Opposition Brief — Collins v. Virginia, 138 S. Ct. 53 (2017) (No. 16-1027)

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JUN -7 2017

OFFICE CFE THE CLcneK

SUPREME COURL US |

jn The

Supreme Court of the Anited States

3

RYAN AUSTIN COLLINS,

Petitioner,

v.

COMMONWEALTH OF VIRGINIA,

Respondent.

Sd —

On Petition For A Writ Of Certiorari

To The Supreme Court Of Virginia

°

BRIEF IN OPPOSITION

—EE ° —

MARK R. HERRING STUART A. RAPHAEL

Attorney Genera! of Virginia Solicitor General

Trevor S. Cox Counsel of Record

Deputy Solicitor General OFFICE OF THE VIRGINIA

Matraew R. McGuire ATTORNEY GENERAL

Assistant Solicitor General 202 North Ninth Stree

Richmond, Virginia 23219

(804) 786-7240

sraphael@oag.state.va.us

June Te 2017

COCKLE LEGAL BRIEY'S (600) #25-6064

QUESTION PRESENTED

Whether the Fourth Amendment’s automobile ex-

ception allows a warrantless daytime inspection of a

motorcycle’s vehicle identification number and license

plate, when the motorcycle is parked in the defendant's

driveway, adjacent to the steps leading to the front

door of the house, and when the officer has probable

cause to believe that the motorcycle is stolen and has

twice been used to elude police.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED............................. daniebn i

