Reply Brief — Ronell Moses, Jr., Petitioner v. United States

Supreme Court briefDec 23, 2025

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No. 25-399

In the Supreme Court of the United States

RONELL MOSES, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

KANNON K. SHANMUGAM

MASHA G. HANSFORD

JAKE L. KRAMER

EMMA R. WHITE

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

ELISA A. LONG

JASMINE SOLA

Counsel of Record

STACIE FAHSEL

SAMANTHA STERN

RENEE PIETROPAOLO

FEDERAL PUBLIC DEFENDER

FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

1001 Liberty Avenue,

Suite 1500

Pittsburgh, PA 15222

(412) 644-6565

Jasmine_Sola@fd.org

TABLE OF CONTENTS

Page

A. The decision below implicates a conflict

on both questions presented ............................................ 3

B. The decision below is incorrect ........................................ 7

C. The questions presented are important and

warrant the Court’s review in this case........................ 10

TABLE OF AUTHORITIES

Cases:

Ames v. Ohio Department of Youth Services,

605 U.S. 303 (2025) .............................................................. 4

Andy Warhol Foundation for the Visual Arts, Inc.

v. Goldsmith, 598 U.S. 508 (2023) ..................................... 3

Bovat v. Vermont, 141 S. Ct. 22 (2020) .................................. 2

Carpenter v. United States, 585 U.S. 296 (2018)...... 7, 10, 11

Chong v. United States, 112 F.4th 848 (9th Cir. 2024) ........ 6

Collins v. Virginia, 584 U.S. 586 (2018) .............. 2, 4, 7, 9-11

Florida v. Jardines, 569 U.S. 1 (2013) ................ 2, 5, 6, 8-10

Kyles v. Whitley, 514 U.S. 419 (1995) .................................... 6

Kyllo v. United States, 533 U.S. 27 (2001) ............................ 7

United States v. Carpenter,

926 F.3d 313 (6th Cir. 2019) ............................................. 11

United States v. Dunn, 480 U.S. 294 (1987) ......... 1, 3-5, 7, 8

United States v. Jones, 565 U.S. 400 (2012) ......................... 8

Constitution:

U.S. Const. Amend. IV ........................................ 2, 4-8, 10, 11

Miscellaneous:

Los Angeles County Sheriff’s Department,

14-23—Legal Standing Upon the Curtilage

of Residences (last visited Dec. 23, 2025)

<tinyurl.com/LACurtilage> ........................................... 4

(II)

In the Supreme Court of the United States

No. 25-399

RONELL MOSES, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF FOR THE PETITIONER

Petitioner was subject to a warrantless search of his

car while it was parked in the driveway of his home, adjacent to his front porch. Despite ample evidence that the

driveway was regularly used for family gatherings and as

a children’s play area, a divided Third Circuit panel affirmed the district court’s denial of petitioner’s motion to

suppress, holding that evidence of how petitioner’s family

actually used the driveway was irrelevant under United

States v. Dunn, 480 U.S. 294 (1987), and that the driveway

was not curtilage.

The government does not dispute that the decision below joined the minority side of a 4-3 conflict on the consideration of actual-use evidence under Dunn. Instead, it

contends that a conflict as to one factor of a multi-factor

test is too narrow to be worth the Court’s time. See Br. in

(1)

Opp. 14. But this Court routinely grants review in similar

circumstances, and resolving the conflict will have enormous practical implications for homeowners and law-enforcement officials alike. Nor can the government escape

the disagreement among courts as to the treatment of residential driveways more generally. It offers the meek

suggestion that the petition “overgeneraliz[es]” the degree of disagreement, see id. at 11, but it ultimately cannot explain away any, let alone all, of the many cases that

have rejected the approach taken below.

On the merits, the government declines to offer any

coherent justification for its proposed rule about actual

use. The government’s rule disregards history, Justice

Scalia’s views, and the Court’s recent focus on a propertybased understanding of the Fourth Amendment.

Throughout the petition, the government relies heavily on

the arguments that any portion of a driveway that is visible or within the path to the front door of a home cannot

be curtilage. See Br. in Opp. 2, 8-9, 14-15, 17. But this

Court has rejected those very arguments in its two most

recent curtilage decisions—Collins v. Virginia, 584 U.S.

586 (2018), and Florida v. Jardines, 569 U.S. 1 (2013).

This should have been an easy case under those precedents. But the ensuing widespread division in the lower

courts, and the government’s reprisal of arguments this

Court has specifically rejected, lays bare that “Jardines’s

[and Collins’s] message about the protections due a

home’s curtilage” has “badly eluded” not only the “state

[and] federal courts,” but also the federal government.

