                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-1509
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                 TERRENCE BYRD,
                                        Appellant
                       ____________________________________

                           On Appeal from the District Court
                         for the Middle District of Pennsylvania
                        (M.D. Pa. Crim. No. 1-14-cr-00321-001)
                   Honorable William W. Caldwell, U.S. District Judge
                      ____________________________________

                On Remand from the Supreme Court of the United States
                                  on June 15, 2018
                Submitted on Remand Under Third Circuit L.A.R. 34.1(a)
                                  on June 18, 2018

               Before: FISHER1, KRAUSE and MELLOY,* Circuit Judges

                           (Opinion filed: November 21, 2018)
                                      ___________

                                        OPINION**

1
  Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit,
assumed senior status on February 1, 2017.
       *
       Honorable Michael J. Melloy, Senior Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
                                       ___________
KRAUSE, Circuit Judge.

       This matter comes to us on remand from the United States Supreme Court. In our

original decision in this case, we affirmed Terrence Byrd’s convictions for possessing

heroin with intent to distribute and possessing body armor as a prohibited person. United

States v. Byrd, 679 F. App’x 146, 147 (3d Cir. 2017). In so doing, we rejected his

argument that the evidence against him should have been excluded as the fruit of an

unlawful search on the ground that Byrd did not have a reasonable expectation of privacy

in the rental car because he was not listed on the rental agreement and thus lacked

standing to contest the search under controlling circuit precedent at the time. Id. at 150

(citing United States v. Kennedy, 638 F.3d 159, 167–68 (3d Cir. 2011)). However, the

Supreme Court then granted certiorari and took the occasion to resolve a circuit split on

this issue. The Court ultimately overturned our precedent, vacating and remanding this

case with instructions for us to either remand to the District Court or to address other

possible bases for affirming, such as the existence of probable cause or Byrd’s lack of

standing to contest the search on account of his allegedly fraudulent scheme to obtain

possession of the car. See Byrd v. United States, 138 S. Ct. 1518, 1524, 1531 (2018); see

also Byrd, 138 S. Ct. at 1532 (Alito, J., concurring) (indicating that these possible

grounds for affirmance were not exclusive). Having requested and reviewed further




                                              2
briefing from the parties on the effect of the Supreme Court’s decision, we conclude that

further remand to the District Court is appropriate in these circumstances.1

I.     Background

       Our original opinion recounts the factual background in more detail, see Byrd, 679

F. App’x at 147–49, and we set forth here only the facts pertinent to the issues remaining

on remand.




       1
          When this case initially returned to us on remand, we issued a non-precedential
opinion reaffirming the District Court’s decision on the basis of the good faith exception
to the exclusionary rule set forth in Davis v. United States, 564 U.S. 229, 232 (2011). See
United States v. Byrd, No. 16-1509, 2018 WL 3750932, at *2 (3d Cir. Aug. 8, 2018). As
we observed, our precedent in Kennedy was binding precedent at the time of the search of
Byrd’s car, id at *2, and Davis held that “searches conducted in objectively reasonable
reliance on binding appellate precedent are not subject to the exclusionary rule,” 564 U.S.
229, 232 (2011). We have reconsidered that decision in view of a thoughtful and
persuasive Petition for Rehearing filed by the Federal Defenders that argues that this
would constitute an unwarranted extension of Davis. As the Defenders point out, the
question of whether a defendant has Fourth Amendment standing is distinct from the
question of whether the search itself comported with the Fourth Amendment or, as
relevant here, whether a reasonable police officer would understand controlling circuit
precedent to affirmatively authorize the search. Indeed, in Kennedy itself, we observed
that we could affirm either “because Kennedy lacked standing to challenge the search, or
because the officers’ search did not run afoul of the Fourth Amendment.” 638 F.3d at
163 (citing United States v. Mussare, 405 F.3d 161, 168 (3d Cir. 2005)). Likewise, the
Supreme Court here noted that “[w]hether a warrant is required is a separate question
from . . . whether the person claiming a constitutional violation ‘has had his own Fourth
Amendment rights infringed by the search and seizure which he seeks to challenge.’”
Byrd, 138 S. Ct. at 1526 (citation omitted). In short, we are persuaded that while the
officers could reasonably rely on Kennedy to conclude that Byrd did not have Fourth
Amendment standing to object to the search, they could not reasonably rely on Kennedy
to conclude (although, as discussed infra, there may well be other grounds to conclude)
that the search itself was constitutional. Therefore, contemporaneous with the filing of
this opinion, we have granted panel rehearing and vacated our initial opinion on remand.
                                               3
       The evidence against Byrd was discovered after Pennsylvania State Police Trooper