I EID ncn siccasosedesosecesocesssoosesosens il

TABLE OF AUTHORITIES .................00c0e:sseecceseeees iv

STATEMENT OF THE CASE....................cceeeeeeeeees 1

REASONS FOR DENYING THE PETITION ....... 11

I. The Virginia Supreme Court correctly held

that the automobile exception applies when

the vehicle is located in a driveway, is visi-

ble from the street, and is readily mobile..... 11

A. The automobile exception applies be-

cause Officer Rhodes had probable

cause to believe that the motorcycle

was stolen and had been used to elude

Si esttitenelitabieeinantathnepepsascietserdnesieneeces 12

B. The motorcycle’s presence in the drive-

way does not defeat the automobile

exception because the motorcycle had

ready access to the street...................... 16

C. Because petitioner had no reasonable ex-

pectation of privacy in the stolen motor-

cycle or its VIN and tag number, Rhodes

properly looked under the tarp............. 25

ll. There is no significant split of authorities

on the question presented .......................006. 27

III. This case is a poor vehicle to reach the ques-

a alo cen scceeietninnapinnienndion 33

ii

TABLE OF CONTENTS — Continued

Page

A. No court below made any finding that

the motorcycle was parked within the

I iieisictrsnprcntenianicnasieibeiinetiiniedininiemindinamnide 33

B. Even if he could escape the automobile

exception, Collins would not prevail on

his suppression motion........................+- 36

GET scteettinncsiedsievnnscccnatetinncensinennsenninimnnbent 38

iv

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Evans,

6 | EE eneeerenye nee mem eE En 33

Brigham City v. Stuart,

I ET a ss erinaiomapnmenmednanibinieniannente 19

California v. Carney,

471 US. 386 (1985) ................... 12, 13, 14, 16, 17, 18

Cardwell v. Lewis,

I lettin 22

Carroll v. United States,

267 US. 132 (1925) ..........2...000002 2, 11, 12, 13, 16, 24

Chambers v. Maroney,

BE Cs Ge COD vcrccccscccssccccecccccescccssees 13, 23, 24, 25

Commonwealth v. A Juvenile (No. 2),

580 N.E.2d 1014 (Mass. 1991).........0..........:ceeeeeeeees 20

Commonwealth v. White,

No. 160879, 2017 WL 2378798 (Va. June 1,

Sn itaei neha aiaicidimaainsiuinadiibieadaehnbieiaiiiaapenaeaaedeunned 2

Coolidge v. New Hampshire,

Se i MT ED ctirtcecresnetecsnscnccccsacstcsieiecs 21, 22, 23

Dyke v. Taylor Implement Mfg. Co.,

en ai ceeded lancome iatninimenaiin 15

Florida v. Jardines,

ee ee ID cetiriccitscnciistctieageaemntieniebemmcnedink 20

Keehn v. State,

279 S.W.3d 330 (Tex. Crim. App. 2009) .................. 20

v

TABLE OF AUTHORITIES — Continued

Page

Kentucky v. King,

ED a asuneeeneneenneen 11, 20

Maryland v. Dyson,

cc cnusensavenonieien 11, 12, 28

Michigan v. Thomas,

a isoumtiocdisiinicomedasuenial 16

Missouri v. McNeely,

I aa eaeemsannenes 11

New York v. Class,

475 U.S. 106 (1986) ............0.....-.000 14, 26, 30, 36, 37

Oliver v. United States,

EEE EN eee Ne en 35

Omanicare, Inc. v. Laborers Dist. Council

Constr. Indus. Pension Fund,

I i se crnanntunieibniinonnnnanetll 36

Pennsylvania v. Labron,

518 U.S. 938 (1996) 2.0.0.0... ccc ccccecccceeecseeeeeseenees 12, 28

Rakas v. Illinois,

a ucsebmepenesemincnnadounel 25

Redwood v. Lierman,

772 N.E.2d 803 (Tl. App. Ct. 2002)................... 32, 33

Robinson v. Commonwealth,

ee EE CE I, BIO vevncsccciccvncccsessosnasesssoossscons 20

Scher v. United States,

305 U.S. 251 (1938) ................... 16, 17, 18, 23, 30, 37

South Dakota v. Opperman,

inate taaactadeiai 13

vi

TABLE OF AUTHORITIES — Continued

Page

Spears v. United States,

8 TA A ST LOTTE 32

State v. Corbett,

516 P.2d 487 (Or. Ct. App. 1973) ..........0-. cece 20

State v. Lejeune,

576 S.E.2d 888 (Ga. 20038)..........cccccccssccccsceccossccsseees 32

State v. Merrill,

563 N.W.2d 340 (Neb. 1997)............cccccccecseeseeseeeeeees 20

State v. Vickers,

793 S.E.2d 167 (Ga. Ct. App. 2016)............. 31, 32, 33

Texas v. Brown,

460 U.S. 730 (19838) 22.0.0... cece ceeccceceeccesecseseesec eee ces 23

United States v. Beene,

818 F.3d 157 (5th Cir.),

cert. denied, 137 S. Ct. 113 (2016) ........ 29, 30, 31, 33

United States v. Blaylock,

535 F.3d 922 (8th Cir. 2008).........00. cece cece eee eee 27

United States v. Brookins,

345 F.3d 231 (4th Cir. 2003).........0...0cc cee 23, 27

United States v. DeJear,

552 F.3d 1196 (10th Cir. 2009)... eee, 31

United States v. Dunn,

I I IID on... ncccnnssocsvennesovanvenscenouseass 34, 35

United States v. Fields,

456 F.3d 519 (5th Cir. 2006)............000.000000.. 28, 29, 31

United States v. Goncalves,

642 F.3d 245 (1st Cir. 2011) ..........0.. eee 22, 23

Vil

TABLE OF AUTHORITIES — Continued

Page

United States v. Han,

Pe Be Ue Ce Gs Bice ccccecescccscsecsccctecesessesesss 2

United States v. Hatley,

15 F.3d 866 (Sth Cir. 1994)..............cccccccccccescsseseeees 27

United States v. Hines,

449 F.3d 808 (7th Cir. 2006)...............cccccscecceseessseees 27

United States v. Jones,

I 34

United States v. Markham,

844 F.2d 366 (6th Cir. 1988)....................ccccssccrscesees 27

United States v. Moody,

668 F. App’x 629 (5th Cir. 2016)................00...ccee ee 33

United States v. Reed,

26 F.3d 5238 (Sth Cir. 1994)...............ccccrscrseerccccecevees 28

United States v. Reinholz,

245 F.3d 765 (Sth Cir. 2001)................0scccccseresssssssee 27

United States v. Ross,

I a etal 12,13

United States v. Sinisterra,

Be ee Be ee I I i vspncncinsecnccsencsenesntecssened 29

United States v. Williams,

124 F. App’x 885 (5th Cir. 2005)..................c.cccee eee 29

Warden, Md. Penitentiary v. Hayden,

I Cs aeemeimenannnabaniel 15

Zivotofsky v. Clinton,

I SID css snonodenesasenysduvenelibepentianeieniibie 36

vill

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. IV ....10, 11, 14, 15, 20, 21, 27, 30, 34

STATUTES

Va. Code Ann. § 18.2-108(A) (2014).....0.0..0.00..0.0. cece 8

Va. Code Ann. § 46.2-817(B) (2014).......... ccc ccceeee. 15

RULES OF COURT

SEE aEI AEEL TIE Wheteishisindeoeceenininthospedanpaninanee nbsnnnichavnovenndniieintdiie 32

SECONDARY SOURCES

Wayne R. LaFave, Search and Seizure: A Trea-

tise on the Fourth Amendment (5th ed. 2012 &

SPIN TIT cctishciinncielainctlechenehboetsinnitnibiaieaassainanil 19, 21, 26

Mei Fung So, Search and Seizure: Reasonable

Expectation of Privacy in Driveways, 60 A.L.R.

5th 1 (1998 & Supp. 2016) ................... 19, 27, 33

1

IN THE

SUPREME COURT OF THE UNITED STATES

RYAN AUSTIN COLLINS, PETITIONER,

Vv.

COMMONWEALTH OF VIRGINIA, RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

1. On May 7, 2014, the Circuit Court of Albe-

marle County, Virginia convicted petitioner Ryan Col-

lins of one felony count of buying or receiving stolen

property, a 2008 Suzuki motorcycle. The conviction was

affirmed by the Virginia Court of Appeals and by the

Supreme Court of Virginia. Collins seeks to invalidate

his conviction on the ground that the trial court erred

in denying his motic» to suppress evidence obtained

when Albemarle County police officer David Rhodes

pulled back a tarp that covered the motorcycle in order

to read the license plate and vehicle identification

2

number (VIN) on the vehicle’s exterior. The facts sum-

marized below are taken from the preliminary hearing,

suppression hearing, and trial transcripts.’

Officer Rhodes had been investigating Collins be-

cause he suspected that Collins was the motorcycle

driver who had eluded him on July 25, 2013. Rhodes

was driving on the highway in his unmarked cruiser

when an orange and black Suzuki motorcycle ap-

proached from behind “at a very high rate of speed.”

Rhodes activated his rear radar and clocked the motor-

cycle at 100 mph in a posted 55-mph zone. As Rhodes

turned on his emergency lights, the motorcycle passed

by him and sped away. Rhodes initiated pursuit but

stopped the chase out of safety concerns when the mo-

torcycle reached speeds exceeding 140 mph.’ Rhodes

was able to jot down the license-plate number and his

* The transcripts were included in the Joint Appendix in the

Supreme Court of Virginia (“Va.-JA __”). Only the transcript of

the suppression hearing was reproduced in the appendix to the

petition for writ of certiorari. See Pet. App. 50. In reviewing a trial

court’s ruling on a suppression motion, however, “federal courts

have held uniformly that an appellate tribunal may consider evi-

dence adduced at trial that supports the district judge’s ruling.”

United States v. Han, 74 F.3d 537, 539 (4th Cir. 1996) (citing, inter

alia, Carroll v. United States, 267 U.S. 132, 162 (1925)). Virginia

courts follow that principle as well. See, e.g., Commonwealth v.

White, No. 160879, 2017 WL 2378798, at *1 (Va. June 1, 2017)

(“When considering whether to affirm the denial of a pretrial! sup-

pression motion, an appellate court reviews not only the evidence

presented at the pretrial hearing but also the evidence later pre-

sented at trial.”).

2 Pet. App. 66-67, 70-71.

3

dash camera recorded images of the motorcycle, a still

photograph of which was admitted into evidence.*

Rhodes testified that the orange and black motor-

cycle was “very unique.” It had a “‘stretched out’ rear

wheel, indicating that it had been modified for drag

racing.” It also had chrome accents and chrome

wheels.* Rhodes explained that “it didn’t look like

a conventional motorcycle.” It was “[nlot something

you'd normally see driving down the roadway and not

something you can buy from the factory either. So

that’s a customized type motorcycle.”

The tag number led Rhodes to Eric Jones, who re-

vealed that he had sold the motorcycle to Collins.®

Jones admitted that he knew the motorcycle lacked a

title certificate and was stolen.” Jones also told

Rhodes that he had informed Collins that the motor-

cycle was stolen.'' Officer Rhodes drove by the house

* See Pet. App. 71-72, 79. The photograph of the eluding mo-

torcycle is reproduced at Pet. App. 116.

* Pet. App. 86. See aiso Pet. App. 57.

° Pet. App. 3. See also Pet. App. 57.

® Pet. App. 34, 57.

" Pet. App. 57.

® Pet. App. 57-58.

* Pet. App. 78-80.

10 Va.-JA 140:8-141:4.

‘| At trial, Jones was not sure if he had told Collins that the

motorcycle was stolen, something he assumed was evident from

the lack of title. But Jones admitted that he had told Officer

4

where he believed Collins lived with his mother, but

Rhodes did not find Collins there and did not see the

motorcycle.”

On September 10, 2013, however, Officer Rhodes

heard Collins’s name mentioned on his police radio in

connection with an incident at the DMV." When

Rhodes arrived at the DMV, Collins was already being

interrogated by Officer McCall, who was investigating

Collins as a suspect in a different motorcycle-eluding

incident—also involving an orange and black motor-

cycle with an extended frame—that occurred on June

4, 2013.'* Collins denied to both officers that he owned

a motorcycle and denied involvement in any eluding.”

As Officer McCall questioned Collins, Officer

Rhodes was able to access Collins’s Facebook page,

where Collins had posted several incriminating pic-

tures. The photographs depicted a brick home with a

driveway on the left side and a “clearly visible” orange

and black motorcycle, resembling the one that had

eluded Rhodes, parked in the driveway in between two

other vehicles. (The Facebook photographs are repro-

duced at Pet. App. 112-13.)'* Rhodes testified that, as

Rhodes that he had informed Collins that the motorcycle was sto-

len. See Va.-JA 156:22-157:25. By omitting that fact, petitioner’s

amicus mischaracterizes the record. U.S. Justice Found. Br. 4.

12 Pet. App. 83-84.

3 Pet. App. 54.

4 Pet. App. 72-73; Va.-JA 166:8-23, 189:6-22.

18 Pet. App. 58, 74.

*6 See Pet. App. 56-57.

