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

AND Supreme Court, U.S.

BRIEFS FILED

No. 16-1027 MAR 27 201

05 - OFFICE OF THE CLER

IN THE ’

Supreme Court of the Anited States

RYAN AUSTIN COLLINS, Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA, Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Virginia

Brief Amicus Curiae of

United States Justice Foundation, Gun Owners

Foundation, Gun Owners of America, Inc.,

Downsize DC Foundation, DownsizeDC.org,

Conservative Legal Defense and Education

Fund, and Policy Analysis Center

in Support of Petitioner

JOSEPH W. MILLER ROBERT J. OLSON*

U.S. Justice Foundation HERBERT W. TITUS

932 D Street, Ste. 2 WILLIAM J. OLSON

Ramona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amicus Curiae WILLIAM J. OLSON, P.C.

U.S. Justice Foundation 370 Maple Ave. W., Ste. 4

Vienna, VA 22180

(703) 356-5070

wjo@mindspring.com

Attorneys for Amici Curiae

*Counsel of Record March 27, 2017

TABLE OF CONTENTS

Page

I, gC wicca eeeneecense 1

INTEREST OF THE AMICI CURIAE........... 0.005: 1

SUMMARY OF ARGUMENT. ...........--.-.0ee-: 1

ARGUMENT

I. THE SUPREME COURT OF VIRGINIA MISSTATED

THE FACTS UPON WHICH [IT FOUND PROBABLE

Il. THE SUPREME COURT OF VIRGINIA

MISTAKENLY IGNORED JONES AND JARDINES

TO THE PREJUDICE OF THE PETITIONER ....... 7

A. The Supreme Court of Virginia

Completely Ignored the Governing

Principles in Jones and Jardines......... 7

B. Jones and Jardines Restored the Fourth

Amendment’s Property Baseline......... 9

C. The Police Violated Collins’ Fourth

Amendment Property Rights........... 12

III. THE COURTS BELOW HAVE UTILIZED THIS

COURT’S AUTOMOBILE EXCEPTION TO

SWALLOW UP THE FOURTH AMENDMENT .... . 14

A. The Original Purposes of the Automobile

Exception Do Not Apply to this Case .... 14

ll

B. As Used Here, the “Automobile

Exception” Undermines the Fourth

Amendment’s Property Rights “Baseline”

Re-Established in Jones and Jardines ...

IV. THIS COURT SHOULD GRANT THE PETITION TO

RECONSIDER THE AUTOMOBILE EXCEPTION ...

A. Exigency Because of Inherent Mobility ...

B. Mobility Without Exigency .............

C. No Mobility — So Exigency And

Pervasive Regulation..................

D. Reduced Expectations of Privacy ........

E. In the Face of Heightened Privacy

Interests, Back to Mobility .............

Rs sa bon a gE 65 Ob 63s ke ae aS

AMICUS APPENDIX: PETITION FOR REHEARING

(OCT. 17, 2016)

17

18

20

ill

TABLE OF AUTHORITIES

Page

U.S. CONSTITUTION

Fourth Amendment ................... 1, passim

CASES

Cady v. Dombrowski, 413 U.S. 433 (1973) .... 22, 24

California v. Carney, 471 U.S. 386 (1985)... .. 15, 24

California v. Minjares, 443 U.S. 916 (1979) ....... 4

Carroll v. United States, 267 U.S. 132

EASE SEES SS at SO a ne eee 3, passim

Chambers v. Maroney, 399 U.S. 42 (1970)....... 22

Coolidge v. New Hampshire, 403 U.S. 443

LE apes tag ot ee pe aa eae en wen 14, 19

Florida v. Jardines, 133 S. Ct. 1409 (2013). 2, passim

Florida v. White, 526 U.S. 559 (1999)........... 14

Katz v. United States, 389 U.S. 347 (1967) ....9, 10

Maryland v. Dyson, 527 U.S. 465, 467 (1982).... 1, 2

Pennsylvania v. Labron, 518 U.S. 938 (1996). .... 24

South Dakota v. Opperman, 428 U.S. 364

I a re ee als 22, 23

Terry v. Ohio, 392 U.S. 1 (1968) ............... 19

United States v. Jones, 565 U.S. 400

ae CER eres td ue a Bins ose 2, passim

United States v. Ross, 456 U.S. 798 (1982)....... 19

Warden v. Hayden, 387 U.S. 294 (1967).......... 9

MISCELLANEOUS

K. H. Chilcoat, “The Automobile Exception

Swallows the Rule,” 90 J. CRIM. L. &

CRIMINOLOGY, 917, 945 (1999-2000)......... 17

1V

L. Langton, Ph.D., and M. Durose,“Police

Behavior During Traffic and Street Stops,

2011,” BJS, September 2013............... 20

C.S. Lewis, God in the Dock (1970)............. 21

L. Katz, “The Automobile Exception

Transformed: The Rise of a Public Place

Exemption to the Warrant Requirement,”

36 CASE W. RES. 375 (1986)................ 14

S. Warren & L. Brandeis, “The Right to Privacy”

4 HARVARD L. REV. 193 (Dec. 15, 1890) ....... 9

INTEREST OF THE AMICI CURIAE'’

United States Justice Foundation, Gun Owners

Foundation, Downsize DC Foundation, Conservative

Legal Defense and Education Fund, and Policy

Analysis Center are nonprofit educational and legal

organizations, exempt from federal income tax under

Internal Revenue Code section 501(c)(3). Gun Owners

of America, Inc. and DownsizeDC.org are nonprofit

social welfare organizations, exempt from federal

income tax under IRC section 501(c)(4). These

organizations were established, inter alia, for purposes

related to participation in the public policy process,

including conducting research, and informing and

educating the public on the proper construction of state

and federal constitutions, as well as statutes related to

the rights of citizens, and questions related to human

and civil rights secured by law.

SUMMARY OF ARGUMENT

The Supreme Court of Virginia erred when it ruled

that the constitutionality of the search of a motorcycle

within the curtilage of a house should be decided based

on this Court’s automobile exception to the Fourth

Amendment warrant requirement. That ruling was

grounded exclusively on this Court’s 1984 decision in

Maryland v. Dyson, because the motorcycle (i) was

’ It is hereby certified that counsel for the parties have consented

to the filing of this brief; that counsel of record for all parties

received notice of the intention to file this brief at least 10 days

prior to the filing of it; that no counsel for a party authored this

brief in whole or in part; and that no person other than these

amici curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

2

mobile and (ii) allegedly constituted contraband.

