At the end of May, the US Supreme Court decided Collins v. Virginia. The case raised the question whether the automobile exception to the warrant requirement applies to a vehicle parked in a suspect’s driveway. The Court held that if the vehicle is located within the curtilage of the home, then police must have a warrant to approach it, notwithstanding the automobile exception.
In this column, I will focus on the strange status of curtilage in Fourth Amendment law.
From Property to Privacy
Prior to Katz v. United States, the Supreme Court had announced that the Fourth Amendment applied to “constitutionally protected areas” that usually arose from a property relationship between the person and the area to be searched. One thing that did not receive protection was the “open field,” located at a distance from the home. Another was the conversation picked up by a microphone located outside the home where the words were uttered. In Olmstead v. United States, the Court basically held that police could conduct electronic surveillance without probable cause or a warrant, so long as the listening and recording equipment did not physically intrude into the target’s property.
Then in 1967, the Court decided Katz. There it held that electronic surveillance does infringe upon Fourth Amendment rights, even if the surveillance does not physically intrude into a constitutionally protected area, such as a home. The Court adopted what evolved into the “reasonable expectation of privacy” test for when the Fourth Amendment applies. Under language taken from Justice John Harlan’s opinion in Katz, police must act reasonably whenever they propose to invade a subjective expectation of privacy that is objectively reasonable.
After Katz came down, the Court had to revisit some of its older decisions to see how they fared in the world of reasonable privacy expectations. One of the cases was Oliver v. United States. The issue there was whether people enjoy a reasonable expectation of privacy in their open fields. The answer was no under the property-based regime and continued to be no after Katz. The Court explained in Oliver, however, that unlike open fields—through which police may walk and look around without a warrant or probable cause—the curtilage is different. In the curtilage, people enjoy some of the same protection that covers the home, depending to some extent on how physically private the curtilage is, under United States v. Dunn.
The Slippery Concept of Curtilage
Following Oliver and Dunn, the Court seemed somewhat uninterested in further protecting the curtilage. For example, in California v. Ciraolo, the Court held that police flying an airplane in navigable airspace over a person’s curtilage and looking at what they could see in that curtilage did not constitute a Fourth Amendment search. Though the surveillance exposed the curtilage, which was surrounded by fences, police did not physically intrude upon the area and did not violate laws about where they could fly, and they therefore disturbed no reasonable expectation of privacy protected by the Fourth Amendment.
The status of curtilage arose again in the case of Florida v. Jardines. Here a detective who was also a dog handler walked up to the front door of a house accompanied by a dog who was trained to sniff for narcotics. When they reached the door, the handler loosened his hold on the leash and asked the dog to sniff. The dog became lively, pacing back and forth in front of the door and then stopping and indicating the presence of narcotics. Based on the dog’s alert, police sought and obtained a warrant, on the basis of which they searched the house.
The US Supreme Court held that what had happened in front of the target’s door was a Fourth Amendment search that required a warrant. An important reason for this conclusion was the fact that the dog was pacing and sniffing within the curtilage of the home, an area that is in some ways an extension of the home. Justice Antonin Scalia, who wrote the opinion for the Court, said that the important thing was not the fact that a dog was involved in the search. Any police officer, human or canine, who paced back and forth in front of someone’s door exploring and sniffing did so without any implied license from the resident.
The implied license refers to the fact that people who have a driveway and a door to their houses, unobstructed by fencing and no-trespass signs that instruct comers to go away, give implied permission for people like mail deliverers, neighbors seeking a flashlight or table salt, and solicitors selling goods or campaigning for a candidate to approach the front door. Such people can knock on the door and ask for the homeowner’s attention or leave a package. If no one answers the door, though, the visitor must leave. Exceeding the scope of the understood implied license might include lying down in front of the door, performing an interpretive dance on the driveway, or ringing the doorbell 10,000 times.
It may seem cumbersome to try to distinguish between the conduct that is permissible and the conduct that is impermissible in the curtilage under the implied license. It may, however, be no more difficult than distinguishing between permissible conduct inside a suspect’s home—when the police have been invited inside to interrogate their suspect—and impermissible conduct inside that same home. Police may walk through the indoor area in which the resident invited them to walk and may, if permitted, use the restroom. But they may not, once inside the restroom, open the medicine cabinet and read the names of the medications that the suspect is currently using.
Justices Ruth Bader Ginsburg and Sonia Sotomayor signed onto Justice Elena Kagan’s concurring opinion in Jardines and said that the Court should have reached the result that it did because the dog is like the high-tech device in Kyllo v. United States. Using such a device to find out that there are drugs in the house is a search. That ruling, however, would not be limited to the curtilage and would result in a prohibition against police asking a narcotics-trained dog on the public street to signal which houses contain illicit drugs.
A Lack of Clarity Begets a Lack of Clarity
The Court’s decision in Collins relied on some of these precedents but ultimately left things no clearer than it had found them. The Court said that when a vehicle—a motorcycle covered by a tarp—is located in a person’s curtilage, the automobile exception to the warrant requirement does not apply. Police, in other words, may not enter the curtilage in order to search the vehicle without a warrant, notwithstanding the automobile exception.