5

soon as he saw the Facebook photograph of the motor-

cycle, he was “100% sure” it was the same one that had

eluded him.*’

Rhodes used his smartphone to photograph the

Facebook pictures and then returned to question Col-

lins about them." Collins denied knowing anything

about the motorcycle or the house in the photographs;

he claimed he had not ridden a motorcycle in a few

months.’ Collins then left the DMV, and Rhodes saw

him get into a car with a male driver and female pas-

‘ senger.”°

Officer Rhodes received a tip that Collins had

taken a motorcycle very recently to a shop to have new

tires installed. Rhodes asked Officer McCall to investi-

gate that lead.”

In the meantime, Rhodes learned from an inform-

ant that the house in Collins’s Facebook pictures was

on Delmeade Avenue. Shortly after Collins left the

DMV, Rhodes drove to Delmeade Avenue and quickly

located the property in the photographs.” Unbeknown

‘T Va.-JA 100:7-8.

*® Pet. App. 54-55, 74.

19 Pet. App. 59; Va.-JA 175:15-176:6.

20 Va.-JA 18:17-23.

21 Pet. App. 62.

22 Pet. App. 58-60; Va.-JA 70:17-21, 71:11-16, 72:1-7.

6

to Rhodes, the Delmeade property was home to Col-

lins’s girlfriend (and the mother of Collins’s child); Col-

lins stayed there several nights a week.”

When Rhodes arrived at the Delmeade property,

he observed a motorcycle, covered in a white tarp,

parked in the driveway, “plainly” visible from the road-

way.** No one was present at the residence.” The

covered motorcycle had the same silhouette as the

stretched-out motorcycle Rhodes was looking for, and

he could also see a chrome wheel that was not fully

covered by the tarp.”* While standing on the sidewalk,

Rhodes took a photograph of the covered motorcycle.

See Pet. App. 114.?” The motorcycle was “a car length

or two” into the driveway.” It was parked against the

retaining wall, near the steps leading up from the

driveway to the front door of the house.” It was in the

same position depicted in the Facebook photograph.”

After photographing the vehicle from the side-

walk, Officer Rhodes walked up the driveway and

pulled back the tarp to read the motorcycle’s license

plate and VIN.*' He confirmed that the motorcycle was

28 Pet. App. 89-91.

*4 Pet. App. 60.

2 Va.-JA 18:13.

7° Pet. App. 60; Va.-JA 90:8-14.

*" Pet. App. 60-61; Va.-JA 179:17-19.

8 Pet. App. 77.

29 Pet. App. 114.

% Va.-JA 120.

$1 Va.-JA 179:19-22.

7

the same one involved in the July 25 eluding incident.”

Rhodes then ran the VIN and learned that the motor-

cycle had been stolen in New York.* The license plate

had also been changed from the tag he had seen on

July 25; the new tag was registered to a Kawasaki mo-

torcycle, not a Suzuki.** Rhodes then photographed the

uncovered motorcycle, see Pet. App. 115, and replaced

the tarp.*

Rhodes returned to his vehicle to surveil the prop-

erty, anticipating Collins’s imminent arrival.** A short

time later, a car drove by that Rhodes recognized as the

same one that Collins had stepped into when leaving

the DMV, but Collins was not in it.*”

Rhodes walked up the driveway and knocked on

the front door of the home; Collins came to the door.*®

Collins had changed clothes from the shorts and flip-

flops he had worn at the DMV. Now he was dressed in

motorcycle-appropriate attire. Despite that the tem-

perature outside exceeded 90 degrees, Collins had

donned jeans, a long-sleeved shirt, and Timberland-

type boots, “the same exact boots that the rider was

wearing” on July 25.

82 Va.-JA 180:16-17. See also Pet. App. 67, 87.

38 Pet. App. 68.

3¢ Pet. App. 62.

% Pet. App. 89.

86 Va.-JA 18:15-17.

37 Va.-JA 18:17-23.

38 Pet. App. 64.

3° Pet. App. 65, 67; Va.-JA 182:16-24.

8

Collins agreed to speak with Rhodes. He initially

claimed to know nothing about the motorcycle; then he

said it belonged to a friend.*® As Rhodes questioned

Collins, Officer McCall arrived with an invoice from

the shop that showed that Collins had purchased new

tires for the motorcycle eight days before.*! Collins

then admitted that he had ridden it from his mother’s

house to the shop to have new tires put on.** Upon fur-

ther questioning, Collins finally admitted to having

purchased the motorcycle from Jones.**

Officer Rhodes thereupon placed Collins under ar-

rest for receiving stolen property.“ In a search incident

to arrest, Rhodes discovered the motorcycle key in Col-

lins’s pocket.“

The trial court overruled Collins’s motion to sup-

press the evidence of the tag and VIN obtained when

Rhodes looked under the tarp.“* Collins went to trial,

was convicted of receiving stolen proverty, and was

sentenced to three years in prison with all but two

months suspended (time already served).*’

* Pet. App. 64-65.

*' Pet. App. 63-64; Va.JA 128.

* Pet. App. 65.

* Pet. App. 68.

“ Pet. App. 65-66.

** Pet. App. 66.

“© Pet. App. 107.

*? Va.-JA 269-70. See Va. Code Ann. § 18.2-108(A) (2014) (“If

any person buys or receives from another person, or aids in con-

cealing, any stolen goods or other thing, knowing the same to have

9

2. Collins appealed the trial court’s decision de-

nying his suppression motion, and the Virginia Court

of Appeals affirmed.“ The Court of Appeals found the

record insufficient to enable it to determine if the cov-

ered motorcycle was within the curtilage of the home.*®

Even assuming it was within the curtilage, the court

found that “numerous exigencies justified both [Rhodes’s]

entry onto the property and his moving the tarp to

view the motorcycle and record its identification num-

ber.”°° In particular, a reasonable officer could believe

that the motorcycle could be easily moved, particularly

in light of the prior eluding episodes.*' Moreover, Of-

ficer Rhodes knew that Collins was aware that he was

being investigated and that the police had Collins’s

own photographs showing the orange and black motor-

cycle in the driveway. The fact that the motorcycle

had been placed under a tarp was also consistent with

an intent to conceal it.®* Accordingly, the court found

the search lawful and that it “need not rely on the au-

tomobile exception, for exigencies existed aside from

the inherent mobility of the motorcycle.”™

been stolen, he shall be deemed guilty of larceny thereof, and may

be proceeded against, although the principal offender is not con-

victed.”).

Pet. App. 32-33.

48 Pet. App. 41.

8° Id.

51 Pet. App. 42.

82 Id.

>

* Pet. App. 44 n.4.

10

The Supreme Court of Virginia affirmed, though

on a different ground: it concluded that “the facts nec-

essary to resolve this case under the automobile ex-

ception to the warrant requirement of the Fourth

Amendment were established in the record before the

trial court. Therefore, Officer Rhodes’ search of the mo-

torcycle was justified. ...””

Justice Mims dissented. He concluded that Officer

Rhodes needed a warrant before looking under the

tarp. Like the majority, the dissent did “not address

the question of whether the part of the driveway where

the motorcycle was parked ... was curtilage or open

field for Fourth Amendment purposes.”” That did not

matter because, in the dissent’s view, “[s]earching the

tarp without a warrant was unconstitutional even if

the area where the motorcycle was parked is consid-

ered to be open field.”

Collins filed a timely petition for a writ of certio-

rari.

5 Pet. App. 26.

°° Pet. App. 30-31 (Mims, J., dissenting).