However, as clearly demonstrated by Petitioner in his

petition for rehearing to the Supreme Court of

Virginia, the officers conducting the warrantless

search of the curtilage of the house where Collins was

living had no reason to believe the motorcycle had been

stolen at the time of the search, rendering the Dyson

rule inapplicable.

Petitioner repeatedly argued below’ the

applicability of this Court’s recent decisions in United

States v. Jones and Florida v. Jardines, which re-

established the primacy of the Fourth Amendment’s

protection of property, and instructs courts to resort to

expectations of privacy only when the property

principles do not resolve the case in favor of the person

seized or searched. Nevertheless, the Supreme Court

of Virginia did not even address the applicability of

those cases. Had those precedents been applied, it

would have been clear that the officers who invaded

the curtilage of a home without invitation or warrant

were no better than trespassers.

Even if the automobile exception could be said to

apply to this case, it would not justify a warrantless

trespass to conduct the search within the curtilage of

a home. The mere fact that a vehicle is moveable

cannot justify such a search of private property

without a warrant. The Virginia Supreme Court's

assumption that this Court’s automobile exception was

unlimited was error.

Lastly, should this Court grant certiorari to

consider the applicability of the automobile exception

3

on private property, it should use this case to

reconsider the automobile exception, which has been

expanded incrementally in a long series of cases to the

point where it bears no relation to the purposes for

which it was originally crafted in Carroll v. United

States over 90 years ago.

ARGUMENT

Il. THE SUPREME COURT OF VIRGINIA

MISSTATED THE FACTS UPON WHICH IT

FOUND PROBABLE CAUSE.

All three Virginia courts determined that the police

had probable cause to enter the property where Collins

resided as well as to search the motorcycle. The

Supreme Court of Virginia, however, made a very

different probable cause finding — one that contradicts

the record, raising serious questions about the

integrity of the Court’s decision that the search fits

within the automobile exception to the warrant

requirement.

After its pretrial hearing on Collins’ motion to

dis: uiss, the trial court found the police had probable

cause to believe the motorcycle parked at the residence

was the same motorcycle that had eluded the police.

See App. 106-07. Likewise, the Court of Appeals

agreed that there was probable cause “to believe that

the motorcycle was the one from the eluding

incident.” 773 S.E.2d at 45. The Supreme Court of

Virginia, however, claimed that “[t]he facts of this

case” show “Officer Rhodes had several reasons to

believe the motorcycle was contraband” — i.e., that

4

it was stolen property. 790S.E.2d at 617. However,

there is simply nothing in the record to support the

Virginia Supreme Court’s assertion that the police had

probable cause to believe Collins’ motorcycle was stolen

at the time they performed their search. See Amicus

App at 2-4.

The Supreme Court of Virginia stated that

probable cause was based on the fact that “Eric Jones

had informed Officer Rhodes that he sold Collins the

motorcycle with the warning that it was stolen.

Therefore, when he arrived at the ... residence ...

Officer Rhodes already suspected that the

motorcycle which had eluded him and Officer McCall

was stolen property.” 790 S.E.2d at 617. This

finding was not based on anything known to the

officers at the time of the search, but erroneously

based on Jones’ testimony “at trial” that he “sold

Collins the motorcycle in April 2013 with the caveat

that the motorcycle lacked title and was stolen.” Jd. at

613.

In his petition for rehearing below, Collins alerted

the Supreme Court of Virginia to this discrepancy,

documenting it as both “unsupported by the record and

inconsistent with Officer Rhodes’ testimony.” See

Amicus App. at 2. Additionally, Collins’ petition

reminded the Court that “[p]robable cause can ‘only be

measured by objective facts known to the police officer

prior to the search” citing California v. Minjares, 443

U.S. 916, 921 (1979). Id. at 4.

According to both the record and factual recitations

by all three courts, at the time that he performed his

5

search, the only thing Officer Rhodes knew was that

Jones had sold Collins a motorcycle. It was only

“[llater, at trial” that Jones testified that both he and

Collins knew the motorcycle was stolen. If Jones had

told Officer Rhodes that the motorcycle was stolen

when they spoke on July 25, 2013 (App. at 80), as the

Supreme Court of Virginia claimed, it would make

little sense that Officer Rhodes had done nothing with

the information until the search of Collins’ motorcycle

three months later on September 25, 2013.’

As Collins pointed out in his rehearing petition, the

Virginia Supreme Court’s probable cause finding

“cannot be relied upon as justification for the

warrantless search,” because of its erroneous factual

assumption that prior to the search of the curtilage of

Collins property they had reason to believe that the

motorcycle was “contraband.” Amicus App. at 4. This

error was both material and prejudicial.

The Supreme Court of Virginia explained that,

although the Court of Appeals had “analyzed the issue

based on probable cause and exigent circumstances,

this case is more appropriately resolved under the

automobile exception” (App. 12), resting its opinion

upon a 1982 decision of this Court:

* See App. at 101 (trial counsel argued that learning “subsequent

to [the search] that vehicle was, in fact, reported stolen had

nothing to do with eluding which was the reason for the ... search

in the first place.”); see also App. at 85 (Officer Rhodes admitting

that he did not believe the motorcycle to be contraband — i.e.,

stolen — when he searched it).

6

The Supreme Court has articulated a simple

bright-line test for the automobile exception:

“fi]f a car [i] is readily mobile and [ii] probable

cause exists to believe it contains

contraband, the Fourth Amendment permits

police to search the vehicle without more.

[Citing Maryland v. Dyson, 527 U.S. 465, 467

(1982).] Applying that test to this case, we

hold that Officer Rhodes’ warrantless search of

the motorcycle was justified under the

automobile exception.... [App. 14-15 (emphasis

added).]

