Amicus Curiae Brief — Byrd v. United States, 138 S. Ct. 54 (2017) (No. 16-1371)

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No. 16-1371

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IN THE

Supreme Court of the United States

TERRENCE BYRD,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

BRIEF OF NATIONAL MOTORISTS ASSOCIATION

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

AARON M. PANNER

Counsel of Record

THOMAS B. BENNETT

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK,

P. L. L. C.

1615 M Street, NW.

Suite 400

Washington, D.C. 20036

(202) 326-7900

November 20, 2017 (apanner@kellogghansen.com)

—

TABLE OF CONTENTS

Page

r ii

INTEREST OF AMICUS CURIA ..... 1

SUMMARY OF ARGUMENT. 2

s 11 3

I. THE RISE OF CAR AND RIDE-

SHARING SERVICES MAKES

RELIANCE ON CONTRACTUAL

AUTHORIZATION AS THE BASIS

FOR FOURTH AMENDMENT

PROTECTION UNADMINISTRABLE

II. THE RULE APPLIED BELOW

INVITES ABUSIVE ASSET-

A. Law-Enforcement Officers in Juris-

dictions Subject to the Rule Applied

B. Civil Asset Forfeiture Gives Law

Enforcement Financial Incentives

To Stop and To Search Vehicles il

C. The Rule Applied Below Magnifies

Incentives Created by Civil Asset

e . et ee 16

— —— — ——ĩ— G 16

TABLE OF AUTHORITIES

Page

CASES

Brendlin v. California, 551 U.S. 249 (2007) 10

Jones v. United States, 362 U.S. 257 (1960) .............. 3

Leonard v. Texas, 137 S. Ct. 847 (2017)...12, 13, 14, 15

Meyer v. Uber Techs., Inc., 868 F. 3d 66 (2d Cir.

CONSTITUTION, STATUTES, AND RULES

U.S. Const. amend. IVb. 1, 2, 3, 4, 7, 10, 16

e ⁊ 12

725 Ill. Comp. Stat. 150/(0C)( 2) 15

725 III. Comp. Stat. 150/(C)(3)— 15

75 Pa. Cons. Stat. F 3313(d)(1)(i)-(ii)........................ 11

Sup. Ct. R.

— . 1

OTHER MATERIALS

Boston Consulting Group, What's Ahead

for Car Sharing?: Trajectory of Growth

and Revenues, http://ocgperspectives.com/

content/articles/automotive-whats-ahead-

vehicle-sales/?chapter=7#chapter7 ....................... 5

car2go:

Frequently Asked Questions Can I share

my car2go account?, https://www.car2go.

com/US/en/faq/ (last visited Nov. 16, 2017)....... 6,7

How It Works, https://www.car2go.com/US/

en/#152742 (last visited Nov. 16, 2017) 6

Dick M. Carpenter II, Lisa Knepper, Angela

C. Erickson & Jennifer McDonald, Inst. for

Justice, Policing for Profit: The Abuse of

Civil Asset Forfeiture (2d ed. Nov. 2015),

http://ij.org/wp-content/uploads/20 15/1 1/

policing-for-profit-2nd-edition.pdf f 12, 15

Getaround:

How It Works, https://www.getaround.com/

tour (last visited Nov. 16, 2017) 6

Renter Policy, https://www.getaround.com/

terms/renter (last visited Nov. 16, 2017) 7

lan Hathaway & Mark Muro, Brookings,

Ridesharing Hits Hyper-Growth (June 1,

2017), https://www.brookings.edu/blog/the-

avenue/2017/06/0 1/ridesharing-hits-hyper-

Robert A. Hillman & Jeffrey J. Rachlinski,

Standard-Form Contracting in the Elec-

tronic Age, 77 N.Y.U. L. Rev. 429 (2002),

http://scholarship.law.cornell.edu/cgi/view-

content.cgi?article= 1662&context=

Christopher Ingraham, Wonkblog, Law

Enforcement Took More Stuff From People

Than Burglars Did Last Year, Wash. Post

(Nov. 23, 2015), https://www.washington

post.com/news/wonk/wp/20 15/1 1/23/cops-

took-more-stuff-from-people-than-burglars-

IIIT ·!x————... ee

Lyft, Lyſt Terms of Service (last updated Sept.

