Does the Automobile Exception to the Warrant Requirement Extend to Private Driveways?

Last week, the U.S. Supreme Court heard argument in Collins v. Virginia. The issue before the Court is whether the automobile exception to the Fourth Amendment warrant requirement extends to vehicles located within a suspect’s curtilage, the privately owned land directly adjacent to the home. In this column, I will examine this issue as well as a larger question that the Supreme Court could, but probably will not, consider: whether there ought to be an automobile exception to the warrant requirement at all.

Facts of This Case

In Collins, the police had probable cause to examine a motorcycle for the vehicle identification number. The driver of the motorcycle had earlier eluded the police in traffic and driven at dangerous speeds. The police found the motorcycle parked on the suspect’s driveway, covered by a tarp. They had probable cause to examine the vehicle but did not have a warrant.

In response to a series of factual and hypothetical questions at argument, the attorney representing Mr. Collins expressed a willingness to accept various propositions. He acknowledged that the police had probable cause to examine the motorcycle. He agreed that if the motorcycle had been parked on the street instead of on the suspect’s driveway, then the police could have searched on the basis of probable cause and without a warrant, notwithstanding the presence of the tarp over the motorcycle. (He indicated as much by saying that the automobile exception would apply despite the presence of the tarp). And he recognized that if police observed cocaine through the window of a house and noticed someone wandering around inside the house who could destroy the drugs while police sought a warrant, exigent circumstances would justify entering the house without a warrant.

Nonetheless, the attorney pressed the point that when, as in this case, police have probable cause to search a vehicle located within the curtilage of a suspect’s home, they must get a warrant before conducting a search. He relied for this contention on Florida v. Jardines. In Jardines, a police officer brought a drug-sniffing dog to the front door of a suspect’s home and had the dog sniff around near the door to inhale the scents of the house, ultimately signaling to his handler that drugs were present inside. The Supreme Court held in Jardines that the officer violated the suspect’s Fourth Amendment rights by performing an unreasonable search. A majority reasoned that the implied license that people (including police) have to walk up a driveway and knock on a person’s front door does not encompass the sniffing that the trained dog carried out at his handler’s request.

A property owner’s open fields carry no reasonable expectation of privacy from police investigative activity, as per Oliver v. United States. Police may accordingly look around open fields without having probable cause, a warrant, or any basis for suspecting wrongdoing.  The curtilage, by contrast, is a place where a person enjoys a heightened expectation of privacy comparable to that enjoyed in the home itself.

Based on the questions posed by the justices, it appears that the Court will use the case to decide the status of the curtilage. Justice Gorsuch in particular seemed to question whether the automobile exception was ever intended to apply close to the home. If the Court wishes to protect the status of the curtilage as an important zone of privacy, it might find that the automobile exception to the warrant requirement stops at the border of the curtilage and does not extend to a vehicle parked on a private driveway. If, on the other hand, a majority views the curtilage as something very distinct from the home, it might decide that the automobile exception applies to the curtilage to the same extent as it does to a car parked on the street. (And if a majority does so, it might then choose to decide whether an indoor garage is more like a home or more like an open driveway).

A Different Way to Approach Collins

Instead of dwelling primarily on the status of the curtilage, the Court could use this case to reconsider the automobile exception altogether. In puzzling over whether to apply the exception in this case, the justices have the opportunity to consider the reasons for permitting warrantless automobile searches.

The Mobility of a Car

One reason the Court has articulated for the automobile exception has to do with the mobility of a car and a suspect’s consequent ability to drive it away while the police are busy seeking a warrant. Automobiles may sometimes create an exigent circumstance that necessitates an immediate search without a warrant. The issue, though, is whether police should be able to search a car without a warrant even when there is no exigency in the particular case.

The government maintains that there was a particularized exigency in this case, a claim that it is prepared to defend on remand if it loses on the automobile exception in the Supreme Court. However, because the Court did not grant review on this question, the argument before the Court was premised on the proposition that there was no particularized exigency attached to the motorcycle parked on Mr. Collins’s driveway. On the question whether vehicles present a categorical exigency because of their mobility, there were exchanges among the justices about how piles of drugs that a police officer might see through the window of a suspect’s house are mobile, just as a car is mobile. Yet an officer in the piles-of-drugs case would ordinarily need to obtain a warrant before entering the home and seizing the drugs. A truth that the justices approached but did not expressly embrace is that just about all evidence, wherever it might be located, could be moved or destroyed during the time it takes for police to procure a search warrant. Yet our precedents generally require police to get a warrant unless they can cite a specific exigent circumstance in the individual case.