In order to establish the linkage between the facts

of this case and the Dyson rule, the Supreme Court of

Virginia wrongly claimed that “Officer Rhodes Had

Probable Cause to Believe the Motorcycle Was

Contraband.”* App. 15. This false claim that the

motorcycle “was contraband,” permitted the court to

decide the case under the Dyson rule which applied

only “if’ a vehicle “contains contraband” (and, thus,

arguably if a vehicle is contraband). The Virginia

Supreme Court’s application of the automobile

exception is unsupported and cannot stand.

The Court's failure to grant Collins’ rehearing

petition to remedy this obvious error undermines the

integrity of the Virginia Supreme Court’s

interpretation and application of this Court’s

* The court assumed without any discussion that there was no

distinction between a vehicle which “contains contraband” and

one which “was contraband.”

7

automobile exception to this case, necessitating review

by this Court. See 790 S.E.2d at 613.

Il. THE SUPREME COURT OF VIRGINIA

MISTAKENLY IGNORED JONES AND

JARDINES TO THE PREJUDICE OF THE

PETITIONER.

A. The Supreme Court of Virginia

Completely Ignored the Property Baseline

Established in Jones and Jardines.

The Supreme Court of Virginia granted review to

decide two assignments of error to the lower courts:

whether “the officer illegally trespassed onto

private property for [the] purpose of conducting a

search in violation of [the] Fourth Amendment,” and

whether “the officer acted lawfully under the Fourth

Amendment in entering the property and searching

the motorcycle.” 790 S.E.2d at 616 (emphasis added).

However, the court disregarded those questions,

resolving Collins’ property claims as if they were based

upon expectations of privacy under the automobile

exception.

At the pretrial hearing on Collins’ motion to

suppress, defense counsel correctly noted that “the two

cases that are on point are ... United States v. Jones

and Florida v. Jardines.” App. at 97. Counsel

correctly explained that Jones “revolvijes] around

trespass on ... property [and] has nothing to do with ...

reasonable expectation [fof] privacy.” Jd. Counsel

noted that Jardines mandates that “expectation of

privacy ... is not an issue” and that “officers may not

8

enter [the home or curtilage] for the purposes of doing

a search without a warrant.” /d. at 98.

In denying Collins’ motion to suppress, the trial

court revealed that it did not understand that Jardines

had been based on property rights, claiming that

“while I don’t find the facts [from Jardines] to be

similar [to the facts here], I find the issue to be similar

and that is what is a reasonable expectation of

privacy.” App. at 105.

The Virginia Court of Appeals also addressed

Jones and Jardines, deciding that “neither [case]

addresses any exceptions to [Fourth Amendment]

protections.” 773 S.E.2d at 621. Ina lengthy footnote,

the court dismissed the applicability of Jones because

the automobile exception issue had not been argued in

the case. Jd. at 621, n.1. In a separate footnote, the

court of appeals also minimized and dismissed

Jardines, claiming that it “merely [offers] support for

the familiar concept that the Fourth Amendment

protects the curtilage of the home....” Jd. at 621, n.2.

In other words, the Court of Appeals treated Jones and

Jardines as if the principles therein have absolutely no

application or relevance to the automobile exception,

even when that exception is used to justify a search of

a vehicle within the curtilage of a home.

Whereas the lower Virginia courts gave Jones and

Jardines short shrift, the Supreme Court of Virginia

ignored them completely,‘ even though Jones and

* Only incidentally did the Supreme Court of Virginia quote from

Jardines to define what constitutes the curtilage of the home.

9

Jardines constituted the central legal argument made

by defense counsel in the trial court.

But how can a court decide a Fourth Amendment

case about automobiles, and completely ignore Jones?

And how can it decide such a case about the curtilage

of a home, without even discussing Jardines? Both

Jones and Jardines apply factually and legally to this

case — and yet the Supreme Court of Virginia ignored

them both.

B. Jones and Jardines Restored the Fourth

Amendment’s Property Baseline.

Beginning in the 1960's, this Court began to decide

Fourth Amendment cases based on the atextual view

that the Fourth Amendment protects only a right to

privacy (a right first articulated in an 1890 law review

article co-authored by then-attorney Louis Brandeis).”

Although initially foretold in Warden v. Hayden, 387

U.S. 294 (1967), and applied soon thereafter in Katz v.

United States, 389 U.S. 347 (1967) as a way to increase

the Fourth Amendment protection of unfamiliar

modern technologies, the right to privacy soon began to

have precisely the opposite effect. Over the next 45

years, many protections of the Fourth Amendment

have been slowly eroded based on judges’ perceptions

of what governmental intrusions were necessary, as

App. 30.

® See S. Warren & L. Brandeis, “The Right to Privacy” 4 HARVARD

L. REV. 193 (Dec. 15, 1890).

10

balanced against what expectations of privacy were

reasonable.®

In 2012, the privacy stranglehold on the Fourth

Amendment ended. In United States v. Jones,

government agents placed a GPS tracking device on a

suspect's Jeep, and then used the transmitter to track

his location over an extended period of time.

Unsurprisingly, based on nearly five decades of privacy

precedents, the government argued that “no search

occurred here, since Jones had no ‘reasonable

expectation of privacy’ in the area of the Jeep accessed

by Government agents (its underbody) and in the

locations of the Jeep on the public roads.” Id. at 950.

But the Court refused to grant the government carte

blanche authority to track Americans as if they were

dogs embedded with microchips.

In an effort to perform triage on a hemorrhaging

Fourth Amendment, the Court in Jones returned to

first principles, and rediscovered (or at least

reaffirmed) that the Fourth Amendment first and

foremost protects fixed individual property rights free

from government intrusion and, only secondarily,

protects evolving privacy considerations. /d. at 949-51.

From that perspective, the Court found that attaching

the device was a “physical intrusion” under the Fourth

Amendment, which violated Jones’s right to exclusive

possession. Jd.

* See Katz at 360 (Harlan, J., concurring, coining the phrase

“reasonable expectation of privacy”).

11

The following year, the Court continued its

revitalization of the Fourth Amendment’s property

roots in Florida v. Jardines, 133 S.Ct. 1409 (2013).