30, 2016), https://www.lyft.com/terms....................

Office of the Att'y Gen., Order No. 3946-2017

(July 19, 2017), https://www.justice.gov/

file/9826 11/ downloaded

Irma S. Russell, Got Wheels? Article 2A,

Standardized Rental Car Terms, Rational

Inaction, and Unilateral Private Ordering,

40 Loy. L.A. L. Rev. 137 (2006), http://

scholarship.law.umt.edu/cgi/viewcontent.

cgi?article=1073&context=faculty_law

Michael Sallah, Robert O’Harrow Jr., Steven

Rich & Gabe Silverman, Stop and Seize,

Wash. Post (Sept. 6, 2014), http://www.

washingtonpost.com/sf/investigative/20 1 4/

09/06/stop-and-seize/?utm_term=.

GB less Gai 18 11-12, 13,

Aaron Smith, Pew Research Ctr., Shared,

Collaborative and On Demand: The New

Digital Economy (May 2016), http://assets.

pewresearch.org/wp-content/uploads/

sites/14/2016/05/P1_2016.05.19_Sharing-

Economy. FINAL. pdf. . . ... . ... . . .

Sarah Stillman, Taken, The New Yorker (Aug.

12 & 19, 2013), https://www.newyorker.

com/magazine/20 13/08/12/taken .........................

U.S. Dep’t of Justice, Office of the Inspector

General, Evaluation & Inspections Div.

17-02, Review of the Department’s Oversight

of Cash Seizure and Forfeiture Activities

(Mar. 2017), https://oig.justice.gov/reports/

— ( 15

Uber, U.S. Terms of Use (effec. Mar. 23, 2017),

https://www.uber.com/legal/terms/us ............... 8,9

Zipear:

Allowed Drivers, https://support.zipcar.

com/hc/en-us/articles/220676487 -Allowed-

Drivers (last visited Nov. 16, 2017) 6, 7

How Does Zipcar Work?, http://www.zip-

— Ü —A— 5 6

INTEREST OF AMICUS CURIAE'!

Amicus National Motorists Association (“NMA”) is

a membership-based organization founded in 1982 to

protect and uphold the rights of the driving public.

NMA members, located in all 50 States and the

District of Columbia, are keenly interested in main-

taining safe and responsible highway travel. NMA’s

activities include advocacy for fair traffic laws and for

law-enforcement actions that conform to legal and

constitutional standards. NMA also seeks to promote

greater trust and mutual respect among the nation’s

250 million licensed drivers and law enforcement.

NMA therefore has an interest in the correct interpre-

tation and vigorous enforcement of the Fourth Amend-

ment’s protection against unreasonable search and

seizure.

The purpose of this brief is to bring to the Court's

attention two considerations that counsel against the

rule applied by the Third Circuit in the decision on

review. The first is the rise of car- and ride-sharing

services. By departing from the standard-form

contracts governing rental-car agreements, the rise

of car- and ride-sharing services underscores the

unadministrability of any Fourth Amendment rule

premised on contractual restrictions rather than

individuals’ reasonable expectations of privacy.

Second, NMA is concerned that the Third Circuit's

rule abets and exacerbates the abuse of civil asset

' Pursuant to Supreme Court Rule 37.6, counsel for amicus

represents that it authored this brief in its entirety and that none

of the parties or their counsel, nor any other person or entity

other than amicus or its counsel, made a monetary contribution

intended to fund the preparation or submission of this brief.

Pursuant to Rule 37.3(a), counsel for amicus also represents that

all parties have consented to the filing of this brief.

forfeiture laws by law-enforcement officials. Courts

and commentators have recognized that financial

incentives may prompt law-enforcement officials to

seek out opportunities to seize motorists’ assets

through asset forfeiture. A rule that denies Fourth

Amendment protection to many motorists threatens

to further accelerate existing abuses.

