The US Supreme Court recently agreed to hear argument in Collins v. Virginia. This case may raise the question whether the automobile exception to the Fourth Amendment warrant requirement extends to the curtilage of a person’s home (including a car parked in the driveway). In this column, I will consider whether the case before the Court actually raises this question at all and how we might best think about the question posed.
Each of two police officers on two separate occasions witnessed Collins committing a traffic infraction while driving his motorcycle, after which each officer attempted to stop Collins. Both officers were unsuccessful because instead of pulling over, Collins accelerated and drove away. On the second occasion, the officer in question managed to take a photograph of the motorcycle’s license plate. The information gleaned from the plate ultimately led the police to a man who had sold the motorcycle to Collins. This man admitted that the vehicle was stolen and said that he had told Collins as much at the time of sale.
One of the officers, after learning of Collins’s identity and figuring out, with the help of Facebook and an informant, where he might find Collins, went to the home associated with his suspect. There, on the driveway, the officer saw a white tarpaulin covering what looked like a motorcycle. From the parts of the motorcycle that were visible, the officer determined that it was likely the same motorcycle that was involved in the earlier evasions of police and that was stolen. In other words, the officer had probable cause to believe that the tarp concealed evidence of crime. But did he need more? Was a warrant required?
The officer did not believe he needed a warrant. He walked up to the motorcycle, removed the tarp, and then saw enough (including the vehicle identification number, the VIN) to make out probable cause to seize the motorcycle, which he then seized. Collins was subsequently prosecuted and convicted of receipt of stolen property. The prosecutor successfully opposed Collins’s Fourth Amendment motion to suppress the evidence linking Collins to the stolen motorcycle. Collins brought an appeal arguing that the denial of his motion constituted reversible error.
The state trial court found that the police officer’s removal of the tarp was lawful under the Fourth Amendment. The court of appeals affirmed, finding that exigent circumstances justified the police officer’s failure to obtain a search warrant. On this reasoning, the suspect, Collins, could have come out of the house and driven the motorcycle away if the officer had taken the time to seek a warrant before conducting his search. Therefore, probable cause was enough. The highest court of Virginia came to the same result but for different reasons.
The Virginia Supreme Court held that the officer’s search was legal because it fell within the scope of the automobile exception to the Fourth Amendment warrant requirement. This exception provides that police do not need a warrant to search an automobile. The exception rests on two main rationales: first, automobile searches often occur under exigent circumstances due to the mobility of a vehicle; and second, people have a lesser expectation of privacy in an automobile, because cars are so extensively regulated. The doctrine is not tightly connected to the rationales that gave rise to it, however, as it extends to cases on which those rationales have no obvious bearing.
Still, an officer must be seeking to search a vehicle in order for the automobile exception to apply. And perhaps, the automobile might have to be located in a public area rather than on private property. In a case called Coolidge v. New Hampshire, the Court suggested that the automobile exception would not apply to a car sitting in a suspect’s driveway and in no immediate danger of being moved.
One could understand a “driveway” exception to the automobile exception as a response to the lesser likelihood that the car would be driven away from the driver’s residence, coupled with the heightened expectation of privacy that people enjoy in their homes and the immediately surrounding area—the curtilage. But over the years, some have doubted the continuing vitality of this carve-out from the automobile exception. It would therefore be useful, for police and litigants alike, to know whether the Court stands by this exception to the exception or whether the automobile exception covers even those cars located in a driveway.
Odd Features of this Case
Yet a number of factors make this case an imperfect vehicle (pun intended) for clearing up the long-running confusion over the existence of the exception to the exception.
The first odd thing about this case is the fact that we are dealing with a motorcycle rather than a car. By contrast to a car, a motorcycle does not have many private areas that could be searched. In fact, in this case, no one has suggested that the police officer looked into any private areas concealed within the motorcycle itself. Instead, he looked at the motorcycle, first, to verify that it was the orange and black Suzuki that had escaped from him after he tried to pull over its driver, and second, to see the VIN. If we assume that he had lawfully gotten to where he was (i.e., on the driveway) and that he had lawfully removed the tarp from the motorcycle at the time he looked at the motorcycle, then it would follow that there was nothing inappropriate about his looking at the motorcycle. Importantly, this is not because of the automobile exception but because looking at something is not itself a search—an invasion of a reasonable expectation of privacy—for Fourth Amendment purposes. A search of a car makes conceptual sense; by contrast, a search of a motorcycle is conceptually incoherent.
Another odd feature of the case is the presence of the tarp over the motorcycle. Cars do not typically have a tarp over them, so the search of a car more straightforwardly implicates the automobile exception to the warrant requirement, if police search the vehicle based on probable cause. In this case, however, in order to see the motorcycle fully and to see the ultimately incriminating aspects of it, such as its appearance and the VIN, the officer in question had to remove the tarp from on top of the motorcycle. Nothing in the automobile exception doctrine tells us how to think about the removal of a tarp that covers an automobile. It therefore seems like a factual departure from the garden-variety automobile exception case.