There, in a similar fact pattern to this case, this Court

determined that the police may not, without a warrant,

trespass on a person’s private property, enter the

curtilage of his home, and use a drug-sniffing dog to

search the outside of the home for drugs. Jd. at 1414-

15. After finding that the area searched by the police

and dog was “constitutionally protected,” the Court

considered “whether [the search] was accomplished

through an unlicensed physical intrusion.” Jd. at

1415 (emphasis added). The Court found that

“introducing a trained police dog to explore the area

around the home in hopes of discovering incriminating

evidence” was not part of the customary societal

license accorded to persons coming to the front door of

a home. Id. at 1415-17.

As it had in Jones, the government in Jardines

argued that an “investigation by a forensic narcotics

dog by definition cannot implicate any legitimate

privacy interest.” Jd. at 1417. The Court rejected that

rationale and, relying upon Jones, determined that “we

need not decide whether the officers’ investigation of

Jardines’ home violated his expectation of privacy

under Katz,” since the property law baseline had been

breached by the physical intrusion upon Jardines’

house in violation of the Fourth Amendment. Jardines

at 1417.

Thus, in both Jones and Jardines, this Court

addressed first whether the government intrusions —

involving an automobile in Jones and the curtilage of

12

a home in Jardines — compromised any Fourth

Amendment property right in “persons, houses, papers,

for] effects.” See Jones at 949 and Jardines at 1416.

Yet the Virginia courts failed to address Collins’

claimed rights in the curtilage of his home and in the

belongings in his driveway.

C. The Police Violated Collins’ Fourth

Amendment Property Rights.

The Supreme Court of Virginia majority opinion

describes this case as one which involves “the search of

the motorcycle,” even though the police first removed

a tarp to uncover the motorcycle. 790 S.E.2d at 621.

That is akin to saying a police officer who opens a

briefcase to search the papers inside it has not

searched the briefcase. Writing in dissent, Justice

Mims claimed that “Officer Rhodes did not search an

automobile, he searched a tarp.” Jd. at 26. In reality,

Officer Rhodes searched both the motorcycle and the

tarp — but just as importantly, he also searched the

curtilage of the home — the private property where he

was trespassing.’ The courts below failed to recognize

this reality, even though the Supreme Court of

Virginia admitted that “Collins has consistently

characterized Officer Rhodes’ conduct as an ‘illegal

trespass’....” Id. at 620.

As in Jardines, the property “principle renders this

case a straightforward one.” Jardines at 1414. The

" Had the police had obtained a warrant, it no doubt would have

been a warrant to search Collins’ property for the motorcycle

that had eluded them.

13

officers “were gathering information in an area

belonging to [Collins] and immediately surrounding his

house ... which [this Court has] held enjoys protection

as part of the home itself.* And they gathered that

information by physically entering and occupying the

area to engage in conduct not explicitly or implicitly

permitted by the homeowner.” Jd. As this Court

noted, “A police officer not armed with a warrant may

approach a home and knock, precisely because that is

‘no more than any private citizen might do.” Id. at

1416.

No one disputes that a Fourth Amendment

“search” occurred in this case. As in Jones, “[t]he

Government physically occupied private property for

the purpose of obtaining information.” Jones at 949.

And, as in Jardines, the police trespassed on private

property to snoop around the property, which was

“more than any private citizen might do.”

Furthermore, Jardines concluded that “[t]here is no

customary invitation to do that.” Jardines at 1416

(emphasis added). The only question, then, is whether

the “automobile exception” to the warrant requirement

can be applied — without violating the principles from

Jones and Jardines — to override a person’s property

interest in his “houses and effects.” The answer to that

question is most certainly no.

® Unless the police could demonstrate they had a superior

property interest justifying their presence on the property where

Collins lived, they were no more than common-law trespassers,

poking around someone’s garage.

14

lil. THE COURTS BELOW HAVE MISUSED THE

AUTOMOBILE EXCEPTION TO SWALLOW

UP THE FOURTH AMENDMENT.

A. The Original Purposes of the Automobile

Exception Do Not Apply to this Case.

Nearly a half century ago, the Court described the

automobile exception, like all exceptions to the Fourth

Amendment, as having been “jealously and carefully

drawn.” Coolidge v. New Hampshire, 403 U.S. 443,

455 (1971). The Court asserted that “[t]he word

‘automobile’ is not a talisman in whose presence the

Fourth Amendment fades away and disappears.” Id.

at 461. Unfortunately, the opposite has been the case.

As Justices Souter and Breyer put it, the Court has

“permit[ted] bare convenience to overcome our

established preference for the warrant process....”

Florida v. White, 526 U.S. 559, 573 (1999). These

justices cautioned that “the exceptions have all but

swallowed the general rule.” Jd. at 569. Nearly two

decades later, the probable cause and warrant

requirements have become little more than platitudes

for trial courts — to be recited before being

disregarded. As one commentator put it, “[w]hile the

Court continues to pay lip service to this catechism, its

actions have transformed [the Fourth Amendment's

requirements] into an historic relic....”. L. Katz, “The

Automobile Exception Transformed: The Rise of a

Public Place Exemption to the Warrant Requirement,”

36 CASE W. RES. 375, 376 (1986).

15

What began as a modest waiver of Fourth

Amendment principles in Carroll has now become a

broad abdication of the Court’s responsibility to defend

Americans from arbitrary intrusions by government.

With this case, the Supreme Court of Virginia has

taken the automobile exception where it has not gone

before, holding that the Fourth Amendment’s

requirements do not apply to persons, houses, and

effects wherever a vehicle is located. In this case,

in order to search the actual motorcycle they were

after, the police first trespassed into the curtilage of

Collins’ home, then they lifted his tarp off the

motorcycle, and then they examined the motorcycle,

discovering that it was stolen. They then knocked on

the front door and arrested Collins without a warrant.

See 790 S.E.2d at 614.

A long line of cases has relegated the automobile to

the status of second-class type of property,? unworthy

of protection under the Fourth Amendment. However,

if the opinion of the Supreme Court of Virginia is

permitted to stand, the mere involvement of an

automobile in a criminal investigation will result in

the destruction of all Fourth Amendment protections

— not just for automobiles, but for whatever else may

be in the vicinity.

* Congress may have distinguished between homes and

automobiles in 1925 in the National Prohibition Act. See also

California v. Carney, 471 U.S. 386 (1985). Importantly, the

Fourth Amendment, however, makes no such distinctions. It

protects “persons, houses, papers, and effects” — ii does not single

out any of those categories for greater or lesser protection.