5? Pet. App. 30 n.4.

~ me.

11

REASONS FOR DENYING THE PETITION

I. The Virginia Supreme Court correctly held

that the automobile exception applies when

the vehicle is located in a driveway, is visi-

ble from the street, and is readily mobile.

The Fourth Amendment protects the “right of the

people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and sei-

zures.”°* That protection “generally requires police to

secure a warrant before conducting a search.”©

There are several exceptions to the warrant re-

quirement, however. “One well-recognized exception

... applies when the exigencies of the situation make

the needs of law enforcement so compelling that a war-

rantless search is objectively reasonable under the

Fourth Amendment.” The Virginia Court of Appeals

applied that exception to hold that Rhodes’s inspection

of the VIN and tag number was supported by both

probable cause and exigent circumstances.

Another long-standing exception is the “automo-

bile exception,” which this Court “recognized nearly

[92] years ago in Carroll v. United States, 267 U.S. 132,

153 (1925).”® “‘If a car is readily mobile and probable

cause exists to believe it contains contraband, the

* US. Const. amend. IV.

® Maryland v. Dyson, 527 U.S. 465, 466 (1999) (per curiam).

®! Missouri v. McNeely, 133 S. Ct. 1552, 1558 (2013) (quoting

Kentucky v. King, 563 U.S. 452, 460 (2011)).

% Pet. App. 39-44.

8° Dyson, 527 US. at 466.

12

Fourth Amendment .. . permits police to search the ve-

hicle without more.’”* As this Court made clear in

Maryland v. Dyson, “under our established precedent,

the ‘automobile exception’ has no separate exigency re-

quirement.”®

As shown below, the Supreme Court of Virginia

correctly applied the automobile exception here: Rhodes

had probable cause to believe that the motorcycle was

stolen and had been twice used to elude police; and de-

spite being under a tarp, the motorcycle was readily

mobile, parked in a driveway with easy access to the

street.

A. The automobile exception applies because

Officer Rhodes had probable cause to be-

lieve that the motorcycle was stolen and

had been used to elude police.

The Court in Carroll “recognized that the privacy

interests in an automobile are constitutionally pro-

tected; however, it held that the ready mobility of the

automobile justifies a lesser degree of protection of

those interests.” This Court elaborated on that mobil-

ity rationale in Carney, explaining that the automobile

exception was a categorical rule based on the inherent

exigency that the vehicle could be readily moved:

* Id. (quoting Pennsylvania v. Labron, 518 U.S. 938, 940

(1996) (per curiam)).

* Jd. (discussing United States v. Ross, 456 U.S. 798, 809

(1982), and Labron, 518 U.S. at 940).

% California v. Carney, 471 U.S. 386, 390 (1985).

13

The capacity to be “quickly moved” was clearly

the basis of the holding in Carroll, and our

cases have consistently recognized ready mo-

bility as one of the principal bases of the au-

tomobile exception. In Chambers |v. Maroney,

399 U.S. 42 (1970)], for example, commenting

on the rationale for the vehicle exception,

we noted that “the opportunity to search is

fleeting since a car is readily movable.” 399

U.S., at 51. More recently, in United States v.

Ross, 456 U.S. 798, 806 (1982), we once again

emphasized that “an immediate intrusion is

necessary because of “the nature of an auto-

mobile in transit. . . .” The mobility of automo-

biles, we have observed, “creates circumstances

of such exigency that, as a practical necessity,

rigorous enforcement of the warrant require-

ment is impossible.” South Dakota v. Opper-

man, [428 U.S. 364, 367 (1976)].*

Carney added, however, that while “ready mobility

alone was perhaps the original justification for the ve-

hicle exception,” later cases established a second justi-

fication: “‘less rigorous warrant requirements govern

because the expectation of privacy with respect to one’s

automobile is significantly less than that relating to

one’s home or office.’”** That reduced expectation of

privacy derives “from the pervasive regulation of vehi-

cles capable of traveling on the public highways.”®

67 Jd. at 390-91 (some citations omitted).

8 Jd. at 391 (quoting Opperman, 428 U.S. at 367).

6 Id. at 392.

14

“The public is fully aware that it is accorded less pri-

vacy in its automobiles because of this compelling gov-

ernmental need for regulation.”’°

Indeed, in New York v., Class, the Court made clear

that the VIN on a vehicle is subject to no reasonable

expectation of privacy whatsoever: “In light of the im-

portant interests served by the VIN, the Federal and

State Governments are amply justified in making it a

part of the web of pervasive regulation that surrounds

the automobile, and in requiring its placement in an

area ordinarily in plain view from outside the passen-

ger compartment.”’' Accordingly, Class held that the

locations on a vehicle where the VIN is required to be

displayed are categorically not subject to a reasonable

expectation of privacy for Fourth Amendment pur-

poses.”

The »utomobile exception plainly applies here. Of-

ficer Rhodes had probable cause to believe that the mo-

torcycle in the driveway was stolen and had been used

twice to elude police. Rhodes knew that Eric Jones

had sold the stolen vehicle to Collins. The motorcycle

had unique features, particularly its swept-back rear

wheel. When he saw the motorcycle in the picture on

Collins’s Facebook page, Rhodes was “100% sure” it

was the same one in the eluding incident. (It is a felony

to disregard a signal by a law-enforcement officer to

stop and to elude police in a manner that endangers

7 Td.

1 475 U.S. 106, 112 (1986).

% Td. at 114.

15

any person.’*) When Rhodes found the residence de-

picted in Collins’s Facebook pictures, the motorcycle

was covered with a tarp, but it was parked in the same

place as in the photo, it had the distinctive silhouette

of the vehicle in question, and Rhodes recognized a

chrome wheel peeking out at the bottom.”

Indeed, petitioner does not contend that probable

cause was lacking. Nor does he adopt the argument of

the lone dissenting justice below that there is some

meaningful difference between a search of the motor-

cycle and the search for the motorcycle.”* The motorcy-

cle itself was clearly the instrumentality of the crime

of eluding and the contraband involved in the crime of

receiving stolen property.”

Moreover, the motorcycle was readily mobile, not-

withstanding the tarp. The tarp could be removed and

the motorcycle kicked into gear within seconds. The

motorcycle had been used to elude police at speeds ex-

ceeding 140 mph. Collins had just installed fresh tires.

73 Va. Code Ann. § 46.2-817(B) (2014).

4 See supra at 6.

*® Pet. App. 27 (Mims, J., dissenting).

"® See Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221

(1968) (stating that the automobile exception applies when “the

officers conducting the search have ‘reasonable or probable cause’

to believe that they will find the instrumentality of a crime or ev-

idence pertaining to a crime”); Warden, Md. Penitentiary v. Hay-

den, 387 U.S. 294, 310 (1967) (“The Fourth Amendment aliows

intrusions upon privacy under these circumstances, and there is

no viable reason to distinguish intrusions to secure ‘mere evi-

dence’ from intrusions to secure fruits, instrumentalities, or con-

traband.”).

16

The vehicle was located in the driveway, with ready ac-

cess to the street.’’ And in any case, the automobile ex-

ception turns on the inherent mobility of a vehicle; it

does not “depend upon a reviewing court’s assessment

of the likelihood in each particular case that the [vehi-

cle] would have been driven away . . . during the period

required for the police to obtain a warrant.”

B. The motorcycle’s presence in the drive-

way does not defeat the automobile ex-

ception because the motorcycle had ready

access to the street.

