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01/06/2018

Orin Kerr on Collins v. Virginia and Byrd v. United States
Michael Ramsey

At Volokh Conspiracy, Orin Kerr has interesting posts (here and here) on two upcoming Supreme Court cases involving the Fourth Amendment: Collins v. Virginia and Byrd v. United StatesCollins poses the question whether police can look under a tarp on private property where they have reason to believe that (a) there is a motorcycle under the tarp and (b) the motorcycle has been involved in a crime -- but they have no warrant.  Byrd asks whether the driver of a rental car can object to a search if the driver is not listed as an approved driver in the rental contract.

Professor Kerr's analysis is doctrinal and from his as-always outstanding assessments, the cases both sound rather difficult, because they involve areas where the Court has made up an array of not-always-consistent rules.

I'm not a Fourth Amendment scholar but I wonder if an originalist analysis makes both cases a lot easier.  As to Byrd, the Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" (emphasis added).  The unauthorized driver is not party to the rental contract (I assume) so the car is not in any sense "their" property, even on a temporary basis.  So, no Fourth Amendment right.  Affirmed.

As to Collins, looking under the tarp (and even being on the property) is a search, the police have no warrant, and the only originalist exception to the warrant requirement is hot pursuit (according to Laura Donohue's masterpiece The Original Fourth Amendment).  The police were not in hot pursuit.  So, a Fourth Amendment violation.  Reversed.

That was easy.  (Of course it's always easier when you don't know the area and ignore the doctrine).