16

Under such a regime, what would stop the police

from entering not only curtilage, but also a garage, to

search a vehicle? Or, many homes are built with

customized living spaces to house rare or expensive

collectible automobiles, and at the other end of the

spectrum, many homes contain living spaces within a

garage. In such situations, what would stop the police

from waltzing right into a home based on the

automobile exception? Indeed, the Supreme Court of

Virginia appears to have specifically rejected the idea

that there are any limits on where the police can

trespass — so long as their search involves an

automobile. The court made clear that its holding was

not based on reduced expectations of privacy, noting

that “[t]he Court focused on the mobile characteristics

rather than the exact location....” [d. at 619. Based on

that understanding, the police literally can go

anywhere that an automobile can be found. They could

enter acarport, they can enter a garage, they can enter

a basement, completely undermining the sanctity of

the home.

The Supreme Court of Virginia justified its opinion

in this case in part on the theory that “[t]he Supreme

Court has never limited the automobile

exception such that it would not apply to vehicles

parked on private property.” Jd. at 619. Of course,

this i a logical fallacy. Lack of disapproval does not

indicate approval. Unfortunately, because this Court

has routinely expanded the automobile exception,

lower courts now apparently believe that the exception

is limitless. As one commentor has put it, “it appears

that Courts are interpreting [this Court’s precedents]

as carte blanche to approve the inclusion of evidence

17

found without a warrant, so long as an automobile was

somehow involved in the crime or violation in

question.” K.H. Chilcoat, “The Automobile Exception

Swallows the Rule: Florida v. White,” 90 J. CRIM. L. &

CRIMINOLOGY, 917, 945 (1999-2000).

B. The “Automobile Exception” Undermines

Jones and Jardines.

Under a “reasonable expectation of privacy”

analysis, persons, houses, papers, and effects are

protected only when judges fee] the government has

gone too far. Under a property rights analysis,

however, property rights are triggered the moment the

police step foot onto the property without a legal right

to do so. To analyze this case only from a privacy

standpoint undermines the property rights baseline

the Court guaranteed in Jones and Jardines. It

undermines the idea that privacy rights can only add

to — but not subtract from — the property rights

baseline.

This Court’s opinion in Jones told us that even a

“technical trespass” is still a Fourth Amendment

violation. In Jardines, the Court determined that such

a search without a warrant was unreasonable. The

Court looked at the license of the country to determine

what sort of license an ordinary citizen had to

approach a private home. The Court then held the

police (with no warrant) to the same standard,

deciding they could do “no more than any private

citizen may do.”

18

After Jones and Jardines, the automobile exception

can no longer be understood as being confined to a

person’s “reasonable expectation of privacy” in his

vehicle. Yet that is the modern foundation of the

automobile exception. At a minimum, this Court

should grant the petition to reevaluate the automobile

exception in light of the property rights principles from

Jones and Jardines. And, because the automobile

exception undermines those principles, the Court

should take this opportunity to reconsider the

automobile exception, ceasing to treat the automobile

as an inferior type of property under the Fourth

Amendment.””

IV. THIS COURT SHOULD GRANT THE

PETITION TO RECONSIDER THE

AUTOMOBILE EXCEPTION.

We are taught that the Fourth Amendment usually

requires the police to have a warrant based upon

probable cause before they conduct a search. See

‘© If the automobile exception cannot be justified based on

privacy, then all that is left is exigency. But that provides no

protection at all. If all that is required to avoid the Fourth

Amendment is allegations of exigency, the police might argue that

they should be permitted te search a home without a warrant.

Indeed, there are far more ways for a person to hide or destroy

evidence in a home than in a car. One could flush drugs down a

toilet, burn bloody clothes, grind the serial number off a gun, or

take a shower to wash off the evidence. While the Court of

Appeals below decided this case based on a general theory of

exigency, the Supreme Court of Virginia recognized that was an

insufficient basis, holding that “this case is more appropriately

resolved under the automobile exception.” Jd. at 616.

19

Coolidge v. N.H., 403 U.S. 443, 444-45 (1971).

Consequently, searches without probable cause and a

warrant traditionally have been considered per se

unreasonable, and thus unconstitutional. See U.S. v.

Ross, 456 U.S. 798, 825 (1982). Indeed, courts seem to

be quite fond of continually reminding us of this

maxim — right before sanctioning a search or a seizure

that occurred without a warrant, and often even

without probable cause. Each time, the waiver is

granted based upon one of several euphemistically

termed “narrowly drawn exceptions” to the warrant

requirement."

The problem is that one of the “exceptions” to the

warrant requirement seem to apply more and more

frequently, and it is a rarity for a court to require the

police to obtain a warrant before they act. Exceptions

to the warrant requirement now apply to police stops

on the street (stop & frisk), or in a car or mobile home

(automobile exception), or during an arrest (search

incident to arrest) — situations where over 90 percent

of involuntary police encounters with the public appear

'' There reportedly are at least six exceptions to the warrant

requirement. Three are well rooted in the common law (a limited

search incident to arrest, the plain view doctrine, and

emergencies/hot pursuit). One arguably does not even involve a

Fourth Amendment search (consent or waiver, whereupon police

become akin to an invitee or licensee). However, two of the

exceptions to the warrant requirement — the “stop and frisk,”

Terry v Ohio, 392 U.S. 1 (1968), and the “automobile exception,”

Carroll v. United States, 267 U.S. 132 (1925) — were created by

this Court, based on little more than the public policy

preference of the justices then on the Court to prevent the

Fourth Amendment from “unreasonably” impeding police work.

20

to occur.’* And in most such cases, the police are not

required to have a warrant, and often not even

probable cause.

A. Exigency Because of Inherent Mobility.

The “automobile exception” was birthed in 1925 in

Carroll v. United States, 267 U.S. 132 (1925). The case

involved the search of a vehicle pursuant to the

National Prohibition Act, which provided for the

warrantless search, seizure, and forfeiture of vehicles

used to transport illegal liquor.”

