49.

2 

The Government further stresses that Byrd’s driving the 

rental car violated the rental agreement that Reed signed, 

and it contends this violation meant Byrd could not have 

had any basis for claiming an expectation of privacy in the 

rental car at the time of the search. As anyone who has 

rented a car knows, car-rental agreements are filled with 

long lists of restrictions. Examples include prohibitions on 

driving the car on unpaved roads or driving while using a 

handheld cellphone. Few would contend that violating 

provisions like these has anything to do with a driver’s 

reasonable expectation of privacy in the rental car—as 

even the Government agrees. Brief for United States 32.

Despite this concession, the Government argues that 

permitting an unauthorized driver to take the wheel of a 

rental car is a breach different in kind from these others, 

so serious that the rental company would consider the 

agreement “void” the moment an unauthorized driver 

takes the wheel. Id., at 4, 15, 16, 27. To begin with, that 

is not what the contract says. It states: “Permitting an 

unauthorized driver to operate the vehicle is a violation of 

the rental agreement. This may result in any and all 

coverage otherwise provided by the rental agreement 

being void and my being fully responsible for all loss or 

damage, including liability to third parties.” App. 24 

(emphasis deleted).

Putting the Government’s misreading of the contract 

aside, there may be countless innocuous reasons why an 
12 BYRD v. UNITED STATES

Opinion of the Court

unauthorized driver might get behind the wheel of a rental 

car and drive it—perhaps the renter is drowsy or inebriated 

and the two think it safer for the friend to drive them to 

their destination. True, this constitutes a breach of the 

rental agreement, and perhaps a serious one, but the 

Government fails to explain what bearing this breach of 

contract, standing alone, has on expectations of privacy in 

the car. Stated in different terms, for Fourth Amendment 

purposes there is no meaningful difference between the 

authorized-driver provision and the other provisions the 

Government agrees do not eliminate an expectation of 

privacy, all of which concern risk allocation between private parties—violators might pay additional fees, lose 

insurance coverage, or assume liability for damage resulting from the breach. But that risk allocation has little to 

do with whether one would have a reasonable expectation 

of privacy in the rental car if, for example, he or she otherwise has lawful possession of and control over the car.

3 

The central inquiry at this point turns on the concept of 

lawful possession, and this is where an important qualification of Byrd’s proposed rule comes into play. Rakas

makes clear that “‘wrongful’ presence at the scene of a 

search would not enable a defendant to object to the legality of the search.” 439 U. S., at 141, n. 9. “A burglar plying

his trade in a summer cabin during the off season,” for 

example, “may have a thoroughly justified subjective 

expectation of privacy, but it is not one which the law 

recognizes as ‘legitimate.’” Id., at 143, n. 12. Likewise, “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., at 141, n. 9. No matter the degree of 

possession and control, the car thief would not have a 

reasonable expectation of privacy in a stolen car.

On this point, in its merits brief, the Government as-
Cite as: 584 U. S. ____ (2018) 13

Opinion of the Court

serts that, on the facts here, Byrd should have no greater 

expectation of privacy than a car thief because he intentionally used a third party as a strawman in a calculated 

plan to mislead the rental company from the very outset, 

all to aid him in committing a crime. This argument is 

premised on the Government’s inference that Byrd knew 

he would not have been able to rent the car on his own, 

because he would not have satisfied the rental company’s 

requirements based on his criminal record, and that he 

used Reed, who had no intention of using the car for her 

own purposes, to procure the car for him to transport 

heroin to Pittsburgh.

It is unclear whether the Government’s allegations, if 

true, would constitute a criminal offense in the acquisition 

of the rental car under applicable law. And it may be that 

there is no reason that the law should distinguish between

one who obtains a vehicle through subterfuge of the type 

the Government alleges occurred here and one who steals 

the car outright.

 The Government did not raise this argument in the 

District Court or the Court of Appeals, however. It relied 

instead on the sole fact that Byrd lacked authorization to 

drive the car. And it is unclear from the record whether 

the Government’s inferences paint an accurate picture of 

what occurred. Because it was not addressed in the District Court or Court of Appeals, the Court declines to reach

this question. The proper course is to remand for the 

argument and potentially further factual development to 

be considered in the first instance by the Court of Appeals 

or by the District Court.

IV

The Government argued in its brief in opposition to 

certiorari that, even if Byrd had a Fourth Amendment 

interest in the rental car, the troopers had probable cause 

to believe it contained evidence of a crime when they 
14 BYRD v. UNITED STATES

Opinion of the Court

initiated their search. If that were true, the troopers may

have been permitted to conduct a warrantless search of 

the car in line with the Court’s cases concerning the automobile exception to the warrant requirement. See, e.g., 

Acevedo, 500 U. S., at 580. The Court of Appeals did not 

reach this question because it concluded, as an initial 

matter, that Byrd lacked a reasonable expectation of 

privacy in the rental car.