If there were no automobile exception, then, courts would apply the same standard of exigent circumstances to warrantless car searches as they currently apply to warrantless house or luggage searches. Though cars are mobile in a way that houses are not, evidence in houses is movable too. And suitcases and other containers in which evidence might be hidden are mobile like cars but still may not be searched without a warrant or a specific exigency.

The Lesser Privacy of a Car

A car’s mobility is not the only ground for placing it within a special exception to the warrant requirement. As we have seen, cars are not even uniquely mobile. A second reason for the exception is the idea that people enjoy a lesser expectation of privacy in an automobile as compared to a home or a suitcase. The argument here is that automobiles are pervasively regulated and people therefore do not get to feel like their cars are completely private places. This argument has implications for the facts of Collins and for the automobile exception more broadly.

For the case before the Court, it is worth observing that a vehicle parked on a driveway is no longer subject to the pervasive regulation surrounding the use of a vehicle on public roads. You can drive a car on your driveway without a license. You can keep a car on your driveway with broken headlights and/or taillights. A car located on a driveway need not have a valid license plate attached. And the list goes on.

In short, a vehicle undergoes a legal transformation when it travels from the street to the private driveway: it stops being subject to the rules that govern motor vehicles. It would therefore make some sense to hold that the automobile exception, premised in part on a reduced privacy interest in cars due to all of the applicable regulations, should cease to apply once the car lands on private property. It then becomes more like a suitcase, to which the warrant requirement applies.

If we look more closely, though, we can see that the reduced privacy argument regarding cars does not work all that well even on the public streets. The ways in which a car is subject to pervasive regulation have nothing to do with the ability to hide personal items in glove compartments and trunks. Yes, drivers must comply with a host of regulations and must subject their vehicles to periodic inspections and other intrusions, but none of this will typically require exposure of the contents of the private zones of a car. These zones would remain private were it not for the allowance that police have to search without a warrant.

Even if the Court thought that people have less of a privacy interest in a car than they do in a suitcase, moreover, it is not obvious that suspending the warrant requirement is a sensible way to reflect that lesser interest. After all, police are bound by the same standard of probable cause whether they are searching a car, a suitcase, or a house. Suspending the warrant requirement means only that it will be a police officer rather than a neutral magistrate who determines whether the evidence meets the standard. If the Court is serious about the application of probable cause to car searches, then the outcome should be the same, with or without a warrant certifying that there is in fact probable cause. And if the Court thinks that police will not properly apply the probable cause standard, then it should not be entrusting them at all with identifying when the evidence meets the standard. Allowing a less scrupulous decision-maker to apply the same standard is an imprecise and frankly troubling way of handling a lesser expectation of privacy.

In Sum

Collins v. Virginia asks the Court to answer questions and draw lines that it has not previously had to answer and draw. How much privacy does a person have in the curtilage attached to her home? Does the automobile exception, which applies to cars on the street, apply to vehicles on a driveway? If so, how far into the garage and/or home does the exception extend? If not, how exactly is the search of a car so different when it happens out in the open on someone’s driveway from when it happens five feet away, on the street?

I have suggested that the Court should reconsider the automobile exception, but I do not expect it to do so. What I expect is that the Court will reaffirm the importance of privacy in the home, a place where even vehicles receive protection from warrantless searches. I expect that the Court will also say something about the curtilage and how it differs from the street. Whether the automobile exception applies to the curtilage or not may turn on Justice Gorsuch’s view. My tea-leaf read of him is that he would want to require a warrant if the car is in a garage adjacent to the home and that he might even want to require one for the driveway as well, depending on how he construes the original understanding of the Fourth Amendment. On Fourth Amendment issues, he may be our new swing justice. And if the automobile exception shrinks (or fails to expand) as a result, then that might be a surprisingly welcome development.