As justification for the warrantless searches of

automobiles, the Court cited a Congressional report

which claimed that “It would take from the officers the

' According to the Bureau of Justice Statistics, about 63 million

Americans age 16 or older had at least one interaction with the

police in 2011. Obviously, some persons had more than one

encounter, and no doubt many had several or more.

Approximately 49.2 percent of those interactions were classified

as “involuntary contact” with the police, involving either traffic

stops, street stops, arrests, or other involuntary contacts

(presumably some of which occurred inside the home). L.

Langton, Ph.D., and M. Durose,“Police Behavior During Traffic

and Street Stops, 2011,” BJS, September 2013,

Jiwww_ bjs .gov/ not/pub/ :

'S At the same time, Congress prohibited the warrantless search

of a “private dwelling” — even going so far as to make it a crime

punishable by imprisonment for any government agent who

engaged in a warrantless search of such a dwelling. Jd. at 143-44.

Ironically, here the Virginia courts use the automobile exception

to justify a search of the curtilage, which this Court has held is

part of the dwelling, the same as inside the home. See Jardines

at 1414.

21

power that they absolutely must have to be of any

service, for if they can not search for liquor without a

warrant they might as well be discharged.” Jd. at 146

(emphasis added). Thus, the Court found that

Congress intended “to make a distinction between the

necessity” for a search warrant in the searching of

private dwellings and in that of automobiles....” Id. at

147. Similarly, the Court claimed that there was

“necessary difference between a search of a store,

dwelling house or other structure ... and a search of a

ship, motor boat, wagon or automobile ... where it is

not practicable to secure a warrant because the

vehicle can be quickly moved....”. Id. at 153

(emphasis added).

In later cases, the Court would boil down this

“necessity” rationale as stemming from a vehicle's

inherent mobility, claiming that an automobile

“creates circumstances of such exigency that, as a

practical necessity, rigorous enforcement of the

warrant requirement is impossible.” South Dakota v.

Opperman, 428 U.S. 364, 367 (1976) (emphasis added).

'* “(U)seful,’ and ‘necessity’ was always the ‘tyrant’s plea.” C.S.

Lewis, God in the Dock (1970) at 333.

** Of course, times have changed greatly since Carrol] was

decided. In Carroll, the police still were required to have probable

cause to stop a vehicle, where now they need only reasonable

suspicion. And these days, the police are protected by an

incredibly robust form of “qualified immunity,” shielding them

from consequences arising from most abuses of their authority.

22

B. Mobility Without Exigency.

Then, in Chambers v. Maroney, 399 U.S. 42 (1970),

the Court reviewed its prior holdings where “exigent

circumstances” were required to search an automobile.

Id. at 51. In Chambers, there were no exigent

circumstances, because the automobile was being

held in police custody. Jd. at 44. Nevertheless, the

Court declared that because the vehicle was still

mobile, it could be searched without a warrant. Id. at

52. In other words, theoretical mobility — even

without exigency — is enough.

C. No Mobility — So Exigency And Pervasive

Regulation.

Then, in Cady v. Dombrowski, 413 U.S. 433 (1973),

the Court was confronted with the search of a heavily

damaged automobile that had been towed to a service

station. The vehicle was not inherently mobile and,

indeed, was inherently immobile. Jd. at 435-37.

However, the Court nevertheless assumed that there

was still an exigency, since the police suspected the

vehicle to contain a firearm, and alleged a search was

necessary to “protect the public from the possibility

that a revolver would fall into untrained or perhaps

malicious hands.” Jd. at 443, 447.

Having now applied the automobile exception to

cases where there was no exigency, and to cases where

there was no mobility, an entirely new rationale was

created — that automobiles and their drivers are

heavily and pervasively regulated. Jd. at 441.

Writing for the majority, Justice Rehnquist admitted

23

“that this branch of the law is something less than a

seamless web,” id. at 440, admitting that the Court

had now expanded the automobile exception to cases

where none of the original justifications existed. Jd. at

442-43.

D. Reduced Expectations of Privacy.

The Court further tweaked its pervasive regulation

rationale, adding that, because a vehicle is in the

public view, “the expectation of privacy with respect

to one’s automobile is significantly less than that

relating to one’s home or office.” Opperman at 367

(emphasis added).’* Essentially without explanation,

the Court simply asserted that anytime the police are

engaged in “community caretaking functions,” the

Fourth Amendment’s probable cause and warrant

requirements do not apply, and any search the police

conduct is “reasonable.” Jd. at 370.

The Court’s rationale shifts from mobility, to

pervasive regulation, to expectations of privacy freed

it to justify use of the automobile exception “in cases in

which the possibilities of the vehicle’s being removed or

evidence in it destroyed were remote, if not

nonexistent.” Cady at 441-442.

‘6 In Opperman, the Court saw no need to require probable cause,

since the defendant in that case had violated a parking ordinance,

even though it technically was not a crime. There, the Court

permitted a suspicion-less and warrantless “routine inventory

search of an automobile lawfully impounded by police for

violations of municipal parking ordinances.” Jd. at 365.

24

E. In the Face of Heightened Privacy

Interests, Back to Mobility.

In California v. Carney, 471 U.S. 386 (1985), the

police entered and searched a parked mobile home

without a warrant — a location where privacy

interests were heightened. The Court was confronted

with a “hybrid’ which combines ‘the mobility attribute

of an automobile ... with most of the privacy

characteristics of a house.” Jd. at 395.

The Court claimed that “the mobility of a vehicle ‘is

no longer the prime justification for the automobile

exception; rather ‘the answer lies in the diminished

expectation of privacy which surrounds the

automobile.” Jd. at 390. However, shortly after

making this pronouncement, the Court ignored the

obviously heightened privacy aspects of the mobile

home, and swung back to its mobility justification,

claiming that since the vehicle could still be mobile,

that was enough to justify the search.”” Jd. at 393. In

reaching this conclusion, the Court opened the door to

the home, the one place previously thought to be off

limits to warrantless searches (see Carroll at 147 n.5,

supra).

F. Summary.

The automobile exception has been nothing if not

flexible. The Court has used mobility as a justification

'7 See also Pennsylvania v. Labron, 518 U.S. 938 (1996) (finding

that inherent mobility alone is sufficient reason for a warrantless

search of an automobile).

