Borrower of rental car generally lacks expectation of privacy in that rental car.

In United States v. Kennedy, No. 09-1980 (March 16, 2011), the Third Circuit affirmed the denial of a suppression motion by a driver of a rental car that was not rented in his name. Police had arrested defendant Kennedy on an outstanding warrant, and searching a nearby rental car that he had borrowed from his girlfriend – the authorized driver – police found guns and drugs inside the car. Defendant moved to suppress the evidence found in the car, asserting a legitimate expectation of privacy in its contents. The District Court denied the motion. After a two-day trial, the jury found Kennedy guilty on three counts of drug and firearms charges. The District Court sentenced him to 300 months in prison.

On appeal, the Third Circuit affirmed. Surveying decisions in the Circuits, the Court observed that while there may be agreement that an authorized driver on the rental agreement will generally have an expectation of privacy “due to his possessory and property interest in the vehicle,” the Circuits are split on whether that same expectation of privacy should be accorded to a driver who has been lent the car by the renter, but is not listed on the rental agreement as an authorized driver. The Court noted that the Eighth and Ninth Circuits have held that an unauthorized driver has an expectation of privacy when he has the renter’s permission, but that the majority of Circuits – Fourth, Fifth, Sixth, Seventh, and Tenth Circuits – hold to the contrary. The Third Circuit joined the majority in holding that “the lack of a cognizable property interest in the rental vehicle . . . makes it generally unreasonable for an unauthorized driver to expect privacy in the vehicle.”

The Court did note, however, that an extraordinary circumstance – not present here – might give rise to an exception to that general rule; as, for example, where the unauthorized driver was not only the authorized driver's spouse, but he had also contacted the rental car company to reserve the car in his name with his credit card, which was billed for the rental.