The motorcycle’s location in the driveway of the

residence makes no constitutional difference. For start-

ers, Collins overlooks that this Court in Scher v. United

States applied the automobile exception to uphold the

warrantless search of a vehicle, tailed by police, that

the defendant then drove into his garage, “a few feet

back of his residence and within the curtilage.””® The

Court held that Carroil applied in that situation be-

cause “it seems plain enough that just before he en-

tered the garage the following officers properly could

have stopped petitioner’s car, made search and put him

under arrest.”*° Scher thus refutes petitioner’s incor-

rect claim that “this Court has always stopped short of

™ See supra at 2-6.

8 Michigan v. Thomas, 458 U.S. 259, 261 (1982) (per curiam).

7 305 U.S. 251, 253 (1938) (emphasis added).

8° Id. at 254-55.

17

applying [the automobile exception] on private, resi-

dential property.” Pet. 6.

Moreover, the considerations animating the auto-

mobile exception—ready mobility and reduced privacy

expectations—apply equally to vehicles like Collins’s

motorcycle, parked in a driveway with immediate ac-

cess to the street. Carney, for instance, held that the

automobile exception applies to vehicles even when

they are not on public highways—in that case a motor

home parked in a public parking lot. The automobile

exception applied there because the “motor home was

readily mobile” and “the vehicle was so situated that

an objective observer would conclude that it was being

used not as a residence, but as a vehicle.”*’ The Court

left open that the outcome might be different for “a mo-

tor home that is situated in a way or place that objec-

tively indicates that it is being used as a residence,”

such as if it were “elevated on blocks” or “connected to

utilities,” contrasting that with a motor home that had

“convenient access to a public road.”® Collins’s motor-

cycle fits the required elements of the vehicle excep-

tion: it was readily mobile, was obviously not being

used as a residence, and had “convenient access to a

public road.”

8. 471 US. at 388, 393.

82 Td. at 394 n.3.

18

Collins mistakenly asserts that the following pas-

sage from Carney supports his claim that the automo-

bile exception does not apply to vehicles in residential

driveways:

When a vehicle is being used on the highways,

or if it is readily capable of such use and is

found stationary in a place not regularly used

for residential purposes—temporary or other-

wise—the two justifications for the vehicle ex-

ception come into play.

Collins misreads the italicized language to conclude

that the automobile exception does not apply to vehi-

cles in residential driveways; he reasons that a resi-

dence where the vehicle is parked is a place “regularly

used for residential purposes.” Pet. 14. But that read-

ing not only conflicts with Scher, which applied the au-

tomobile exception to a vehicle within the curtilage of

a residence; it conflates the drive.«ay (which is not reg-

ularly used for residential purposes) with the house it-

self (which is).

As Professor LaFave has correctly explained,

Carney’s reference to “a place not regularly used for

residential purposes” applies comfortably “when the

vehicle is parked on the grounds of the residence where

police have some lawful basis for entering that area,”

88 Td. at 392-93 (emphasis added).

19

which is different from “when the vehicle is located in-

side private premises (e.g., a garage).”™ “Given the fact

that police may enter upon such commonly-used areas

of the curtilage as a driveway in the course of a legiti-

mate investigation, it would seem that a warrantless

seizure of a vehicle from such a place is just as proper

as it would be were the car parked on the street.”

Indeed, courts routinely hold that driveways are

subject to a lessened expectation of privacy, particu-

larly when the driveway, as in this case, is plainly vis-

ible from the street. For instance, this Court in

Brigham City v. Stuart upheld the warrantless entry

of the home to avert imminent injury after the officers

had already “proceeded down the driveway to investi-

gate” complaints about a loud party.*’ And “a police of-

ficer not armed with a warrant may approach a home

®¢ Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment § 7.2(b) n.59 (5th ed. 2012 & Supp. 2016) (em-

phasis added).

8 Td. § 7.3(a).

8° See Mei Fung So, Search and Seizure: Reasonable Expec-

tation of Privacy in Driveways, 60 A.L.R. 5th 1, § 2a (1998 & Supp.

2016) (“Even if the driveway was part of the curtilage, the courts

often go further to consider whether the driveway was impliedly

open to the public; thus, it is a place where the public should be

anticipated. ... Courts have held that there is no reasonable ex-

pectation of privacy in areas which are normal access routes to

the home that anyone, even police officers, have an implied invi-

tation to use as long as they have legitimate business, including

police investigation, and act as reasonably respectful citizens.”).

87 547 U.S. 398, 401 (2006).

20

and knock, precisely because that is ‘no more than any

private citizen might do.’”®*

State courts have similarly observed that “[i]n the

course of urban life, we have come to expect various

members of the public to enter upon such a drive-

way... . If one has a reasonable expectation that vari-

ous members of society may enter the property in their

personal or business pursuits, he should find it equally

likely that the police will do so.”** The Supreme Court

of Virginia has described this as an “implied consent”

that deems “an entry into the curtilage a reasonable

intrusion into an area otherwise protected by an expec-

tation of privacy under the Fourth Amendment.”” As

Professor LaFave has summarized: “when the police

come on to private property to conduct an investigation

or for some other legitimate purpose and restrict their

movements to places visitors could be expected to

go (e.g., walkways, driveways, porches), observations

8 Florida v. Jardines, 133 S. Ct. 1409, 1416 (2013) (quoting

King, 563 U.S. at 469).

58 Commonwealth v. A Juvenile (No. 2), 580 N.E.2d 1014,

1017 (Mass. 1991) (quoting State v. Corbett, 516 P.2d 487, 490 (Or.

Ct. App. 1973)). See also, e.g., State v. Merrill, 563 N.W.2d 340, 344

(Neb. 1997) (upholding warrantless entry onto driveway, stating

that “the record does not reflect that Merrill’s driveway was not

visible from the public roadway or that Merrill had a gate, fence,

or any other sort of obstruction that limited access to the drive-

way. Any member of the public could have entered upon Merrill’s

property in the same manner the officers did.”); Keehn v. State,

279 S.W.3d 330, 335-36 (Tex. Crim. App. 2009) (upholding war-

rantless search of van parked in defendant’s driveway).

9% Robinson v. Commonwealth, 639 S.E.2d 217, 222 (Va.

2007).

21

made from such vantage points are not covered by the

Fourth Amendment.”"!

Collins errs in claiming that Justice Stewart’s plu-

rality opinion in Coolidge v. New Hampshire® prevents

the automobile exception from applying to residential

driveways. Pet. 12. It is true that in part II-B of the

opinion, the plurality declined to apply the automobile

exception to justify the warrantless seizure of a Pon-

tiac parked in the defendant’s driveway, when the de-

fendant had already been arrested inside the house on

suspicion of murder. But the plurality did not single

out the driveway; it relied on myriad factors:

In this case, the police had known for some

time of the probable role of the Pontiac car in

the crime. Coolidge was aware that he was a

suspect in the Mason murder, but he had been

extremely cooperative throughout the investi-

gation, and there was no indication that he

meant to flee. He had already had ample op-

portunity to destroy any evidence he thought

incriminating. There is no suggestion that, on

the night in question, the car was being used

for any illegal purpose, and it was regularly

parked in the driveway of his house. The op-

portunity for search was thus hardly ‘fleeting.’

The objects that the police are assumed to

have had probable cause to search for in the

%} LaFave, supra note 84, § 2.3(f) (emphasis added).