SUMMARY OF ARGUMENT

I. Car- and ride-sharing services rely on terms of

service that differ in significant ways from traditional

rental-car agreements. The rapid growth of such

services guarantees that lower courts increasingly

will confront questions about how to apply the rule

at issue in this case to customers of such services.

Because car- and ride-sharing services do not label

drivers or passengers as “authorized” in the same way

as traditional rental-car agencies, the Third Circuit’s

rule will raise a host of administrability problems that

application of the “reasonable expectation of privacy”

standard proposed by petitioner would avoid.

II. Because the Third Circuit’s rule guarantees

that a significant number of drivers of rental cars will

be without Fourth Amendment protection, that rule

creates “sitting ducks” for potentially abusive law-

enforcement activity. As this case illustrates, law

enforcement often can spot rental cars, which, under

the Third Circuit’s rule, may be subject to search

even without reasonable suspicion of any crime. The

importance of avoiding that result is underscored by

the growth of civil asset forfeiture, which itself has

given rise to abuses that the Third Circuit’s rule

threatens to make worse.

ARGUMENT

Petitioner has explained why he had a reasonable

expectation of privacy when driving his fiancée’s

rental car: he was in possession and control of the

vehicle and could exclude third parties from gaining

access to it. Petitioner also has explained that the

terms of the rental-car agreement between petition-

er's fiancée and the rental-car agency do not control

whether the driver of a vehicle has such a reasonable

expectation of privacy. Indeed, this Court “adhere[s]

to the view expressed in Jones |v. United States, 362

U.S. 257 (1960),] and echoed in later cases that arcane

distinctions developed in property and tort law

between guests, licensees, invitees, and the like, ought

not to control” the Fourth Amendment analysis.

Rakas v. Illinois, 439 U.S. 128, 143 (1978).

This brief offers two additional observations about

the Fourth Amendment standard applied by the

court below. The first is that, in a world of car-

and ride-sharing, the suggestion that an individual's

reasonable expectation of privacy turns on the degree

of “authorization” to operate a particular vehicle

implicates administrative complexity that would take

the governing standard ever further from the reason-

able expectation of privacy that is the touchstone

of the Fourth Amendment. The second is that the

bright-line distinction that the Third Circuit draws —

when applied to a traditional rental-car arrangement

like the one at issue here — provides an open invitation

to improper and potentially abusive traffic stops and

searches.

I. THE RISE OF CAR- AND RIDE-SHARING

SERVICES MAKES RELIANCE ON

CONTRACTUAL AUTHORIZATION AS THE

BASIS FOR FOURTH AMENDMENT

PROTECTION UNADMINISTRABLE AND

OBSOLETE

It might be argued that, whatever the infirmities of

the rule applied below, at least it is clear: a quick look

at the rental-car agreement tells the law-enforcement

officer whether the Fourth Amendment applies or not.

As we discuss below, where this bright-line distinction

comes into play, it invites rather than discourages

abuse. Furthermore, any administrative benefit is

sharply limited by marketplace developments.

The rental-car agreement at issue in this case is

a traditional one between a brick-and-mortar agency

(Budget) and an individual renter.2 But rental-car

agencies are not, of course, the exclusive way to secure

short-term use of cars in the marketplace. The rise

of the “sharing economy” means that drivers can

now increasingly choose to use car- and ride-sharing

services, which are growing rapidly, instead.

2 The standard rental agreement in this case is familiar to

anyone who has rented a car from a traditional rental-car agency.

Indeed, the rental-car contract often is cited as an exemplar of

standard-form contracts. See, e.g., Robert A. Hillman & Jeffrey

J. Rachlinski, Standard-Form Contracting in the Electronic Age,

77 N.Y.U. L. Rev. 429, 437 & n.39 (2002) (collecting instances

in which rental-car agreements are used as exemplars of form

contracts), http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?

article=1662&context=facpub; Irma S. Russell, Got Wheels?

