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.