Finally, it is true that the officer entered onto the private property of the defendant—the curtilage, in the language of Fourth Amendment doctrine. Yet this area was not, so far as the facts state, surrounded by fencing or “no trespass” signs or anything else that would let people know that they could not lawfully walk onto it. Though the curtilage, unlike the “open field,” is a protected area for Fourth Amendment purposes, people (including police officers) can walk onto that area in the absence of fencing or other efforts to discourage guests. This is how a visitor or solicitor might walk up to the resident’s door and knock on it to talk to him or her or offer information or political pamphlets. In Florida v. Jardines, the Court discussed how “a police officer not armed with a warrant may approach a home and knock, precisely because that is no more than any private citizen might do.” (internal quotation marks omitted). The same could be said of an officer walking onto a driveway and approaching a vehicle (after which the automobile exception could presumably take care of the rest, if an automobile were all that was there).
How to Resolve the Case for the Appellant
The dissenting opinion in the Virginia Supreme Court’s decision had a better approach to the Fourth Amendment problem than the majority did. While the majority applied the automobile exception to find the officer’s conduct lawful, the dissent took note of the fact that the automobile exception did not properly apply to the situation at hand. Most significantly of the various facts I outlined above, the tarp that covered the motorcycle took the case out of the ordinary automobile exception rubric. Because there is no exception that covers a tarp that conceals a vehicle, the officer required a warrant, according to the dissent, and thus violated the Fourth Amendment by failing to obtain one before exposing the motorcycle through removal of the tarp. The majority was wrong to characterize what happened as a search “of” the motorcycle (something that might have been covered by the automobile exception), and the dissent was right to determine that it was actually a search “for” the vehicle, something that is not covered by the automobile exception.
Evaluating the Government’s Case and the Automobile Exception Question
On these facts, however, one could find that the rationales behind the automobile exception apply sufficiently to have justified the officer’s behavior. Start with the main reason for the exception: the ready mobility of the car. At least in theory (though the exception has expanded beyond the theory), a suspect could drive away on the motorcycle before the officer has had the opportunity to obtain and then return with a warrant. Though motorcycles are not cars (a fact that seems to concern no one in the state’s high court), they are just as mobile and therefore just as subject to removal while police seek a warrant. By the same logic, the presence of a tarp over the vehicle does not really pose a serious obstacle to the vehicle’s vanishing from the scene. Because the officer’s goal in lifting the tarp is to examine the motorcycle hidden underneath it, the driving away of the vehicle, even if the tarp is left in the driveway, would certainly frustrate this goal.
The second reason for the automobile exception is that cars are less private than, say, houses, in part because they are subject to so much regulation. People therefore cannot expect as much privacy in a vehicle as they can expect in their homes. This is certainly true of motorcycles as well. Motorcycles are subject to extensive regulation, and no one expects to have as much privacy on a motorcycle as they do in a house. Yet the tarp does alter this logic a bit. Placing a tarp over one’s motorcycle (or car) does not reduce the degree of regulation applicable to the vehicle, but it does conceal much of it from view. (And if the motorcycle is on private property, then concealing it may be lawful). That concealment might entitle the owner to privacy from official searching absent a warrant.
By analogy, consider a private person who is not a police officer walking down the road. Such a person could walk onto the driveway (absent fencing) and walk past the vehicle. If the vehicle were visible, the private person could look at it and learn whatever an officer might learn from looking at it. But a private person would not, without violating the law, be able to grab hold of the tarp and remove it from the motorcycle. In the words of Jardines, no implied license to enter the driveway would cover tarp removal. The tarp is private property and off limits to a passerby. By the same logic, a police officer who removes the tarp is conducting a search—an invasion of a reasonable expectation of privacy—and not one that is covered by the automobile exception. The officer therefore, on privacy grounds, should perhaps be required to obtain a warrant to remove the tarp.
We might want to ask the question that likely motivated the Court to take this case, even if this question is not squarely presented by the case. Is the presence of a car in a driveway a reason not to apply the automobile exception? The answer to this question seems plainly to be no. It is just as easy to remove a vehicle (by driving it) from the driveway as it would be if the vehicle were parked on the street. And the extensive regulation of vehicles, for the most part, extends to vehicles parked in the driveway. Also, absent a tarp, walking up to a vehicle in a driveway would be no less permissible than walking up to a vehicle on the street. Absent fencing or other impediments, then, it would make sense for the Supreme Court to say that the automobile exception applies to a person’s driveway, however unrelated this question is to the facts of the case before the Court.