Article 2A, Standardized Rental Car Terms, Rational Inaction,

and Unilateral Private Ordering, 40 Loy. L.A. L. Rev. 137, 144

& n.55, 184 & tbl. 1 (2006) (Currently, the top ten rental car

companies all use form contracts.”), http://scholarship.law.umt.edu/

cgi/viewcontent.cgi?article=1073&context=faculty_lawreviews.

In the sharing economy, the analogue to the tradi-

tional rental agreement is significantly more complex.

Rather than one standard-form contract that governs

nearly every rental on substantially similar terms,

each service creates terms of use consistent with its

business model. See, e.g., Meyer v. Uber Techs., Inc.,

868 F.3d 66, 76-80 (2d Cir. 2017) (describing Uber’s

apply to only a portion of the web of economic relation-

ships between service, driver, rider, and car owner.

And, unlike with traditional rental agreements, it can

be significantly more difficult for police officers to know

who is an authorized user under sharing-economy

analogues.

Determining whether a motorist’s or passenger's

expectation of privacy is reasonable in cases of

vehicles rented from a car- or ride-sharing service

would be difficult if that question were governed

by contractual relationships and property rights.

Car- and ride-sharing services operate according to

different business models that employ terms of use

tailored to the particular model, and they vary in the

degree to which they require prior authorization for

third-party drivers and passengers.

1. For example, car-sharing services like Zipcar,

car2go, Getaround, Enterprise CarShare, Hertz 24/7,

and Maven offer to rent cars for time periods shorter

than a day, with flexible pick-up and drop-off locations.

Boston Consulting Group estimates that, by 2021,

6 million people in North America will be registered

users of a vehicle-sharing service.“ Some car-sharing

3 See Boston Consulting Group, Nhat s Ahead for Car Sharing?:

Trajectory of Growth and Revenues, http://ocgperspectives.

com/content/articles/automotive-whats-ahead-car-sharing-new-

mobility-its-impact-vehicle-sales/?chapter=7#chapter7.

companies —such as Zipcar and car2go — typically

operate on a membership model. Customers pay a fee

either monthly or upon registration, which gives them

the right to use any available vehicle on demand or

on very short notice.! Other car-sharing services are

offered on a peer-to-peer basis: Users sign up to offer

their own vehicles for rent by other users, with the

sharing company acting as an intermediary.®

Membership-based car-sharing services typically

restrict driving rights to members. For example,

Zipcar's agreement permits other Zipcar members to

drive rented vehicles, but only if accompanied by the

reserving member and only if listed on that member’s

online account — but not any written rental agree-

ment.“ Similarly, car2go allows members to register

additional “Co-Drivers” on a single online account.’

By contrast, peer-to-peer rental services involve

cars that are owned by participants in the peer-to-peer

network, rather than cars owned by the service itself.

Such services often provide more liberal authoriza-

tion. Peer-to-peer service Getaround allows renters to

let any person who meets its eligibility requirements

(which relate to age, criminal history, and cense

status) drive cars rented from other users, with no

4 See, e.g., Zipcar, How Does Zipcar Work?, http://www.zipcar.

com/how; car2go, How It Works, https://www.car2go.com/US/en/

#152742 (last visited Nov. 16, 2017).

5 See, e. g., Getaround, How It Works, https://www.getaround.

com/tour (last visited Nov. 16, 2017).

6 See Zipcar, Allowed Drivers (Only active members are

allowed to drive Zipcars.”), https://support.zipcar.com/hc/en-us/

articles/220676487-Allowed-Drivers (last visited Nov. 16, 2017).

See car2go, Frequently Asked Questions Can I share my

car2go account?, https://www.car2go.com/US/en/faq/ (last visited

Nov. 16, 2017).

obligation to identify such third-party drivers in

advance.®

The variations in car-sharing companies’ terms of

service are unlikely to have any direct impact on

whether a motorist has an expectation of privacy

when she is operating a vehicle. Furthermore, their

very variety — and complexity — demonstrate why

tying Fourth Amendment rights to contractual

arrangements is unworkable in many situations.