In one respect, the decision, which only Justice Alito completely rejected, makes good sense. The automobile exception has always applied in contexts in which the automobile stood on public property at the time of the search. It held that if police have probable cause to search a vehicle, they do not need to secure a search warrant in order to perform that search. If a vehicle is located in an area that represents an extension of the home—then there is no reason to think that the automobile exception would apply to entering that area in order to search the vehicle. In other words, police need no warrant to search the vehicle, but they do need a warrant to enter (and hence to search) private property for the vehicle.
The Court gives a number of examples that effectively illustrate the point. First, imagine that a vehicle is located inside someone’s house, and the police see the vehicle through a window. Does the automobile exception apply? Well, no. If police had lawful access to the inside of the house, then the warrant requirement would not stop them from being able to lawfully search the vehicle. But the fact that what they wish to search is a vehicle no more permits them to enter the house without a warrant than would the fact that what they wish to search is a wallet for which they have probable cause to search. Entering the house is an intrusion separate from the intrusion of searching the vehicle, and the same holds true for the curtilage.
The Court points out as well that the plain view exception to the warrant requirement requires that the police have lawful access to the item they wish to seize before they may go ahead and seize it. If police, for instance, view cocaine through the window of someone’s home, that sighting means they have probable cause to seize the drug and probable cause to enter the house. But what they don’t have is a warrant permitting them to enter the house, and entering without a warrant (assuming no additional exception to the warrant requirement) would violate the Fourth Amendment. The justices analogize the plain view situation to the officer’s circumstances in Collins. Having no lawful right of access to the target’s curtilage, police may not walk onto the curtilage to get to the vehicle that they have probable cause to search (along with the automobile exception). It is not that the automobile exception does not apply, then. It is that the preliminary step to invoking the automobile exception—reaching the vehicle—cannot happen without an unlawful entry onto the curtilage.
This all may sound very sensible, and it is. We know that the curtilage is protected from unlawful entry, and we know as well that police may search cars without a warrant. The problem is that we do not really know exactly when police have unlawfully entered the curtilage or even what precisely the protected part of the curtilage is. That is important if we are to figure out exactly what the police may and may not do.
The decision in Jardines is a bit confusing. The police there arguably do little that a neighbor or mail deliverer would not do. A police dog handler walks up to the door with a trained dog. The dog paces for a few minutes and then communicates to the handler that there are drugs inside the house. The two of them leave.
Imagine that your neighbor has not seen you in a few days and becomes worried about you. She is walking her dog, so she brings him along with her to knock on your door. She knocks, but there is no answer. She stands there, wondering what to do, while her dog eagerly sniffs around in front of the door, because dogs take in a lot of information about the world around them through their sense of smell. The neighbor decides to wait a few minutes, hoping you will show up. When you do not, she leaves.
In that case, which could easily happen, a private person and her dog act in almost the exact same way as the government handler and dog acted in Jardines. You might be thinking “yes, but there’s a difference if it is a police officer rather than a private person.” The problem with this argument is that an important test for whether the police are invading a reasonable expectation of privacy—i.e., whether they are “searching” for Fourth Amendment purposes and thus need a warrant—is whether the individual enjoys privacy from such behavior until the government comes along.
If you expect people to come up to your door and knock, then when police do the same, they are not invading any actual expectation of privacy. It is therefore puzzling to consider Jardines and the notion that police “searched” by bringing a narcotics dog to the door to sniff. But the Court did say there that the implied license for neighbors, solicitors, and others to come up to your door is far narrower than what the handler there did. Whether we agree or not, we can understand.
When it comes to Collins, however, the police did not really do anything unusual. They walked onto the driveway and then walked over to the motorcycle. A neighbor might have done that, and it is hard to imagine the resident yelling at the neighbor to stop it if that happened. The Court explains it by observing that the shortest pathway from the beginning of the driveway to the front door did not include the area where the vehicle was parked. That spot was partially enclosed.
Frustratingly, though, the Court does not say that the curtilage includes all areas around the house where one need not walk in order to get to the front door. That might be true, but it might not be. For now, then, we know that if a police officer on the property surrounding your home behaves in a manner that departs from the norms governing neighbors and such, then police have searched and must have a warrant, at least if a dog is involved. And we know that if police approach a vehicle in your driveway by taking a path that a visitor could or would avoid when approaching your front door, then they have illegally entered your curtilage absent a warrant.
The Court explains some of this by saying that it would not be fair to give extra Fourth Amendment protection to people who can afford a fully enclosed garage for their vehicles and less protection to those who must park in an open driveway. This sounds laudable, except for the fact that Fourth Amendment protection almost always tracks wealth. People who live in apartments likely have no “curtilage” at all in which to enjoy privacy. And people who live in single-room residences have exactly one room in which to enjoy the privacy associated with “houses” in the Fourth Amendment. In contrast, the owner of a mansion might have many thousands of square feet that the Fourth Amendment protects.
The unfortunate thing about Collins, then, is that it does little to clarify the scope of Fourth Amendment privacy near the house. For fans of privacy, it is a positive development, because it recognizes rather than rejects privacy in the curtilage. But for those who want to know exactly what qualifies as “curtilage” and against what sorts of intrusions, Collins leaves us about where we were. What we do know now is to avoid parking our cars in the pathway between the beginning of our driveway and the front door.