CA6 on remand of Byrd remands to trial court for more factfinding on three issues

On remand from Byrd v. United States, 138 S.Ct. 1518 (2018), CA6 sends the case back to the district court to resolve the three issues that still need factual development. Was there probable cause, does the strawman rental actually deprive him of standing, and what about consent? United States v. Byrd, 2018 U.S. App. LEXIS 32933 (3d Cir. Nov. 21, 2018):

As to the first issue, although the District Court held that the officers had reasonable suspicion that Byrd was engaged in criminal activity and, thus, could expand the scope of their inquiry beyond Byrd’s traffic violation, see Byrd, 2015 U.S. Dist. LEXIS 113281, 2015 WL 5038455, at *3-*4, it did not address whether the officers had probable cause to then search Byrd’s car—and, in particular, whether any probable cause that may have existed to search the passenger compartment of the car based on Byrd’s admission that he had a “blunt” in the passenger area extended to authorize the officers to search the trunk. At least three Courts of Appeals have indicated that if police have probable cause to believe that marijuana consistent with personal use is located in the passenger part of the vehicle, they also have probable cause to search the trunk. See United States v. Winters, 221 F.3d 1039, 1041 (8th Cir. 2000) (affirming the lower court’s conclusion that “once the trooper smelled marijuana, he had probable cause to search the entire vehicle, including the trunk and all containers therein, for controlled substances”); United States v. Turner, 119 F.3d 18, 20, 326 U.S. App. D.C. 219 (D.C. Cir. 1997) (holding that evidence of personal use amounts of marijuana “was sufficient to establish a ‘fair probability’ that Turner might have hidden additional drugs not necessary for his current consumption in areas out of plain sight, including the trunk of the car”); United States v. McSween, 53 F.3d 684, 686-87 (5th Cir. 1995) (holding that “the smell of marihuana [in the passenger area] alone may be ground enough for a finding of probable cause” to search other areas of the vehicle). However, we have not yet weighed in on that question and, in view of Kennedy, the District Court had no need to reach it or make the necessary predicate factual findings, which it may do on remand.

As to the second issue, the Supreme Court acknowledged the Government’s argument that Byrd lacked a reasonable expectation of privacy in the car because he gained possession through a fraudulent “straw renter” scheme, but it left the validity of that objection to Byrd’s Fourth Amendment standing for remand. See Byrd, 138 S. Ct. at 1529-30. We have not yet opined on the validity of this standing objection, and, in view of Kennedy, the District Court did not have need to reach the legal question or to engage in fact finding concerning the existence of a fraud scheme or Byrd’s status as a “straw renter.” Without a sufficient record to ascertain whether Byrd “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,” id. at 1530, any opinion we might offer on a “straw renter” exception to Fourth Amendment standing would be merely advisory; remand is thus necessary for this issue as well.
The third possible basis for affirming—that is, consent—also would require additional fact finding. In the “Background” section of its opinion, the District Court stated that “[e]ventually, Byrd consented to the search,” Byrd, 2015 U.S. Dist. LEXIS 113281, 2015 WL 5038455, at *2, and depending on the circumstances and scope of such consent, the officers’ search may indeed have been authorized. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (“It is … well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.”). However, the District Court did not make explicit findings as to when in the course of the encounter Byrd consented, whether his consent was voluntary, or the scope of that consent. See United States v. Price, 558 F.3d 270, 277-78 (3d Cir. 2009) (explaining that consent must be “freely and voluntarily given” to constitute an exception to the warrant requirement) (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968)); United States v. Kim, 27 F.3d 947, 956 (3d Cir. 1994) (“When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization.”) (quoting Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980)).