In addition, there is a further practical difficulty:

because car-sharing accounts are typically managed

online, there is no physical rental agreement inside

the vehicle that could be inspected by law enforce-

ment.“ To the extent car-sharing services rely on lists

of authorized drivers, co-drivers, or members, those

lists exist in each user’s online account, not on a

carbon-paper contract in the glovebox. For that

reason, the administrative simplicity of the rule

applied below would not exist in cases of car-sharing

vebicles. Cf. JA48 (testimony that arresting officer

was “not required to [contact the rental agency or the

8 See Getaround, Renter Policy (‘You understand and agree

that, should you permit someone else to operate a Car during a

Rental on your account, such person has independently reviewed

and meets our Eligibility Criteria and would be considered

an Authorized Driver at the time of the Rental.”), https://www.

getaround.com/terms/renter (last visited Nov. 16, 2017).

9 See Zipcar, Allowed Drivers (‘Only active members are

allowed to drive Zipcars. You can share the fun of driving only if

your co-pilot is also an active member.), https://support.zipcar.

com/hc/en-us/articles/220676487-Allowed-Drivers (last visited

Nov. 16, 2017); car2go, Frequently Asked Questions Can I share

my car2go account? (“A Co-Driver is someone you trust that you

invite to share payment and/or share recent trip history with.

You can add a Co-Driver from your online account.”), https://

www.car2go.com/US/en/faq/ (last visited Nov. 16, 2017).

person listed on the rental-car agreement] because it

says no other driver permitted and it was a current

contract”).

2. Ride-sharing services like Uber, Lyft, and Via

are growing even more rapidly than car-sharing

services. As of 2016, 15% of adults — and 28% of

18-to-29-year-olds — in the United States had used

such a service.! According to data reported by the

Bureau of Labor Statistics and analyzed by the Brook-

ings Institution, the number of drivers associated with

ride-sharing firms grew by 10% from 2012-2013, 34%

from 2013-2014, and 63% from 2014-2015 (the latest

year for which data are available)“

Ride-sharing companies style themselves as plat-

forms that connect drivers with users, rather than

as livery or rental-car companies in their own right.

Under this model, drivers are contractually deemed to

be independent contractors rather than employees of

the ride-sharing company.'? Ride-sharing companies’

car-sharing services or traditional rental-car agencies.

0 See Aaron Smith, Pew Research Ctr., Shared, Collaborative

and On Demand: The New Digital Economy at 17-18 (May 2016),

http://assets. pewresearch. org/wp-content/uploads/sites/ | 4/20 1 6/

05/P1_2016.05. 19_Sharing-Economy_FI NAL. pdf.

'! See lan Hathaway & Mark Muro, Brookings, Ridesharing

Hits Hyper-Growth (June 1, 2017), https://Awww.brookings.edu/

blog/the-avenue/2017/06/0 1/ridesharing-hits-hyper-growth/.

'2 See, e.g., Uber, U.S. Terms of Use § 3 (effec. Mar. 23, 2017)

(“The Services comprise mobile applications and related services

_.., which enable users to arrange and schedule transportation,

logistics and/or delivery services under agreement with Uber

or certain of Uber’s affiliates (Third Party Providers) ), https

www uber.com/legal/terms/us.

On the one hand, such companies prohibit custom-

ers from allowing other people to use their accounts.

As a result, calling an Uber for a friend or family

member is generally a violation of Uber’s terms of use.

On the other hand, ride-sharing companies typically

do not themselves own the vehicles their customers

ride in; the drivers do. For that reason, each ride is

governed by a new agreement between the driver and

the passenger.“

The introduction of a third party into the web of

overlapping agreements governing a customer's use

of a vehicle means that there are three separate

contracts; by the Third Circuit's reasoning, each of

those may bear on the question whether the passen-

ger’s expectation of privacy is reasonable.

'3 See Uber, U.S. Terms of Use § 4 (effec. Mar. 23, 2017) (“You

may not authorize third parties to use your Account

https://www. uber.com/legal/terms/us; Lyft, Lyſt Terms of Service

§ 3 (ast updated Sept. 30, 2016) (‘You may not allow other

persons to use your User account, and you agree that you are the

sole authorized user of your account.”), https://www.lyft.com/terms.

