By Benjamin A. Kling, Associate Editor
Introduction
On a subreddit entitled r/IllegalLifeProTips, individuals post tips for other users that are meant to benefit the reader’s life, albeit in ways that may not be legal.[1] One individual posted a “pro tip” which was specifically tailored to individuals who may engage in illicit drug dealing. The tip stated, “[i]f you sell drugs, use Uber instead of driving. If you get pulled over kick your drugs under your Uber drivers [sic] seat … You can both claim it’s probably from someone that rode in his car earlier.”[2]
This raises an important legal issue in the emerging technology of ride sharing apps like Uber and Lyft. The issue is whether a passenger can be held criminally liable for contraband belonging to his or her driver and vice versa. Considering this new technology and the tangential relationship created between the passenger and driver, an exception to existing Fourth Amendment jurisprudence must be developed.
Ridesharing Services
The two predominant ridesharing services are Uber and Lyft. Ridesharing is defined as, “of or relating to the sharing of rides or transportation, especially among commuters.”[3] Defined by Lyft’s website, ridesharing is a system whereby an app matches a passenger with a nearby driver, who will pick up and take the passenger where he has requested to go.[4]
Uber and Lyft are technologies akin to taxis.[5] In fact, the term “taxi alternative services” has been used in articles and websites describing the services provided by Lyft and Uber. “These two taxi alternative services may seem interchangeable, but there are differences between the two largest transportation network services in the United States.”[6] Both Uber and Lyft will be described very briefly.
Essentially, Uber is an app that utilizes existing technologies (cell phones and automobiles) “in order to connect riders to drivers at the touch of a button.”[7] It is a service which “utilizes empty seats in passenger vehicles, and the Uber platform makes it possible for you to access a safe, more reliable, convenient and affordable way to get from A to B.”[8] All the passenger has to do is download the app, create a profile, and put in a destination. Barring instances when a passenger and driver know each other, a small biography picture on the driver’s profile is the only time before the ride that the passenger will see the driver.[9]
Lyft is similar to Uber. It is a ridesharing app that offers an innovative alternative to taxis and long-established private transportation services.[10] However, Uber and Lyft differ in the services they provide. While both are ridesharing apps, Uber offers food delivery and other services of that nature.[11] Apart from Uber’s additional services, the two companies are essentially the same – passenger opens the app, orders a ride from a stranger, driver picks up passenger, and driver takes passenger to the destination.
Fourth Amendment Jurisprudence
Under the Fourth Amendment, individuals are protected from unreasonable searches and seizures.[12] Generally, a warrantless search is per se unreasonable and violates the Fourth Amendment.[13] “[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”[14] Such exceptions include a search incident to lawful arrest, the automobile exception, plain view, and consent.[15]
Due to ridesharing’s very nature, it is important to have an understanding of what the automobile exception covers. If the police have probable cause to search a vehicle, then the police have the right to search the entire vehicle and all containers therein that might contain the object of their search.[16] Whether in a container or under a seat, if it is reasonably likely to uncover the evidence sought, police can search.
The Court has extended this further to allow the searching of containers in the passenger compartment. Under the automobile exception, the police are allowed to search “any object capable of holding another object…located anywhere within the passenger compartment."[17] This is troubling for passengers who know their driver, let alone someone who’s initial interaction is limited to “Hey, are you _______?” and small talk about the driver’s busy night. Because of these laws and emerging new technologies, questioning the current state of the law is necessary.
Ridesharing and Fourth Amendment
The automobile exception to the general warrant requirement prior to a search is troubling for a number of reasons and ridesharing subjects the passenger to an environment that is wholly out of his control. The passenger has likely never met the driver, never been in the vehicle, and is only in very short-lived interactions with the driver.[18]
Two aspects of the passenger-driver relationship could affect the law controlling searches of automobiles used for ridesharing. First, app-rideshare drivers are considered to be independent contractors.[19] As such, Uber and Lyft do not have the same amount of control over the drivers as an employer would have over an employee. Stated by an Uber spokesperson, “[w]e are focused on improving the quality and security of independent work, while preserving the flexibility drivers and couriers tell us they value.”[20]
Second, passengers have limited knowledge of the driver transporting them in their personal vehicle. Drivers fill out a profile with various kinds of information.[21] What is always on the Driver Profile is the license plate number, name, and a photo.[22] However, other information is available to the passenger should the driver answer a number of questions. This includes, but is not limited to, the number of trips completed by the driver, how long the driver has been driving for the rideshare app, the driver’s rating, and any compliment badges.[23]
Under the Common Enterprise Doctrine of the Fourth Amendment, “when an officer is conducting a lawful search based upon probable cause, a presumption arises that the occupants in a vehicle are in a common enterprise.”[24] Arising out of the case of Wyoming v. Houghton, the Supreme Court’s based its decision on the assumption that passengers and drivers were engaged in a common enterprise.[25] Further, the court was worried that the driver “might be able to hide contraband in a passenger's belongings as readily as in other containers in the car, … perhaps even surreptitiously, without the passenger's knowledge or permission.”[26]
Despite this, it is time to adopt the dissent’s position that the passenger’s property is their property for cases arising out of ridesharing facts.[27] The Houghton majority’s concern that contraband can be concealed in passenger’s containers is not an unfounded fear in most instances.[28] When driving a car, or riding in a car, the passenger typically knows the other person in the vehicle. This comradery would lead to a reasonable assumption that the two, or more, would be engaging in a “common enterprise” to conceal contraband and that allowing an “out” would hinder law enforcement.[29] However, ridesharing participants do not know one another besides brief discussions and a Driver Profile.