Bovat v. Vermont, 141 S. Ct. 22, 24 (2020) (Mem.) (Gorsuch, J., respecting the denial of certiorari). This Court

should not permit that division to fester. The petition for

a writ of certiorari should be granted.

A. The Decision Below Implicates A Conflict On Both

Questions Presented

The government does not dispute (Br. in Opp. 9-15)

that the lower courts are divided as to each question presented, contending only that petitioner “overstates the extent” of the disagreement. Id. at 7. Those conflicts warrant the Court’s review.

1. The court of appeals acknowledged that “[c]ircuits

have split” over the question whether evidence of a homeowner’s actual use of the searched property is relevant to

the Dunn inquiry. Pet. App. 12a. The government does

not deny the existence of that conflict. See Br. in Opp. 1415. Specifically, the government does not dispute that the

court of appeals’ decision conflicts with the decisions of

four other circuits (the First, Second, Ninth, and Tenth),

which consider the evidence of actual use that the court of

appeals deemed off-limits in this case. Nor does it dispute

that the Sixth and Eighth Circuits follow the court of appeals’ rule, which depends on the evidence available to the

searching officers. The resulting 4-3 conflict warrants the

Court’s review.

Unable to deny the acknowledged, well-developed

conflict, the government contends that the Court should

not bother to resolve it, characterizing it as “narrow” because it involves only one of the four Dunn factors. See

Br. in Op. 14. But that factor is critical, because the “nature of the uses to which the area is put” is central to the

ultimate inquiry whether the area is “intimately tied to

the home.” Dunn, 480 U.S. at 301. And the Court routinely grants review to resolve disagreement as to a single

factor of a multi-factor test. See, e.g., Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S.

508, 515-516, 525 (2023).

Relatedly, the government suggests that the conflict

is not worth this Court’s time because the Dunn factors

are a “heuristic” that “need not be applied in every curtilage case.” Br. in Opp. 15. That is no obstacle to review

either. Just last Term, the Court granted review to resolve a conflict as to the proper application of the first step

of the McDonnell-Douglas framework, a similar heuristic

that “merely aims to provide a sensible, orderly way to

evaluate the evidence.” Ames v. Ohio Department of

Youth Services, 605 U.S. 303, 308 & n.2 (2025) (internal

quotation marks and citation omitted).

And while the Dunn factors “need not be applied in

every curtilage case,” Br. in Opp. 15, courts are in fact applying them with startling frequency. A search of the

Westlaw database reveals approximately 400 decisions

citing Dunn since this Court decided Collins in 2018, with

approximately 130 of those cases applying the Dunn factors. And that is likely the tip of the iceberg, given the

number of trial-court rulings that never result in a written

decision or find their way into a commercial database.

Moreover, police officers are instructed to rely on the

Dunn factors to discharge their day-to-day duties. See,

e.g., Los Angeles County Sheriff ’s Department, 14-23—

Legal Standing Upon the Curtilage of Residences (last

visited Dec. 23, 2025) <tinyurl.com/LACurtilage>. Resolving the division over the application of the use factor

will provide much-needed guidance to lower courts and

law-enforcement officials alike.

Failing to diminish the conflict, the government

reaches for a pseudo-vehicle argument, contending that

review is “unwarranted” because petitioner’s Fourth

Amendment claim “would have failed even if actual-use

evidence were considered.” Br. in Opp. 14. But that is

surely incorrect, given the strength of that evidence here.

Judge Ambro, who wrote the dissenting opinion, would

have come out the other way on the actual-use question.

Pet. App. 30a-32a. And relying on that evidence, he would

also have come out the other way as to the application of

the Dunn factors and as to the ultimate Fourth Amendment claim. Id. at 27a-37a, 42a. In the First, Second,

Ninth, and Tenth Circuits, this warrantless search would

have been held unconstitutional.

The government’s primary basis for contending that

the “actual use” evidence could not make a difference here

is that the searched car “was still ‘plainly visible from the

street and on the path that any stranger might take to the

front door.’ ” Br. in Opp. 14 (quoting Pet. App. 8a). Tellingly, the government’s argument in that respect relies

exclusively on lower-court cases from 2007 or earlier. See

id. at 15. That is because the government is living in a

pre-Jardines world. The government tried the very same

argument in its Jardines brief, contending that the protections of the Fourth Amendment do not apply to “a

walkway or driveway leading to the front door” because

“they are customarily open to visitors and therefore may

be used by the police as well.” U.S. Br. at 24 n.8, Jardines,

supra (No. 11-564). But the Court flatly rejected that contention. The Court explained that “the background social

norms that invite a visitor to the front door do not invite

him there to conduct a search.” Jardines, 569 U.S. at 9.