'4 See Lyft, Lyft Terms of Service § 1 (ast updated Sept. 30,

2016) (‘Each transportation Service provided by a Driver to a

Rider shall constitute a separate agreement between such

persons), https://www.lyft.com/terms. That unwritten contract

likely incorporates by reference many of the service's terms of

use, including with respect to payment, which is made to the

service rather than the driver. See, e.g., Uber, U.S. Terms of Use

§ 5 (effec. Mar. 23, 2017) (‘You understand that use of the Ser.

your use of the Services), https uber.com/legal/terms/us.

II. THE RULE APPLIED BELOW INVITES

ABUSIVE ASSET-FORFEITURE PRACTICES

In recent years, NMA and its members have become

increasing concerned that civil asset forfeiture is not

being used fairly or in a manner consistent with

constitutional principles. Because the rule applied

below creates a bright-line rule that unauthorized

drivers of borrowed rental cars lack Fourth Amend-

ment rights to challenge searches of those vehicles

after a lawful traffic stop, it “invite[s] police officers

to stop” rental cars “regardless of probable cause or

reasonable suspicion of anything illegal.” Brendlin v.

California, 551 U.S. 249, 263 (2007). “The fact that

evidence uncovered as a result of an arbitrary traffic

stop would still be admissible . . . would be a powerful

incentive to run . ‘roving patrols.’” Id.

Those incentives are magnified by current civil

asset forfeiture policies, which generally permit

law enforcement to share in the proceeds of assets

seized. By creating a category of motorists that law-

enforcement officers can identify as subject to lesser

Fourth Amendment protection, the rule applied below

encourages officers to conduct highway interdictions

designed to seize assets.

A. Law-Enforcement Officers in Jurisdictions

Subject to the Rule Applied Below Are

Especially Likely To Detain Rental Cars

The facts of this case illustrate that law-

enforcement officers in jurisdictions governed by

the rule applied below may see the fact that a vehicle

is a rental car as a reason to pull it over.

The arresting officer testified that he had identified

petitioner's vehicle as a rental car. JA62-63 (‘I

observed a gray rental vehicle pass my location.”).

After pulling petitioner over — for driving in the left

lane without passing!“ — and requesting his identi-

fication, the officer asked whether the vehicle was

petitioner's. JA37. When petitioner replied that it

was a rental car, the officer asked to see the rental

agreement. Id. After running a criminal-history

check, the officer reviewed the rental agreement to

determine whether petitioner was named on it (which

he was not). JA38.

After asking petitioner to exit the vehicle, the officer

apparently sought to use the fact that he was not

named in the rental agreement to convince petitioner

to consent to a search of the car. JA48 (“I may have

actually explained to him that | didn’t need his

consent because he’s an unauthorized driver of the

vehicle.“). When petitioner declined to consent,

the officer proceeded to search both the passenger

compartment and the trunk of the automobile. JA39-

40, 162. The officer testified that at that point he

understood that he was authorized to conduct a search

because the rental agreement “says no other driver

permitted and it was a current contract.” JA48.

Those actions were not accidental: rather, they

reflected precisely the type of procedure that the Third

Circuit’s rule encourages. See JA45.

B. Civil Asset Forfeiture Gives Law Enforce-

ment Financial Incentives To Stop and To

Search Vehicles

Civil asset forfeiture is a common and growing

practice used frequently against motorists. State and

10 See 75 Pa. Cons. Stat. f 3313(d)(1)(i)-(ii).

'6 See, e.g., Michael Sallah, Robert O Harrow Jr., Steven Rich

& Gabe Silverman, Stop and Seize, Wash. Post (Sept. 6, 2014)

(describing use of civil forfeiture against motorists), http://www.

washingtonpost.com/sf/investigative/20 | 4/09/06/stop-and-seize/

federal civil forfeiture laws permit law-enforcement

officers to seize property without prior judicial process

if there is probable cause to believe that the property

is connected to a crime. See, e.g., 18 U.S.C. § 981(b)

(authorizing seizure without a warrant of property

subject to forfeiture when the seizure is made pursu-

ant to a lawful arrest or search).