25

when there is no exigency, and used exigency when

there is no mobility. When neither of those

justifications exists, the Court has adopted new

reasons, such as pervasive regulation and reduced

expectations of privacy. Later, the Court relied on

reduced expectations of privacy in cases where there is

no mobility, and used mobility in cases where there

was no reduced expectation of privacy. Thus,

mobility/exigency and pervasive regulation/reduced

privacy expectations appear to have become

independent justifications for the automobile

exception. With so many different independent

justifications, the automobile exception can be (and has

been) employed to sanction searches in a wide variety

of circumstances.

Now, in this case, the government asked the courts

below to go even further -—- and to apply the

automobile exception to justify a search of the curtilage

of the home where the motorcycle was stored, the tarp

that covered it, and even the warrantless arrest of the

person inside the home. The absurdity of that request

should alarm this Court. It is well past time for this

Court to reexamine the automobile exception itself,

and this case provides an excellent vehicle to do so.

26

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

JOSEPH W. MILLER ROBERT J. OLSON*

U.S. Justice Foundation HERBERT W. TITUS

932 D Street, Ste. 2 WILLIAM J. OLSON

Ramona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amicus Curiae WILLIAM J. OLSON, P.C.

U.S. Justice Foundation 370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615

(703) 356-5070

*Counsel of Record wjo@mindspring.com

March 27, 2017 Attorneys for Amici Curiae

APPENDIX

App 1

Amicus Appendix

In the

Supreme Court of Virginia

at Richmond

Record No. 151277

RYAN AUSTIN COLLINS, Appellant,

COMMONWEALTH OF VIRGINIA, Appellee

PETITION FOR REHEARING

CHARLES L. WEBER, JR.

Virginia State Bar. No. 43287

ATTORNEY AT LAW

415 4" Street NE

Charlottesville, VA 22902

T: (4384) 977-4054

F: (434) 977-4235

cweber977@aol.com

Counsel for Appellant

App 2

Petition for Rehearing

Ryan Austin Collins v. Commonwealth of

Virginia

I. The majority opinion erroneously

concluded that Officer Rhodes had

probable cause to believe that the

motorcycle was contraband.

The Supreme Court correctly articulated the test

for applying the automobile exception; namely, “[i]f a

car is readily mobile and probable cause exists to

believe it contains contraband,' the Fourth

Amendment ... permits police to search the vehicle

without more.” Slip. Op. at 11.

The majority stated that probable cause was

based on the fact that “Eric Jones had informed

Officer Rhodes that he sold Collins the motorcycle

with the warning that it was stolen.” Jd. This finding

of fact, framed as occurring prior to Office Rhodes’

search, is unsupported by the record and

inconsistent with Officer Rhodes’ testimony.

Officer Rhodes was evasive about when he

actually spoke to Eric Jones but specifically denied

that Jones was the source of his information linking

Collins to the motorcycle at the time of the search of

the vehicle. At the suppression hearing, the following

exchange took place:

(Counsel): So how far in advance of September

10 did you talk to Eric Jones?

' “Goods that are unlawful to import, export, produce or possess.”

Black's Law Dictionary at 365 (9th ed. 2009)

(Rhodes):

(Counsel):

(Rhodes):

(Counsel):

(Rhodes):

App 3

I don’t recall. It was sometime after

the July 25" date. I just don’t recall

exactly. I don’t remember.

Okay. So it must have been Eric

Jones who told you that he sold the

bike to Mr. Collins?

I was able to develop that

information. Mr. Jones was very

difficult to contact and get a hold of

basically. But I was able to get

that information that Mr.

Collins was supposedly riding

that motorcycle based on an

informant, yes.

Based on an informant. Was that

informant Eric Jones?

No it was not.

(JA 93-94) (emphasis added).

And later:

(Counsel):

(Rhodes):

(J.A.98).

And the motorcycle itself is not, per

se, illegal, it’s not contraband or

anything like that?

No.

Officer Rhodes specifically stated that his

intended purpose of the search related to “the felony

of eluding” - not related to a crime involving stolen

property. J.A.98. Over the course of two hearings

and a trial, Officer Rhodes never testified that he

had any reason to believe the vehicle was stolen

prior to conducting his search.

App 4

Probable cause can “only be measured by

objective facts known to the police officer prior to the

search.” California v. Minjares, 443 U.S. 916, 921

(1979). Any facts Officer Rhodes gathered after the

search of the tarp/motorcycle could not give rise to

probable cause. At the time of the search, Officer

Rhodes had no reason to believe that the motorcycle

was allegedly stolen and probable cause cannot be

built on an unknown allegation. Jd.

Thus, the Supreme Court erroneously concluded

that Officer Rhodes had probable cause to believe

that the motorcycle was contraband. Slip Op. at 11.

Without facts establishing probable cause to

believe the motorcycle was contraband, the

automobile exception cannot be relied upon as

justification for the warrantless search.

Il. The majority opinion erroneously applied

the automobile exception to justify a

warrantless search of the home's curtilage.

A. The Fourth Amendment requires a

sequential analysis.

A case may encompass a series of government

actions. The Fourth Amendment requires

sequentially evaluating those facts to determine

when a search occurred. See, e.g., Arizona v. Hicks,

480 U.S. 321, 324-25 (1987); United States v. Moses,

540 F.3d 263, 272 (4th Cir. 2008). “[T]he basic |

structure of existing Fourth Amendment law rests

on [this] sequential approach.” Orin S. Kerr, The

Mosaic Theory of the Fourth Amendment, 111 MICH.

L. REV. 311, 316 (2012). “[T]o analyze whether

App 5

government action constitutes a Fourth Amendment

search or seizure, courts take a snapshot of the act

and assess it in isolation.” Jd. at 315. For each fact,

this Court must separately determine whether it was

a search under the Fourth Amendment and, if so, if

it was reasonable. United States v. Jefferson, 571 F.

Supp. 2d 696,701 (E.D. Va. 2008); Kerr, 111 MICH. L.

REV. at 316-20.

This sequential analysis applies with full force to

this case. The opinion recognized that this case

implicated two Fourth Amendment searches: (1)

search of the curtilage’ and (2) search of the

* The Commonwealth conceded that a Fourth Amendment search

of the curtilage occurred. COA Comm. Br. at 10-12. The

Commonwealth waived argument to the contrary Rule 5A:21 (d);

see Jeter v. Commonwealth, 44 Va. App. 733, 740-41 (2005).

