Paul Manafort Paul Manafort. Photo: Diego M. Radzinschi/ALM

It hasn't taken long for a U.S. Supreme Court decision this term on privacy rights to emerge in perhaps an unlikely spot: the special counsel's prosecution of former Trump campaign chairman Paul Manafort.

On Monday, a week after the Supreme Court unanimously ruled that a driver who is not listed on a rental car agreement still has a right to privacy when pulled over by police, Manafort's defense team highlighted the 9-0 decision in their bid to prevent prosecutors from using evidence seized from a storage unit in Alexandria, Virginia.

Manafort's lawyers have argued that the FBI's collection of business records was unlawful because, a day before conducting a court-approved search, the government had accessed the storage unit with the help of a former employee of Manafort's political consulting firm who had a key. The former employee—identified in court filings as Alexander Trusko—was not in a position to consent to the initial survey of the storage unit in May 2017, Manafort's lawyers contend.

Special counsel prosecutors have defended the legality of the first visit and subsequent search, noting that Trusko had a key to the storage unit and signed the lease for it. A copy of the lease identifies Trusko as the storage unit's “occupant” and Manafort as the “occupant's authorized access [person].”

In court papers filed Monday in Alexandria federal district court, defense lawyers cited the Supreme Court's May 14 decision in Byrd v. United States to argue that Manafort had a right to privacy with respect to the storage unit even though Trusko's name appeared on the lease. In the Byrd ruling, the justices concluded that a driver in lawful possession or control of a rental car—albeit not on the agreement—still retains a right to challenge the search of the vehicle.

“The special counsel relies heavily on the fact that the third party's name was on the lease agreement for the storage unit,” Manafort's defense lawyers Kevin Downing and Thomas Zehnle wrote in a footnote (below). “As the Supreme Court very recently explained, in the context of rental cars, the 'mere fact' that an individual does not appear as a renter on a rental agreement does not mean that individual may not still have a reasonable expectation of privacy when operating the vehicle that is the subject of the rental agreement.”

Manafort is facing bank and tax fraud charges in the U.S. District Court for the Eastern District of Virginia, where he is scheduled to stand trial in July. He also faces charges in Washington's federal trial court. Manafort was indicted in the District of Columbia on charges including money laundering and failing to register his lobbying work for the Russia-backed government of Ukraine.

The Supreme Court decision reappeared Wednesday during a hearing before U.S. District Judge Amy Berman Jackson of the District of Columbia. Prosecutors presented the Byrd decision as benefiting the government's argument that the visit and search of the storage unit were lawful.

Scott Meisler, an appellate attorney from the Justice Department's criminal section serving under Special Counsel Robert Mueller III, said the Byrd decision “underscores property law concepts” and treats as a “significant factor” the occupants named on a lease.

In addition to having a key and his name on the lease, Trusko had access to the storage facility—an important consideration, Meisler argued, in the FBI's evaluation of whether he could consent to the initial, cursory search of the unit.

Without identifying Manafort's former employee by name, Zehnle said the fact that Trusko had a key to the storage unit and his name on the lease was “not dispositive.” Zehnle added that Trusko used the storage unit only at Manafort's direction.

“There's no mutual use here, your honor,” Zehnle said.

Jackson questioned the assertion that Trusko lacked the authority to grant the FBI permission to to access the storage locker. “Where's the evidence that makes it unreasonable?” Jackson asked Zehnle. “Where's the evidence that Mr. Manafort was exerting control of this space?”

Zehnle pointed out that an FBI agent's affidavit said Trusko could only access the storage “at the direction” of Manafort. He added that the FBI agent should have questioned whether Manafort's permission was necessary.

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