% 403 U.S. 443 (1971).

22

car were neither stolen nor contraband nor

dangerous.”

Even taking the plurality opinion at face value, it

is easily distinguished on its facts from this case.“ Un-

like the police in Coolidge, who had ample time to ob-

tain a warrant to search the Pontiac, Rhodes learned

of the motorcycle’s location from Collins’s Facebook

page at the same time that Collins was briefly being

detained at the DMV, and Rhodes had good reason to

think that Collins would immediately hide the motor-

cycle as soon as he could get to it. The mobility concern

undergirding the automobile exception is particularly

acute when, as here, the vehicle’s “owner is alerted to

police intentions and, as a consequence, the motivation

to remove evidence from official grasp is heightened.”®”

Coolidge is further distinguishable because it in-

volved “a thorough and extensive search of the entire

automobile including the interior from which, by vac-

uum sweepings, incriminating evidence was obtained,”

which is intrusive compared to searches of a vehicle’s

exterior, “for which there [is] no reasonable expectation

of privacy.”™ Indeed, there is no reason to think that

8 Jd. at 460.

“ Various courts have found the Coolidge plurality opinion

distinguishable based on its “highly fact-specific” approach. E.g.,

United States v. Goncalves, 642 F.3d 245, 250 (1st Cir. 2011).

% Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (plurality).

% Id. at 593 n.9 (emphasis added).

23

the search of the license number and VIN on the Pon-

tiac in Coolidge’s driveway would have troubled the

Coolidge plurality.

In any event, Justice Stewart's plurality opinion in

Coolidge does not control the outcome here. Four other

Justices dissented in Coolidge and would have applied

the automobile exception.*’ And while Justice Harlan’s

concurrence provided the fifth vote, he specifically de-

clined to join part II-B of the plurality opinion and said

nothing about the significance of the driveway.” This

Court has aptly recognized that the plurality opinion

in Coolidge is “not a binding precedent.”” And to date,

“no circuit appears to read Coolidge as a per se rule

against all driveway searches without a warrant.”'°

Indeed, doing so would require overruling Scher.

The “alternatives” that Collins would force on po-

lice under the facts of this case are the same ones that

this Court found unreasonable in Chambers. Having

probable cause to walk up the driveway and look under

the tarp, perhaps Rhodes could have staked out the

%” 403 US. at 504 (Black, J., dissenting in part, joined by

Burger, C.J., and Blackmun, J.); id. at 521-22 (White, J., dissenting

in part, joined by Burger, C.J.).

% Jd. at 491 (Harlan, J., concurring).

% Texas v. Brown, 460 U.S. 730, 737 (1983).

100 Goncalves, 642 F.3d at 251. See also United States v.

Brookins, 345 F.3d 231, 237 n.8 (4th Cir. 2003) (“Although height-

ened privacy interests may be triggered when a vehicle is encoun-

tered on private property, the Coolidge plurality opinion cannot

be fairly read to create a bright-line rule precluding warrantless

searches on private property under all circumstances.”).

12 399 US. at 51-52.

24

property until a warrant could be obtained, blocking

or stopping Collins from moving the motorcycle until

the warrant arrived, or perhaps tailing Collins if he

showed up and made off with it. But Chambers rejected

the chase-the-suspect alternative: “Following the [ve-

hicle] until a warrant can be obtained seems an im-

practical alternative since, among other things, the

[vehicle] may be taken out of the jurisdiction.” In-

deed, experience taught Rhodes that Collins’s racing

bike was capable of escape speeds exceeding 140 mph.

Chambers also rejected the stake-out-and-immobilize

alternative, explaining that the practical burden on

the vehicle owner was the same either way:

Where this is true, as in Carroll and the case

before us now, if an effective search is to be

made at any time, either the search must be

made immediately without a warrant or the

[vehicle] itself must be seized and held with-

out a warrant for whatever period is neces-

sary to obtain a warrant for the search.’”

Chambers confirmed that, “[fJor constitutional pur-

poses, we see no difference between on the one hand

seizing and holding a {vehicle} before presenting the

probable cause issue to a magistrate and on the other

hand carrying out an immediate search without a

warrant.” In those circumstances, “there is little to

choose in terms of practical consequences between an

102 Jd. at 51 n.9.

103 Jd. at 51.

104 Td. at 52.

25

immediate search without a warrant and the [vehi-

cle]’s immobilization until a warrant is obtained.”*”

Accordingly, the automobile exception applies here for

the same reasons it applied in Chambers.

C. Because petitioner had no reasonable

expectation of privacy in the stolen mo-

torcycle or its VIN and tag number,

Rhodes properly looked under the tarp.

As shown above, Rhodes had probable cause to be-

lieve that the motorcycle was stolen, the motorcycle

was plainly visible from the street, and Rhodes had an

implied invitation to enter the driveway, given that the

motorcycle was parked adjacent to the steps leading up

to the front door. The fact that Collins unsuccessfully

tried to hide the motorcycle under a tarp makes no con-

stitutional difference.

Rhodes properly looked under the tarp for two in-

dependent reasons. First, Collins had no reasonable

expectation of privacy in the motorcycle because it was

stolen. “Obviously . . . a ‘legitimate’ expectation of pri-

vacy by definition means more than a subjective expec-

tation of not being discovered. A burglar plying his

trade in a summer cabin during the off season may

have a thoroughly justified subjective expectation of

privacy, but it is not one which the law recognizes as

‘legitimate.’”'* Concealing the motorcycle under a tarp

— a

°° Rakas v. Illinois, 439 U.S. 128, 143 n.12 (1978).

26

likewise could give Collins no privacy interest in the

stolen motorcycle.’

Second, Class makes clear that there is “no rea-

sonable expectation of privacy in the VIN,” so an officer

may reach into the vehicle to move things that obstruct

the VIN from plain view.’ There is no constitutionally

significant difference between moving papers off the

dashboard to read the VIN in Class, and lifting the

tarp in this case to read the VIN and tag number on

the motorcycle’s exterior. Put another way, because

Rhodes could have constitutionally walked up the

driveway to read the VIN if the motorcycle had been

uncovered, Class entitled him to lift the tarp that ob-

structed the VIN from view.

None of this means, as Collins frets, that officers

with probable cause but no warrant “could creep into

garages and carports at night, removing tarps [and]

rummaging for contraband in glove boxes.” Pet. 8.

Viewing the VIN and tag number on the exterior of the

vehicle in the daytime, from a vantage point in the

driveway where the officer has an implied license to be

present, is easily distinguished from entering enclosed

07 See LaFave, supra note 84, § 11.3(f) (“[A] thief has no le-

gitimate expectation of privacy in stolen property, as such, and

this means that the thief cannot establish standing solely by vir-

tue of his relationship to the stolen property, but would have to

establish that the police actually interfered with his person or

with a place as to which he had a reasonable expectation of pri-

vacy.”) (citation and quotation omitted).

8 475 US. at 114.

27

garages in the dead of night to look around. Not sur-

prisingly, courts have had no difficulty addressing such

dead-of-night scenarios, noting that officers in those

cases “violated the defendant’s reasonable expectation

of privacy when they entered the driveway late at

night, [at] a time when no reasonably respectful citizen

would be expected.” By contrast, the standard (in-

deed, commendable) police investigation conducted

here during normal daylight hours presents no threat

to Fourth Amendment values.

Il. There is no significant split of authorities

on the question presented.