Yet the government invokes that rejected argument

throughout its brief in opposition, see Br. in Opp. 2, 8-9,

14, 17, and the decision below relied on similar reasoning,

see Pet. App. 8a, 13a-14a. The fact that lower courts and

the federal government cling to that abrogated reasoning

underscores the need for the Court to intervene and restore the curtilage protections the Court had previously

mandated.

2. Nor does the government succeed in undermining

the conflict as to the second question presented. As the

petition explained, courts of appeals and state courts of

last resort are deeply divided about the curtilage status of

driveways. See Pet. 17-20. The government attempts to

muddy the waters by identifying fact-specific circumstances in each case in an effort to explain away the disagreement. See Br. in Opp. 9-11. But by the end of that

exercise, even the government is not persuaded, claiming

only that the petition’s assertion of a deep and growing

conflict is an “overgeneralization.” See id. at 11.

At bottom, the cases reveal two fundamentally irreconcilable views as to whether driveways are presumptively curtilage. The government suggests that some of

the cases that have found a driveway to be within the curtilage are distinguishable because “police officers ventured beyond the path to the front door and into other areas of the property” on their way to the driveway. Br. in

Opp. 9. But that reprises the government’s mistaken (and

rejected) view about the path to the front door. See p. 5,

supra. Regardless, the cases considered the path the officers followed in assessing the separate question (not at

issue here) whether the “trespass [onto the curtilage] was

unlicensed.” Chong v. United States, 112 F.4th 848, 852

(9th Cir. 2024) (per curiam), cert. denied, 145 S. Ct. 1218

(2025); see Jardines, 569 U.S. at 7.

The government’s next move is a puzzling one: it invokes the two-court rule, applicable where a petitioner

seeks review on a theory that “a concededly correct view

of the law was incorrectly applied to the facts” by both

lower courts. Kyles v. Whitley, 514 U.S. 419, 456-457

(1995) (Scalia, J., dissenting) (citation omitted). But that

is not petitioner’s theory at all. Instead, review of the second question presented is warranted because the decision

below erred in its legal analysis of curtilage: specifically,

by adopting the legally mistaken view that a portion of a

driveway in close proximity to the home is presumptively

not curtilage. That is precisely the kind of Fourth Amend-

ment question this Court routinely reviews. See, e.g., Collins, 584 U.S. at 588; Carpenter v. United States, 585 U.S.

296, 300 (2018); Kyllo v. United States, 533 U.S. 27, 29

(2001).

B. The Decision Below Is Incorrect

The government devotes significant attention to the

merits of both questions. See Br. in Opp. 8-9, 12-13. Although the merits are ultimately a matter for another day,

the government’s arguments miss the mark.

1. The government acknowledges that the curtilage

inquiry turns on whether an area “harbor[s] ‘the intimate

activity associated with’ ” the home, Br. in Opp. 8 (citation

omitted), yet it offers no explanation as to how disregarding the disputed area’s actual uses is consistent with that

inquiry. Indeed, the government offers no response to

most of petitioner’s arguments on this front. See Pet. 2026. As the petition laid out (Pet. 24-25), and amici have

underscored (Gun Owners Br. 12-16), the historical record

powerfully supports petitioner. The government offers no

countervailing historical evidence of its own to justify its

rule, which would allow the protections of the Fourth

Amendment to expand and contract based on considerations such as the time of day.

The government defends the officer-perception rule as

“consistent with this Court’s decision in Dunn” because

the Court there emphasized “objective data” available to

the officers that “the barn was not being used for intimate

activities of the home.” Br. in Opp. 12-13 (quoting Dunn,

480 U.S. at 302). But as the petition explained (Pet. 2223), while the Court deemed relevant evidence that was

objectively available to the officers, it does not follow that

evidence unavailable to the officers is off-limits. Tellingly, Justice Scalia faulted the majority for even consid-

ering the officers’ access to the evidence; deeming evidence unavailable to the officers to be categorically offlimits would be a gross departure from Justice Scalia’s understanding of the proper curtilage inquiry. See Pet. 23

(citing 480 U.S. at 305 (opinion concurring in part)).

More broadly, the government takes the view that all

that matters to the Fourth Amendment analysis is what

is apparent to a searching officer. See Br. in Opp. 13.

Again, that would have been news to Justice Scalia, who

explained that “[w]hat is significant” is how the disputed

area was being used, “whether or not the law enforcement

officials knew it.” Dunn, 480 U.S. at 305 (opinion concurring in part). Indeed, in emphasizing officers’ contemporaneous perceptions, the government seems to have forgotten that a “traditional property-based understanding”—not just the expectations of the defendant or the officers—is at the root of the Fourth Amendment. Jardines, 569 U.S. at 11; see United States v. Jones, 565 U.S.

400, 405-407 (2012).

