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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0733%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2017

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0733%3A05. Public record. Not legal advice.