Brief of Amicus Curiae for Professor Morgan Cloud in Support of the Petitioner

In Jones v. United States, 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2013), the Supreme Court held that when the government physically intrudes into a constitutionally protected area to obtain information, the Court relies upon property-based theories to determine whether a "search" occurred. These decisions recognized that property and reasonable expectation of privacy theories serve completementary functions in Fourth Amendment jurisprudence. Fourth Amendment standing traditionally was linked to property rights, but in recent years property has been supplanted by a reasonable- expectation-of-privacy model intended to determine whether a person's substantive Fourth Amendment rights were violated. Nonetheless, the Supreme Court has frequently turned to property rules and concepts to help it determine whether a reasonable expectation of privacy was violated. Applying traditional property law rules, the Petitioner in this case (Mr. Byrd) was a bailee who has standing to challenge the search of the automobile he was driving. Under traditional bailment principles, he became a bailee when the renter of the vehicle (Ms. Reed) gave him possession and control of the automobile. The Petitioner also has "standing" under the more recent reasonable expectation of privacy test. Among the factors the Supreme Court has considered in deciding if a person has standing are whether the person had dominion and control over the property, whether he had the right to exclude others, and whether he had property related interests like ownership or possession. Using those criteria, Mr. Byrd has Fourth Amendment "standing" under the reasonable expectation of privacy test.