David Long stopped Byrd’s car for a traffic violation in September 2014. Long, who

recognized that the car was a rental based on a barcode in one of the car’s windows,

asked Byrd to produce identification and the rental agreement. After searching for the

documents, Byrd, who was “extremely nervous,” United States v. Byrd, No. 1:14-CR-

321, 2015 WL 5038455, at *1 (M.D. Pa. Aug. 26, 2015), provided an interim New York

driver’s license, which did not include a photo, and the rental agreement, which did not

list Byrd as either the renter or a permitted driver. Now joined by his partner, Trooper

Travis Martin, Long returned to his vehicle to verify Byrd’s information, but the

computer search turned up information for an individual named James Carter. After

further inquiry, the officers determined that “James Carter” was an alias and that Byrd

had an outstanding nonextradition warrant from New Jersey as well as prior charges for

drug, weapon, and assault offenses.

       The officers returned to Byrd’s car and asked Byrd to step out of the vehicle.

After inquiring about the warrant and the alias, the troopers asked Byrd if there was

anything illegal in the car. When Byrd said there was not, the officers asked for his

consent to search the car. Byrd, who still appeared nervous, said he had a “blunt in there”

and offered to retrieve it for them. The officers did not allow Byrd to do so and

continued to seek his consent to search, though they “stated they did not need consent

because he was not listed on the rental agreement.” Byrd, 138 S. Ct. at 1525. Following

Byrd’s direction that the blunt was “right there on the side,” the officers opened the
                                             4
passenger and driver doors to search. At some point in the course of the search, Byrd

also advised Martin that he had recently used cocaine. Martin then proceeded to search

the car’s trunk, where he found a bag containing body armor and 49 bricks of heroin.

       At the time of the search, this Court’s precedent was clear that “the driver of a

rental car whose name is not listed on the rental agreement generally lacks a legitimate

expectation of privacy in the car.” Kennedy, 638 F.3d at 161. The record is also clear that

Byrd, who had enlisted a friend to rent the car on his behalf, was not listed on the rental

agreement himself. Thus, when Byrd moved to suppress the body armor and the drugs

on the ground that the search of the rental car was unlawful, the District Court denied the

motion, explaining that Byrd “was not a party to the rental agreement” and that Kennedy

“clearly instructed that, generally, unauthorized drivers of rental vehicles lack [Fourth

Amendment] standing to challenge a search thereof.” Byrd, 2015 WL 5038455, at *2.

We affirmed, stating that while a “circuit split exist[ed] as to whether the sole occupant of

a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is

not named in the rental agreement,” our Court had “spoken as to this issue” in Kennedy

and, thus, the panel was bound by controlling circuit precedent. Byrd, 679 F. App’x at

150.

       To resolve that split in authority, the Supreme Court granted certiorari and

subsequently vacated our decision, overturning Kennedy and holding that “the mere fact

that a driver in lawful possession or control of a rental car is not listed on the rental

agreement will not defeat his or her otherwise reasonable expectation of privacy.” Byrd,
                                               5
138 S. Ct. at 1531. The Court remanded for us to consider whether further remand was

warranted for the District Court to engage in additional fact finding or whether we could

affirm on other grounds, e.g., that the search was justified on an alternative basis, such as

probable cause, or that Byrd, having allegedly “intentionally use[d] a third party to

procure [the] rental car by a fraudulent scheme for the purpose of committing a crime,”

lacked a reasonable expectation of privacy in the car. Id.