On this latter point and the issue of common involvement, it would be wise to provide greater weight to the Houghton dissent – “the State's legitimate interest in effective law enforcement does not outweigh the privacy concerns at issue.”[30] Citing precedent that declined to allow passengers to be searched, the dissent opined “we are not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”[31]
The special circumstances of ridesharing warrant a second look at exceptions to the Common Enterprise Doctrine. While sound policy for a typical passenger-driver scenario, the special interests and facts of ridesharing relationships warrant an exception to this doctrine. A passenger should not lose Fourth Amendment protections because they got into a car without knowing the person or communicating with the person beforehand.
Conclusion
The common enterprise doctrine and the automobile exception were adopted when technology was not as advanced as it is now. As technology advanced, so too did the quantity and variety of personal services offered through digital platforms. The nature of these personal services signals the drastic need to rethink existing law.
The fleeting relationships between passengers and drivers, the asymmetrical information shared between the two, and the driver’s independent contractor designation combine to provide the right technology for changing the law. Passengers in ridesharing services should be afforded a protection that they have not previously had. An exception needs to be drawn in Fourth Amendment jurisprudence that allows for the passenger and his containers to be protected from search under the automobile exception of the Fourth Amendment.
Footnotes
[1] Illegal Life Pro Tips, Reddit, https://www.reddit.com/r/IllegalLifeProTips/ (last visited Mar. 31, 2020).
[2] (u/PM_YOUR_ADDICTION), Reddit (Dec. 29, 2019, 11:22 PM). https://www.reddit.com/r/IllegalLifeProTips/comments/e8lnbw/ilpt_if_you_sell_drugs_use_uber_instead_of/.
[3] Ridesharing, Dictionary.com, https://www.dictionary.com/browse/ridesharing (last visited Mar. 31, 2020).
[4] How Lyft Works: 6 Things to Know Before Your First Ride, Lyft (Jun. 9, 2019), https://blog.lyft.com/posts/how-does-lyft-work.
[5] Levi Davis, Lyft vs. Uber: What's the Difference?, Investopedia (last updated Jun. 25, 2019), https://www.investopedia.com/articles/personal-finance/010715/key-differences-between-uber-and-lyft.asp.
[6] Id.
[7] Tenielle, The Beginner’s Guide to Uber, Uber (last updated Jan. 30, 2015), https://www.uber.com/en-AU/newsroom/the-beginners-guide-to-uber-2.
[8] Id.
[9] Uber, https://help.uber.com/driving-and-delivering/article/driver-profiles?nodeId=3a4334ea-1272-4450-9a98-426a009190a0 (last visited Mar. 31, 2020).
[10] Davis, supra note vii.
[11] These services are not at issue in this blog and will not be discussed. The purpose of this blog is to examine the relationship between Fourth Amendment searches and passengers, or drivers, involved in ridesharing.
[12] U.S. Const. amend. IV (Westlaw 2020).
[13] Katz v. U.S., 389 U.S. 347, 357 (1967).
[14] Id.
[15] See generally Chimel v. California, 395 U.S. 752 (1969); California v. Carney, 471 U.S. 386 (1985); Arizona v. Hicks, 480 U.S. 321(1987); and Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
[16] United States v. Ross, 456 U.S. 798 (1982).
[17] New York v. Belton, 453 U.S. 454, 460 n.4 (1981).
[18] While it is true that this also describes taxis, a service that has been around for a while, the new age of technology brings up questions regarding these specific services. Uber and Lyft are both relatively new developments that have usurped the throne that taxis once sat on. See Anne Sraders, Uber vs. Taxi: What's the Difference?, TheStreet (Feb 27, 2019 11:15 AM), thestreet.com/technology/uber-vs-taxi-14872678 (discussing the usage of taxis versus Uber, Lyft, and other ridesharing services).
[19] See Clark v. City of Seattle, No. C17-0382RSL, 2017 WL 3641908 (W.D. Wash. 2017).
[20] Andrew J. Hawkins, Uber drivers are freelancers, not employees, federal labor lawyer says: Another sign that the gig economy is here to stay, The Verge (May 14, 2019, 2:21 PM), https://www.theverge.com/2019/5/14/18623467/uber-driver-freelancers-employees-federal-labor-lawyer-contractor.
[21] See supra Part II.
[22] Uber Help, https://help.uber.com/driving-and-delivering/article/driver-profiles?nodeId=3a4334ea-1272-4450-9a98-426a009190a0 (last visited Mar. 31, 2020).
[23] Id.
[24] Genesis Martinez, Comment, The Constitutional Risks of Ridesharing: Fourth Amendment Protections of Passengers in Uber and Lyft, FIU L. R. (2019).
[25] Wyoming v. Houghton, 526 U.S. 295 (1999).
[26] Id. at 305.
[27] Id. (Stevens, J., dissenting).
[28] Id. at 305.
[29] See Houghton, 526 U.S. 295, 304 (1999).
[30] Houghton, 526 U.S. at 311 (1999) (Stevens, J., dissenting).
[31] Id. citing U.S. v. De Ri, 332 U.S. 581 (1948).