In most cases, state or federal law allows law-

enforcement agencies to share in the proceeds of asset

forfeiture and to use that revenue for unrelated

purposes, providing an incentive for increasing use of

the practice. See Policing for Profit, supra note 16,

at 14; see also Leonard v. Texas, 137 S. Ct. 847, 848

(2017) (Thomas, J., statement respecting the denial

of certiorari) (“[B]jecause the law enforcement entity

responsible for seizing the property often keeps it,

these entities have strong incentives to pursue forfei-

ture.”). Those incentives have fueled the practice's

growth to such an extent that, in 2014, assets seized

by federal law-enforcement agencies were more

valuable than assets stolen in reported burglaries.'’

A recent investigative report found that, from

September 2001 to September 2014, law-enforcement

officials conducted 61,998 warrantless cash seizures

through the Department of Justice’s Equitable

?utm_term=.681c254afal6; Dick M. Carpenter II, Lisa Knepper,

Angela C. Erickson & Jennifer McDonald, Inst. for Justice,

Policing for Profit: The Abuse of Civil Asset Forfeiture (2d ed.

Nov. 2015) (‘Policing for Profit’) (describing the practice gener-

ally), http://Aj.org/wp-content/uploads/20 1 5/1 1/policing-for-profit-

2nd-edition. pdf.

7 See Christopher Ingraham, Wonkblog, Law Enforcement

Took More Stuff From People Than Burglars Did Last Year,

Wash. Post (Nov. 23, 2015), https://www.washingtonpost.com/

news/wonk/wp/20 15/1 1/23/cops-took-more-stuff-from-people-than-

burglars-did-last-year/.

Sharing Program, which authorizes sharing federal

forfeiture proceeds with cooperating state and local

law-enforcement agencies. See Stop and Seize, supra

note 16. Of the $2.5 billion in proceeds from those

seizures, $1.7 billion was shared with state and local

law-enforcement agencies, with much of it being used

to pay salaries or other operating expenses. See id.

In many cases, police discover the assets to be seized

during a search of a vehicle; accordingly, a significant

portion of the “egregious and well-chronicled abuses”

caused by this system have fallen on motorists.

Leonard, 137 S. Ct. at 848 (Thomas, J., statement

respecting the denial of certiorari) (collecting such

examples); see also Stop and Seize, supra note 16

(noting “the role of the federal government and the

private police trainers in encouraging officers to target

cash on the nation’s highways’).

For example, it has been reported that police

in Tenaha, Texas, employ a practice of stopping

out-of-town drivers for minor infractions, seizing the

property in their automobiles, and exchanging their

freedom for a waiver of any right to challenge the

forfeiture.'* One motorist allegedly was stopped after

driving in the left lane for more than half a mile

without passing (the same traffic infraction for which

petitioner was stopped, JA36-37, 65) before he and a

companion were threatened with charges of money

laundering and child endangerment if they did not

agree to forfeit cash that was found during a search of

his car. See Stillman, supra note 18.

'8 See Sarah Stillman, Taken, The New Yorker (Aug. 12 & 19,

2013), https://www.newyorker.com/magazine/20 1 3/08/12/taken;

Leonard, 137 8. Ct. at 848 (Thomas, J., statement respecting the

denial of certiorari) (noting this example).

One investigation into civil asset forfeiture practices

found a common pattern that is echoed in the present

case: “In case after case, highway interdictors

appeared to follow a similar script.” Stop and Seize,

supra note 16. “Police set up what amounted to rolling

checkpoints on busy highways and pulled over motor-

ists for minor violations, such as following too closely

or improper signaling.” Id.; cf. JA36-37 (explaining

that petitioner was pulled over for driving in the left

lane). “They quickly issued warnings or tickets.” Stop

and Seize, supra note 16; cf. JA45 (. And issue him

a traffic citation for driving in the left lane? A. A

warning.”). “They studied drivers for signs of nervous-

ness, including pulsing carotid arteries, clenched jaws

and perspiration.” Stop and Seize, supra note 16;

cf. JA68 (“The first thing I observed was extreme

nervousness from the operator.”). “They also looked

for supposed ‘indicators’ of criminal activity, which

can include such things as trash on the floor of a

vehicle, abundant energy drinks or air fresheners

hanging from rearview mirrors.” Stop and Seize,

supra note 16; cf. JA70 (noting that Byrd “picked up a

sweatshirt that was on the passenger floor”).