Collins noted that this issue was thus uncontested. Op. Br. at 11.

The Commonwealth could “not resurrect the issue” abandoned in

the Court of Appeals. Wright v. Commonwealth, 261 Va. 1, 1

(2000).

This case is not a “knock and talk” limited to the path up the

driveway to the front door. Florida v. Jardines, 133 S.Ct. 1409,

1415 n.1 (2013). Officer Rhodes walked “something like” “a car

length or two” up the driveway. JA 90; Slip Op. at 5. To reach the

motorcycle, Officer Rhodes walked past the home’s front

perimeter. JA 68-69,72-74, 124-26; Slip Op. at 22 n.4 (Mims, J.,

dissenting). Officer Rhodes did not approach the front door

because his goal was the motorcycle sitting beyond and

directionally different from the front porch. JA 124, 126. The

motorcycle was a few feet from the home’s sidewall, where a side

porch would sit. JA 126. The motorcycle was enclosed by a

“retaining wall” on one side and the house on the other. JA 69,

126.

Officer Rhodes crossed into this private area immediately

adjacent to the home to investigate. This was a search of curtilage.

Jardines, 133 S.Ct. at 1414-17; United States v. Perea-Rey, 680

App 6

tarp/motorcycle. See Slip Op. at 6-7. So did the Court

of Appeals. Collins v. Commonwealth, 65 Va. App.

37, 622 (2015) (“The first ‘search’ challenged is

Officer Rhodes’s entry onto the property to examine

the motorcycle.”).

This Court did not evaluate the reasonableness

of each Fourth Amendment search separately.

Instead, the opinion collapsed these two searches

into one and answered whether the search of the

tarp/motorcycle was reasonable. Slip Op. at 9-16.

This Court thus upended “the foundation of existing

search and seizure analysis” by disregarding the

requirement to sequentially evaluate these searches.

Kerr, 111 MICH. L. REV. at 316.

B. This Court’s opinion erroneously applied

the automobile exception to justify the

warrantless search of curtilage.

The opinion recognized two different searches: a

search of curtilage, and a search of the

tarp/motorcycle. This Court then undertook a single

reasonableness analysis, relying solely upon the

automobile exception. Consequently, this Court

applied the automobile exception to justify a

warrantless search of curtilage. Counsel has found

no court endorsing such a holding.* The automobile

F.3d 1179, 1188 (9th Cir. 2012) (Fourth Amendment search, not

a “knock and talk,” when officer “bypass[ed] the front door and

walk[ed] around the side of the house into the carport”).

* The Court's reliance on United States v. Brookins, 345 F.3d 231

(4 Cir. 2003) is misplaced because in that case (1) the court found

App 7

exception applies to searches of automobiles—not to

searches of homes or curtilage. Maryland v. Dyson,

527 U.S. 465, 466-67 (1999) (automobile exception

applies to “searches of vehicles”); McClish v. Nugent,

483 F.3d 1231, 1240-41 (11th Cir. 2007) (warrantless

entry into the home excused only by consent or

exigency).

The opinion will be read as applying the

automobile exception to warrantless searches of

curtilage. This is not an unreasonable interpretation,

as the opinion itself recounts the Commonwealth

asserting this argument. Slip Op. at 6-7. In fact, the

Attorney General pressed this argument in the

Court of Appeals. COA Comm. Br. at 11-16. There is

no reason why this argument, now approved by this

Court, will not be used in the future. This

application of the opinion will disrupt the careful

balance between security and freedom struck by the

Fourth Amendment in three significant ways.

First, the opinion can be cited to ignore all

searches in any factual sequence except for the final

search. This results from the majority opinion

disregarding the heightened protections implicated

by the initial search (curtilage), to evaluate only the

reasonableness of the subsequent search

(tarp/motorcycle). See United States v. Martinez-

Fuerte, 428 U.S. 543, 562 (1976) (“expectation[s} of

privacy in an automobile ... are significantly different

from the traditional expectation of privacy ... in one’s

that the police had probable cause to believe the vehicle contained

contraband, and (2) the issue of whether the police searched the

curtilage was neither raised by the parties nor decided by the

court.

App 8

residence”). For example, a court can replicate the

majority opinion’s analytical structure by refusing to

consider the reasonableness of entry into a home, to

evaluate only a subsequent search of a purse or

briefcase found inside the home.

Second, this Court’s opinion can be cited to

ignore Fourth Amendment protections of the home if

probable cause relates to a vehicle. On its face, the

opinion permits entry into or through curtilage—be

it a garage, a carport, or an enclosed side garden—if

probable cause relates to an automobile within, or

accessible beyond, that curtilage.

Curtilage has the same Fourth Amendment

protections as the home. Rogers v. Pendleton, 249

F.3d 279, 287 (4th Cir. 2001). The opinion’s

treatment of curtilage instructs how to handle the

home’s Fourth Amendment protections. For example,

entry into and through a home can be held

reasonable on the basis that it was a direct route to a

vehicle in a back yard. Entry through curtilage to

reach a vehicle is legally indistinguishable from

entry through a home to reach a vehicle.

Third, as the opinion gives blanket authorization

to searches attendant to an automobile search, it

invites more invasive warrantless searches with

modern technology. The majority opinion articulates

no limiting principle to its novel application of the

law. As just one example, the opinion may authorize

the surreptitious mounting of a recording device on

private property if there is probable cause to believe

that a vehicle related to criminality will be

subsequently recorded. Entry onto property and

installation of a device could be held reasonable if

the ultimate search is a video recording of a vehicle.

App 9

III. Conclusion

For the foregoing reasons, the Appellant, Ryan

Austin Collins, respectfully prays that this Court

grant his petition for a rehearing.

RYAN AUSTIN COLLINS

By Counsel

We ask this:

/s/ Charles L. Weber, Jr.

Charles L. Weber, Jr.

VSB #43287

415 4™ Street NE

Charlottesville, VA 22902

(434) 977-4054 (O)

(434) 977-4235 (F)

cweber977@aol.com

Counsel for the Appellant