II.    Discussion2

       In its opinion, the Supreme Court specifically noted two legal issues for

consideration on remand that might justify affirmance: first, probable cause, and second,

Byrd’s Fourth Amendment standing in light of his alleged use of a “straw renter” to

fraudulently obtain possession of the rental car. We note that consent, to which the

District Court made passing reference in its original opinion, raises a third possible basis

for affirming the District Court’s original decision. But because disposition on any of

these bases would require additional fact finding, we will remand for the District Court to

conduct appropriate proceedings and to consider these issues in the first instance. We

address each briefly below.3


       2
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. “We review the District Court’s denial of a motion to suppress
for clear error as to the underlying factual findings and exercise plenary review of the
District Court’s application of the law to those facts.” United States v. Wrensford, 866
F.3d 76, 85 n.4 (3d Cir. 2017) (citation and brackets omitted).
       3
         Relying on Steagald v. United States, 451 U.S. 204 (1981), Appellant argues that
the Government has waived its probable cause and “straw renter” arguments because the
Government neglected to make them to us or to the District Court. However, Steagald
                                               6
       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 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.4 See United States v. Winters, 221 F.3d


framed the waiver issue as discretionary, not mandatory. Id. at 209 (“The Government,
however, may lose its right to raise factual issues of this sort before this Court when it has
made contrary assertions in the courts below, when it has acquiesced in contrary findings
by those courts, or when it has failed to raise such questions in a timely fashion during
the litigation.”) (emphasis added). Here, the Government had no need to make either of
these arguments to the District Court or to us on appeal because our precedent in
Kennedy clearly disposed of the case in its favor. We see no reason to encourage parties
to make every possible argument in the unlikely event that the Supreme Court overturns
binding precedent. Moreover, while it is true that “when a party seeks reversal of a
suppression ruling on appeal, any arguments not raised in the district court are waived
absent a showing of good cause,” it is “[o]f course, a different scenario . . . when a party
asks us to affirm a district court’s suppression ruling because we may affirm for any
reason supported by the record.” United States v. Dupree, 617 F.3d 274, 728 & n.2 (3d
Cir. 2010). Given that we are being asked to affirm a suppression ruling and the
Government provided a “colorable explanation” of why it did not raise these arguments
before the District Court, we conclude that it did not waive either argument. United
States v. Rose, 538 F.3d 175, 184 (3d Cir. 2008).
       4
        We note, however, that some Courts of Appeals have required the existence of
corroborating evidence of contraband in the passenger compartment before police are
                                            7
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 (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


authorized to search the trunk. See, e.g., United States v. Parker, 72 F.3d 1444, 1450
(10th Cir. 1995) (“[A]n officer obtains probable cause to search the trunk of a vehicle
once he smells marijuana in the passenger compartment and finds corroborating evidence
of contraband.”). We do not address here whether Byrd’s admission required additional
                                             8
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 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 (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

(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


corroboration.                                  9
scope of the search is limited by the terms of its authorization.”) (quoting Walter v.

United States, 447 U.S. 649, 656 (1980)).

       In summary, although “an appellate court may sometimes resolve the issue on

appeal rather than remand to the district court,” remand is appropriate where, as here,

“the issue to be addressed is not a purely legal question . . . [and] requires the exercise of

discretion or fact finding.” Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151,

159 (3d Cir. 1998); see also United States v. Brown, 631 F.3d 638, 644 (3d Cir. 2011).

As any one of the three grounds discussed would justify the denial of Byrd’s motion to

suppress if supported by a more developed record, we will remand this case to the

District Court for further proceedings consistent with this opinion.




                                              10