Collins has not accurately depicted the legal land-

scape of courts that have addressed the application of

the automobile exception to residential driveways. We

agree that five federal circuits—the Fourth, Sixth, Sev-

enth, Eighth, and Ninth—have held that the automo-

bile exception applies to vehicles parked in residential

driveways.'” Although Collins claims that the Fifth

and Tenth Circuits have gone the other way, a closer

inspection reveals that claim to be exaggerated. Only

the Fifth Circuit has directly addressed the question,

108 60 A.L.R. 5th 1, § 7 (collecting cases).

10 See Brookins, 345 F.3d at 237-38 (4th Cir.); United States

uv. Markham, 844 F.2d 366, 368 (6th Cir. 1988); United States v.

Hines, 449 F.3d 808, 814 (7th Cir. 2006); United States v. Blaylock,

535 F.3d 922, 926-27 (8th Cir. 2008); United States v. Reinholz, 245

F.3d 765, 776 (8th Cir. 2001); United States v. Hatley, 15 F.3d 856,

859 (9th Cir. 1994).

28

and if there is a split at all, it is a shallow one, the res-

olution of which would have no bearing on the outcome

of this case.

In United States v. Reed, the Fifth Circuit upheld

the warrantless search of the trunk of a car, parked in

the defendants’ driveway, based on the district court’s

finding of exigent circumstances.'"' The drivers were

suspects in a bank robbery and the police traced the

car to the driveway based on a tracking device the

teller hid in the cash she handed over. The opinion no-

where says that the automobile exception does not ap-

ply to residential driveways. Collins just intuits that,

Pet. 19, because the Reed court engaged in an exten-

sive analysis of the facts showing that exigent circum-

stances were present. But Collins’s inference hardly

qualifies as a holding. And it is important to recall that

when Reed was decided in 1994, various courts were

mistakenly holding that a separate finding of exigency

was required for the automobile exception to apply, an

error that this Court corrected in Labron (1996) and

again in Dyson (1999), holding that the automobile ex-

ception has no such exigency requirement.''”

Collins next cites the Fifth Circuit’s 2006 decision

in United States v. Fields, but the court there upheld

the warrantless search of a vehicle that the driver

crashed into his own duplex while trying to elude po-

lice.“° It is true that Fields has dictum supportive of

'” 26 F.3d 523, 530 (5th Cir. 1994).

2 See Labron, 518 U.S. at 940; Dyson, 527 U.S. at 466-67.

3 456 F.3d 519, 524-25 (5th Cir. 2006).

29

Collins’s argument. The court read two earlier opin-

ions—neither involving residential driveways—for the

proposition that the “automobile exception may not ap-

ply when a vehicle is parked at the residence of the

criminal defendant.”"* But the court noted that that

issue was not presented because the defendant did not

use his duplex for residential purposes and because his

vehicle was not in the driveway, but crashed into the

duplex itself.’ In light of those distinctions, Fields

cannot fairly be counted as holding that the automo-

bile exception is inapplicable to residential driveways.

The best citation supporting Collins’s putative cir-

cuit split is the Fifth Circuit’s decision last year in

United States v. Beene,'* but Beene is internally incon-

sistent, and it is not apparent that applying Beene’s

holding would have any effect on the outcome of this

case. Police received a call that Beene, a known drug

dealer, had brandished a gun and then driven away in

a Honda Accord. An officer intercepted Beene’s car just

as Beene drove into his residential driveway, where he

parked five feet from the street and exited the vehicle.

Beene threatened the officer and was detained on the

ground. In the meantime, another officer arrived with

a drug-sniffing dog, which alerted on the Honda. The

4 Td. (emphasis added). The court cited dicta in United

States v. Sinisterra, which involved a mall parking lot, 77 F.3d

101, 104-05 (5th Cir. 1996), and United States v. Williams, which

involved an apartment-complex parking lot, 124 F. App’x 885, 887

(5th Cir. 2005).

“US 456 F.3d at 525.

6 818 F.3d 157 (5th Cir.), cert. denied, 137 S. Ct. 113 (2016).

30

officer opened the car door, finding illegal drugs and a

loaded handgun.'"’ The Fifth Circuit held that the use

of the dog to detect drugs inside the car did not violate

the Fourth Amendment because the portion of the

driveway where Beene parked “was not part of the cur-

tilage of Beene’s home.”'* The court, however, then ob-

served that exigent circumstances would be required

to search inside the car because the car was in the

driveway; the court remanded for the district court to

determine if exigent circumstances were present.!"9

Those two rulings are difficult to square. If the car

was outside the curtilage, justifying the use of a drug-

sniffing dog to detect drugs inside the car, then it

is hard to understand why the automobile exception

would not also apply to allow a search inside the car.

What is more, in light of the court’s ruling about the

use of the drug-sniffing dog, it is likely that the court

would have approved the search of the exterior of the

vehicle, or at least inspection of the VIN—the conduct

at issue in this case, independently authorized by

Class—notwithstanding that the car was in the drive-

way. We also note that the facts of Beene fall squarely

within the holding of Scher, which upheld the automo-

bile exception as applied to a vehicle that police fol-

lowed as it pulled into a garage, despite that it was

inside the curtilage.

UT Td. at 159-60.

18 Jd. at 162.

9 Td. at 164-65.

31

So while it is true that Beene diverges somewhat

from the rule in other circuits, it does not evidence a

split on the question presented in this case. As it

stands now, Beene is an outlier with regard to applying

the automobile exception to justify searching the inte-

rior of a car parked in a residential driveway. And it

says nothing about inspecting the exterior of a vehicle

or examining the vehicle’s VIN and tag number, the

only conduct that is relevant in this case.

The other cases cited by Collins likewise fail to

show that the relevant authorities are divided. The

Tenth Circuit in United States v. DeJear upheld a war-

rantless search of a vehicle parked in the driveway of

a residence that did not belong to the defendant.'”° The

court quoted the Fifth Circuit’s dictum in Fields that

“‘the automobile exception ... may not apply when

[the vehicle] is parked at the residence of the crimi-

nal defendant challenging the constitutionality of the

search.’”!*! But the Court found that possibility irrele-

vant because DeJear’s car was not parked outside “his”

residence.’ Although the court came close to the issue

presented here, it plainly did not reach it. Accordingly,

DeJear does not count as holding that the automobile

exception cannot apply to a defendant’s vehicle parked

in his own driveway.

Nor do the Georgia and L[llinois cases cited by

Collins show a relevant split. Pet. 7-8, 20-21. Vickers

1% 552 F.3d 1196, 1202 (10th Cir. 2009).

21 Td. (quoting Fields, 456 F.3d at 524-25) (emphasis added).

= id.

32

and Redwood are intermediate appellate decisions and

therefore do not count under Rule 10 as decisions of “a

state court of last resort.” Both cases also involved a

finding that the vehicle search occurred within the cur-

tilage of the defendant’s residence,’ something that

no court below has found in this case (a point on which

we expand below). And although Lejeune involved a de-

cision by Georgia’s highest court, that case is easily

distinguishable because the officers there lacked prob-

able cause to search the vehicle, the crucial prerequi-

site to applying the automobile exception.’