Bereft of text and precedent, the government primarily contends that its rule is a better guide for “police in

their day-to-day activities.” Br. in Opp. 13 (citation omitted). But that tees up a core problem with the government’s rule. Under a rule that depends on an officer’s perception, an area closely associated with the home is fair

game for a warrantless search as long as the officer approaches the home when evidence of domestic activities is

least likely to be apparent. Under the government’s rule,

curtilage protection is the rare exception, coming into

play only when the area is being put to intimate use at the

time of the search itself.

2. The court of appeals also erred by determining

that the portion of the driveway searched was not curtilage. At the time of the search, petitioner’s car was adjacent to his front porch, in a private driveway enclosed on

three sides and used for domestic activities. See Pet. 7-9.

Under Collins, the search of petitioner’s car occurred

within the home’s curtilage. See Pet. 26-29.

Like the court of appeals, the government believes

that, absent unusual circumstances, driveways are not

curtilage. See Br. in Opp. 8-9. In making that argument,

however, the government flouts this Court’s precedents.

The government first attempts to distinguish Collins on

the ground that the portion of the driveway at issue in this

case was “on the path that any stranger might take to the

front door.” Br. in Opp. 8 (citation omitted); see id. at 9,

14, 17. But as explained above, that argument is flatly

contrary to Jardines. See p. 5. In similar disregard for

the Court’s precedents, the government contends that a

driveway cannot be curtilage if it is “plainly visible from

the street.” Br. in Opp. 8, 14 (citation omitted). But the

Court expressly rejected that argument in Collins, explaining that “[t]he ability to observe inside curtilage from

a lawful vantage point is not the same as the right to enter

curtilage without a warrant for the purpose of conducting

a search to obtain information not otherwise accessible.”

584 U.S. at 600.

To reconcile its cramped view with this Court’s precedents, the government contends that the driveway in Collins was curtilage only because it was “behind the front

perimeter of the house,” partially enclosed, and next to

the side door. Br. in Opp. 8-9 (citation omitted). But Collins was far from an edge case; the Court easily concluded

that the driveway “is properly considered curtilage” because it “constitutes an area adjacent to the home and to

which the activity of home life extends.” 584 U.S. at 594

(internal quotation marks and citation omitted). The government’s effort to limit Collins to its exact facts should

be rejected.

C. The Questions Presented Are Important And Warrant

The Court’s Review In This Case

Finally, the government asserts that this case is not a

suitable vehicle because, if petitioner prevails, the goodfaith exception to the exclusionary rule can save his conviction. See Br. in Opp. 15-17.

In support of that argument, the government reprises

its mistaken view that officers have carte blanche as long

as they “approach[ed] the home by the front path,” just as

the “Girl Scouts and trick-or-treaters” might. Br. in Opp.

17 (quoting Jardines, 569 U.S. at 8). In Jardines, however, the Court said just the opposite. Girl Scouts and

trick-or-treaters do not search the homeowner’s car and

person, so “[t]here is no customary invitation to do that.”

Jardines, 569 U.S. at 9. Regardless of the path taken,

“physically intrud[ing] on the curtilage to gather evidence” is a “search” under the Fourth Amendment that

“is presumptively unreasonable absent a warrant.” Collins, 584 U.S. at 593.

The good-faith exception is a particularly poor reason

to deny review in this case because the dissenting opinion,

which would have reached the opposite result as to the

curtilage inquiry, specifically explained that the goodfaith exception would not apply because “Collins and

Jardines are close enough to this case” to alert a reasonable officer that his conduct was unlawful. Pet. App. 41a

(opinion of Ambro, J.).

And even if, contrary to Judge Ambro’s views, suppression might ultimately be unwarranted, that is no reason to deny the petition. If this Court reverses the decision below, it can remand for lower courts to sort out the

good-faith inquiry—just as it has routinely done in previous Fourth Amendment cases. See, e.g., Collins, 584 U.S.

at 601; Carpenter, 585 U.S. at 321. And regardless of how

the exclusionary-rule analysis would play out in this case,

the Court’s intervention to restore the correct understanding of curtilage will provide key guidance for “police

in their day-to-day activities.” Br. in Opp. 13. The government apparently prefers that this Court stay out of the

business of interpreting the Fourth Amendment entirely.

But this Court’s consideration of the questions presented

in Carpenter and Collins were hardly wasted, even

though the petitioners’ convictions in both cases were ultimately affirmed. See, e.g., United States v. Carpenter,

926 F.3d 313, 317-318 (6th Cir. 2019). Any other approach

would all but eliminate the Court’s ability to review important questions of Fourth Amendment law and correct

lower-court decisions, such as this one, that undermine

core Fourth Amendment protections.

The petition for a writ of certiorari should be granted.

Respectfully submitted.