It is worth noting that most courts analyzing the question presented in this case, including the Court of Appeals 

here, have described it as one of Fourth Amendment 

“standing,” a concept the Court has explained is not distinct from the merits and “is more properly subsumed 

under substantive Fourth Amendment doctrine.” Rakas, 

supra, at 139.

The concept of standing in Fourth Amendment cases can 

be a useful shorthand for capturing the idea that a person 

must have a cognizable Fourth Amendment interest in the 

place searched before seeking relief for an unconstitutional

search; but it should not be confused with Article III 

standing, which is jurisdictional and must be assessed 

before reaching the merits. Arizona Christian School 

Tuition Organization v. Winn, 563 U. S. 125, 129 (2011) 

(“To obtain a determination on the merits in federal court, 

parties seeking relief must show that they have standing 

under Article III of the Constitution”); see also Rakas, 

supra, at 138–140. Because Fourth Amendment standing 

is subsumed under substantive Fourth Amendment doctrine, it is not a jurisdictional question and hence need not 

be addressed before addressing other aspects of the merits 

of a Fourth Amendment claim. On remand, then, the 

Court of Appeals is not required to assess Byrd’s reasonable expectation of privacy in the rental car before, in its 

discretion, first addressing whether there was probable 

cause for the search, if it finds the latter argument has 

been preserved.
Cite as: 584 U. S. ____ (2018) 15

Opinion of the Court

V 

Though new, the fact pattern here continues a welltraveled path in this Court’s Fourth Amendment jurisprudence. Those cases support the proposition, and the Court

now holds, 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. The Court leaves for remand two 

of the Government’s arguments: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no 

better situated than a car thief; and that probable cause 

justified the search in any event. The Court of Appeals 

has discretion as to the order in which these questions are 

best addressed.

* * * 

The judgment of the Court of Appeals is vacated, and 

the case is remanded for further proceedings consistent 

with this opinion.

It is so ordered.
Cite as: 584 U. S. ____ (2018) 1 

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES _________________ 

No. 16–1371

_________________ 

TERRENCE BYRD, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT

[May 14, 2018]

 JUSTICE THOMAS, with whom JUSTICE GORSUCH joins, 

concurring.

Although I have serious doubts about the “reasonable 

expectation of privacy” test from Katz v. United States, 

389 U. S. 347, 360–361 (1967) (Harlan, J., concurring), I 

join the Court’s opinion because it correctly navigates our 

precedents, which no party has asked us to reconsider. As 

the Court notes, Byrd also argued that he should prevail 

under the original meaning of the Fourth Amendment 

because the police interfered with a property interest that 

he had in the rental car. I agree with the Court’s decision 

not to review this argument in the first instance. In my 

view, it would be especially “unwise” to reach that issue, 

ante, at 7, because the parties fail to adequately address 

several threshold questions. 

The Fourth Amendment guarantees the people’s right to 

be secure from unreasonable searches of “their persons, 

houses, papers, and effects.” With this language, the 

Fourth Amendment gives “each person . . . the right to be 

secure against unreasonable searches and seizures in his 

own person, house, papers, and effects.” Minnesota v.

Carter, 525 U. S. 83, 92 (1998) (Scalia, J., concurring). 

The issue, then, is whether Byrd can prove that the rental 

car was his effect.

That issue seems to turn on at least three threshold 

questions. First, what kind of property interest do indi-
2 BYRD v. UNITED STATES

THOMAS, J., concurring

viduals need before something can be considered “their . . . 

effec[t]” under the original meaning of the Fourth 

Amendment? Second, what body of law determines 

whether that property interest is present—modern state 

law, the common law of 1791, or something else? Third, is 

the unauthorized use of a rental car illegal or otherwise 

wrongful under the relevant law, and, if so, does that 

illegality or wrongfulness affect the Fourth Amendment 

analysis?

The parties largely gloss over these questions, but the 

answers seem vitally important to assessing whether Byrd 

can claim that the rental car is his effect. In an appropriate case, I would welcome briefing and argument on these 

questions. 
Cite as: 584 U. S. ____ (2018) 1 

ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES _________________ 

No. 16–1371

_________________ 

TERRENCE BYRD, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE THIRD CIRCUIT

[May 14, 2018]

 JUSTICE ALITO, concurring.

The Court holds that an unauthorized driver of a rental 

car is not always barred from contesting a search of the 

vehicle. Relevant questions bearing on the driver’s ability 

to raise a Fourth Amendment claim may include: the 

terms of the particular rental agreement, see ante, at 11–

12; the circumstances surrounding the rental, ante, at 13; 

the reason why the driver took the wheel, ante, at 11–12; 

any property right that the driver might have, ante, at 7; 

and the legality of his conduct under the law of the State 

where the conduct occurred, ante, at 12–13. On remand, 

the Court of Appeals is free to reexamine the question 

whether petitioner may assert a Fourth Amendment claim 

or to decide the appeal on another appropriate ground. 

Ante, at 14–15. On this understanding, I join the opinion 

of the Court.