In short, because there is neither a pronounced

nor mature circuit split on the issue presented here,

“this is exactly the sort of issue that could benefit

from further attention” in lower courts.'” This Court

“should not rush to answer a novel question .. . in the

absence of a pronounced conflict,”'”’ a conflict that does

not yet exist. As Justice Ginsburg has noted, this Court

“jn many instances [has] recognized that when frontier

legal problems are presented, periods of ‘percolation’

in, and diverse opinions from, state and federal appel-

late courts may yield a better informed and more

123 See State v. Vickers, 793 S.E.2d 167, 171 (Ga. Ct. App. 2016);

Redwood v. Lierman, 772 N.E.2d 803, 813 (Til. App. Ct. 2002).

124 Vickers, 793 S.E.2d at 272; Redwood, 772 N.E.2d at 812-

13.

129 State v. Lejeune, 576 S.E.2d 888, 893 (Ga. 2003).

126 Spears v. United States, 555 U.S. 261, 270 (2009) (Roberts,

C.J., dissenting from summary reversal).

— mw.

33

enduring final pronouncement by this Court.”!”* This

is a clear case where prudence dictates waiting until a

genuine conflict arises.

Ill. This case is a poor vehicle to reach the ques-

tion presented.

This case also comes with two vehicle problems

that make it an unattractive candidate for certiorari.

A. No court below made any finding that

the motorcycle was parked within the

curtilage.

As just pointed out, Vickers and Redwood were

predicated on the vehicle’s being in the curtilage of

the defendant’s home.'”’ Although those intermediate

State-court decisions are not relevant in demonstrat-

ing a relevant split of authorities, their assumption

that the vehicle was in the curtilage underscores that

some courts have found curtilage determinations to be

important when assessing the automobile exception.!”°

The Fifth Circuit's decision in Beene, Collins’s lead

case, is one example of a court finding that the portion

of the driveway where the vehicle was parked “was not

part of the curtilage.”' And this Court has made clear

128 Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J.,

dissenting).

129 See supra at 32.

189 See 60 A.L.R. 5th 1, § 4(a) (collecting cases).

'S! 818 F.3d at 162 (emphasis added). See also United States

v. Moody, 668 F. App’x 629, 629 (5th Cir. 2016) (“Our review of the

34

that the “Government’s . . . intrusion” onto real prop-

erty that is outside the curtilage of a home “is of no

Fourth Amendment significance.”'?

Petitioner is wrong that the Commonwealth con-

ceded below that the motorcycle was within the cur-

tilage. Pet. 11. There was no such concession, and

petitioner identifies none in the record. What is more,

there is good reason to conclude that Collins’s motor-

cycle was outside the curtilage. United States v. Dunn

teaches that “curtilage questions should be resolved

with particular reference to four factors: [1] the prox-

imity of the area claimed to be curtilage to the home,

[2] whether the area is included within an enclosure

surrounding the home, [3] the nature of the uses to

which the area is put, and [4] the steps taken by the

resident to protect the area from observation by people

passing by.”?** The first factor admittedly tilts towards

a curtilage finding, as the motorcycle’s location in the

driveway was adjacent to the steps leading up to the

house, and therefore close to the house itself. But the

three other factors weigh against a curtilage finding:

the driveway was not within an enclosure that also

surrounded the home; the driveway was used only to

park vehicles; and no fence or gate was used to shield

activities in the driveway from travelers passing

record and pertinent jurisprudence supports the district court’s

conclusion that Moody’s driveway was not part of the curtilage of

his home.”).

82 United States v. Jones, 565 U.S, 400, 411 (2012).

88 480 U.S. 294, 301 (1987).

35

by.'** Under those circumstances, the portion of the

driveway where the motorcycle was parked was not

curtilage because it did not “harbor[] the ‘intimate ac-

tivity associated with the sanctity of a man’s home and

the privacies of life.’”'** Indeed, Collins himself had

posted pictures of the driveway and the motorcycle on

his Facebook page, discrediting any notion that he

tried to keep his activities there entirely private.

Petitioner assumes at times that the trial judge

found that the motorcycle was within the curtilage,

Pet. 6, but there was no such finding, Pet. App. 105-07

(bench ruling). The Virginia Court of Appeals expressly

declined to reach that question, “assum|[ing] without

decid[ing]” that Rhodes had “entered the curtilage.”!®

And although the curtilage issue did not factor into the

Virginia Supreme Court’s decision, the dissenting jus-

tice expressly declined to address whether the part of

the driveway where the motorcycle was parked was in

the curtilage.'*”

As shown above, this Court’s decision in Scher

demonstrates that the automobile exception can apply

to vehicles within the curtilage. But assuming for ar-

gument’s sake that the Court were interested in using

184 See Pet. App. 112-13 (photographs).

188 Dunn, 480 U.S. at 300 (quoting Oliver v. United States, 466

U.S. 170, 180 (1984)).

136 Pet. App. 41.

87 Pet. App. 30 n.4 (Mims, J., dissenting).

36

the vehicle’s presence in the curtilage to refine or nar-

row the automobile exception, the Court would have to

resolve disputed factual questions to adjudicate the

controversy. This “‘is a court of final review and not

first view.’”*** Prudence dictates preferring a case in

which curtilage findings have already been made by

the lower courts.

B. Even if he could escape the automobile

exception, Collins would not prevail on

his suppression motion.

This case is also a poor vehicle because, even set-

ting aside the automobile exception, Collins would not

prevail on his suppression motion. The search of the

VIN and tag number on the exterior of Collins’s motor-

cycle was authorized by Class. And the search was sup-

ported independently by exigent circumstances. As

the Virginia Court of Appeals correctly found, “numer-

ous exigencies justified both [Rhodes’s] entry onto the

property and his moving the tarp to view the motorcy-

cle and record its identification number.”™”®

In particular, Rhodes could reasonably believe

that Collins was already en route from the DMV to

hide the motorcycle, since Rhodes had just questioned

Collins about the photos on his Facebook page that

showed the motorcycle parked in the driveway of the

188 Omnicare, Inc. v. Laborers Dist. Council Constr. Indus.

Pension Fund, 135 S. Ct. 1318, 1338 (2015) (Thomas, J., concur-

ring) (quoting Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012)).

1989 Pet. App. 41.

37

Delmeade property. The fact that the motorcycle had

twice eluded police, at speeds upwards of 140 mph,

showed that it was capable of eluding them again. It

was also parked in the driveway, with ready access

to public roads. And Collins might arrive at any minute

to hide it. Indeed, that appears to be exactly what

Collins planned when he arrived at the Delmeade

property and changed into his motorcycle outfit, the

motorcycle key in his pocket.

* *K *

Accepting Collins’s legal theory would require this

Court to at least partially overrule New York v. Class

and Scher v. United States, two cases that neither Col-

lins nor his amicus even mentions. Moreover, there is

at best only a shallow split of authorities on whether

the automobile exception authorizes the search of the

interior of readily mobile vehicles parked in residential

driveways; there is no split at all on looking at the

VIN and tag numbers on the exterior of such vehicles.

And given the absence of any curtilage findings by the

courts below, and the fact that the search in any event

was plainly justified by exigent circumstances, this

case would be a poor choice for examining the scope of

the automobile exception in the context of residential

driveways.

38

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted,

MARK R. HERRING STUART A. RAPHAEL

Attorney General of Virginia Solicitor General

TREVOR S. Cox Counsel of Record

Deputy Solicitor General OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

Marry McC eral 202 North Ninth Sret

Richmond, Virginia 23219

(804) 786-7240

sraphael@oag.state.va.us

June 7, 2017

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Opposition Brief — Collins v. Virginia, 138 S. Ct. 53 (2017) (No. 16-1027) | Frix