The burdens of such routinized use of civil asset

forfeiture fall disproportionately on the “poor and

other groups least able to defend their interests in

forfeiture proceedings.” Leonard, 137 S. Ct. at 848

(Thomas, J., statement respecting the denial of certio-

rari). And, because those same people are more likely

to use cash over other forms of payment, they are more

likely to carry assets worth seizing. See id. The poor

are also least able to afford the cost and logistical

burdens associated with challenging a seizure, which

can be significant. See id.“

Abuse of civil asset forfeiture has led to criticism

even from the law-enforcement agencies whose

budgets rely on it. Earlier this year, the Department

of Justice’s Office of the Inspector General issued

a report faulting the Department's use of civil asset

forfeiture for lack of oversight and questionable inves-

tigative effectiveness.“” That report found that asset

seizures resulting from “interdiction operations” — i. e.,

traffic stops and searches at mass transportation hubs

or parcel distribution centers — were particularly

unlikely to be related to new or ongoing investigations

or lead to arrests and prosecutions. OIG Report at iii.

Despite the concerns expressed in the OIG Report,

in July the Department of Justice issued a new

order that superseded prior restrictions on federal

“adoption” of seizures by state and local law enforce-

ment and authorized expanded use of civil asset

forfeiture. See Office of the Att'y Gen., Order No.

3946-2017 (July 19, 2017), https://www.justice.gov/

file/9826 1 1/download.

Under current law in Illinois, in order to challenge the

seizure of assets, property owners must pay a bond equal to

the greater of $100 or 10% of the property's value, See 726 Ill.

Comp. Stat. 150/6(C)(2); Policing for Profit, supra note 16, at 12.

If unsuccessful, property owners not only lose the value of the

bond, but also must pay the full cost of the forfeiture proceeding.

See 725 Ill. Comp. Stat. 150/6(C)(2); Policing for Profit, supra

note 16, at 12. And, even if they win, they nevertheless must pay

10% of the cost of the bond. See 725 Ill. Comp. Stat. 150/6(C)(3);

Policing for Profit, supra note 16, at 12.

20 See U.S. Dep't of Justice, Office of the Inspector General,

Evaluation & Inspections Div. 17-02, Review of the Department's

Oversight of Cash Seizure and Forfeiture Activities (Mar. 2017)

(OIG Report”), https://oig. justice.gov/reporta/2017/e 1702 pdf

C. The Rule Applied Below Magnifies Incen-

tives Created by Civil Asset Forfeiture

The incentives created by the rule applied below

make it uniquely prone to abuse. Unlike limitations

on the applicability of the Fourth Amendment that

rely on an officer's subjective good faith, the rule

below turns solely on contractual terms that law-

enforcement officers can review before determining

whether to conduct an unreasonable search.

The arresting officer in this case was able to identify

petitioner's vehicle as a rental car, even as it drove

past him at highway speed. JA63. And, after he

pulled the car over, the rental agreement made it easy

for the officer to determine that petitioner was not

an authorized driver. JA68 (Ut says no other driver

permitted and it was a current contract.”).

Although no forfeiture is at issue, this case never-

theless illustrates how a combination of (1) standard

rental agreements with strict authorized-driver

policies; (2) a rule that restricts the Fourth Amend-

ment rights of unauthorized drivers of rental cars; and

(3) financial incentives for law-enforcement agencies

to maximize the value of assets they seize and forfeit

creates dangerous incentive for law enforcement to

detect, stop, and search rental cars once they have

determined that the driver is unauthorized.

CONCLUSION

The judgment of the court of appeals should

be reversed.

November 20, 2017

Respectfully submitted,