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

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No. 16-1027

In The

Supreme Court of the Anited States

“a

—

RYAN AUSTIN COLLINS,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

On Writ Of Certiorari To The

Supreme Court Of Virginia

BRIEF FOR RESPOND! \T

MARK R. HERRING TREVOR S. Cox

Attorney General Acting Solicitor General

of Virginia Counsel of Record

MATTHEW R. MCGUIRE OFFICE OF THE VIRGINIA

Acting Deputy ATTORNEY GENERAL

Solicitor General 202 North Ninth Street

Richmond, Virginia 23219

CHRISTOPHER P. SCHANDEVEL (804) 786-7704

Assistant Attorney General tcox@oag.state.va.us

December 13, 2017

QUESTION PRESENTED

Whether the Fourth Amendment allows a war-

rantless daytime inspection of a motorcycle’s vehicle

identification number and license plate, when the mo-

torcycle is parked in a private driveway, clearly identi-

fiable under a tarp, adjacent to the steps leading to the

front door of the house, and when the officer has prob-

able cause to believe that the motorcycle is evidence of

multiple crimes and twice has been used to elude po-

lice.

TABLE OF CONTENTS

Page

QUESTION PRESENTED................ccccccecseeeceeeees i

REED GET GRRE ET BOD cscccesecsesseseccsessnescovccosseece ii

TABLE OF AUTHORITIES ......................s0cceseeeees v

TES EE ee 1

STATEMENT OF THE CASE.....................00s00000: 4

SUMMARY OF ARGUMENT .....................:.00000 11

IE ctrncchienatiisicnadstensadipieincisnesiinkanedbniianninns 14

I. The automobile exception to the warrant

requirement applies here .......................... 14

A. The automobile exception is categori-

cal and applies in cases where, as here,

a vehicle is readily mobile and probable

cause exists to believe that a search

will uncover evidence of a crime ......... 14

1. Multiple rationales justify the auto-

mobile exception ..................ccceseeeee 15

2. The automobile exception permitted

the search here because Officer

Rhodes had ample probable cause, be-

fore entering the property, to believe

that Collins’s readily mobile motorcy-

cle was evidence of a crime.................. 18

B. There is no separate exigency require-

ment to the automobile exception—re-

gardless of the vehicle’s location—but

even if there were, it would be satisfied

Il.

ili

TABLE OF CONTENTS—Continued

Page

C. Officer Rhodes did not need a warrant

to walk up the open driveway to reach

a motorcycle that the automobile ex-

ception authorized him to search........ 27

D. Collins’s fears of roving police searches

are not justified: a warrantless auto-

mobile search must be supported by

probable cause, limited in scope, and

PU casceninscenienssecisinccintiitnteaimsadenss 29

The automobile exception and its support-

ing rationales do not automatically dis-

appear inside a home’s curtilage, and it

would undermine the utility of the excep-

tion to restrict its application there.......... 34

A. The Court’s case law demonstrates

that a vehicle’s location inside or out-

side the curtilage does not drive the

i crictentidntsiiitiisiniheiapiatiiaatiatl aaa tas 34

1. Scher and Labron refute Collins’s

TINE wiccccnccetnnsecinlctsisntiinidusiiiasminliaiin 34

2. Carney and Coolidge do not support

Collins’s position.................ccc00e0000e- 38

B. The justifications for the automobile ex-

ception still apply when a vehicle is

parked on a driveway close toa home.... 42

TABLE OF CONTENTS—Continued

Page

C. Police officers need bright-line rules

when they confront inherently exigent

circumstances, so any limitations to

the exception should depend on unam-

biguous physical distinctions, not on

indeterminate curtilage analyses........ 45

1. Requiring case-by-case curtilage de-

terminations would undermine the

utility and purpose of the automo-

i inicintncnensnarnesnmncsenssnenseeee 46

2. The automobile exception should

apply at least up to the threshold of

an enclosed physical structure in

the curtilage—a defined line that is

easy to understand and adequately

protects privacy and property in-

acai it inn in eee teiceanesimnen 49

Ill. If the curtilage determination matters,

the case should be remanded .................... 54

I Diiadininietininciensctensenscdntmescensasscecsrenatsene 56

TABLE OF AUTHORITIES

Page

CASES

Almeida-Sanchez v. United States,

EE eT 13, 30

Arizona v. Hicks,

earn 33

Arkansas v. Sanders,

SS SE ee 47, 48

Cady v. Dombrowski,

el 43

California v. Acevedo,

500 U.S. 565 (1991) ......................... 18, 32, 45, 48, 49

California v. Carney,

ED nciincrcencinenstenestnanioninnenetaiaieal passim

Cardwell v. Lewis,

og 17, 23, 25, 32, 44

Carroll v. United States,

I le passim

Chambers v. Maroney,

ne 24, 26, 32

Coolidge v. New Hampshire,

403 U.S. 443 (1971) .................0c00000 33, 38, 39, 40, 41

Dalia v. United States,

a sdeienlinninetil 27

Dyke v. Taylor Implement Mfg. Co..,

EL Renan 19

Florida v. Jardines,

Ae I iecretiansisscnisciicessiptiptiitrtattesbiiniasinianiin passim

TABLE OF AUTHORITIES—Continued

Page

Gooding v. United States,

EE a ee ee 33

Husty v. United States,

EAS re es 24, 25, 35

Illinois v. McArthur,

TE SE RE a ee ee 14, 15

Katz v. United States,

IETS ELE ere 53

Kyllo v. United States,

TL ee ee A RS 51

Maryland v. Dyson,

SASSER SS aan nea oe 14, 23

Maryland v. King,

ee cetelectiabaeintamiieisiaiienal 31

Michigan v. Thomas,

SECRET RAR aoe pe ea 25

Minnesota v. Carter,

I eieneeiaal 48

Missouri v. McNeely,

I eee 26

New York v. Class,

8 ERE RENE SRE a Sena REND 21, 32

Oliver v. United States,

el oneibeneeineneesieiiits 46, 55

Ornelas v. United States,

yf noe 19

vii

TABLE OF AUTHORITIES—Continued

Page

Payton v. New York,

EE 49, 50

Pennsylvania v. Kilgore ,

677 A.2d 311 (Pa. 1995),

rev'd sub nom. Pennsylvania v. Labron,

I i ictrisremdehnesidnbinannnnesenstinnnd 36, 37

Pennsylvania v. Labron,

IIE cinecctuncisusvissineusminiemamenteniant passim

Riley v. California,

ni dc diemnashalitnanngnsabinnilie 26

Robbins v. California,

I ae cecal 48

Scher v. United States,

305 U.S. 251 (1938) ..................... 3, 29, 34, 35, 36, 39

Silverman v. United States,

| a eee 50

South Dakota v. Opperman,

EDD stieicncnresessescocsnvecnessees 2, 17, 23, 45

Steagald v. United States,

I cain cinsiinieeeatcaiaeanaptnsaunnnntnetiin 26

Texas v. Brown,

I vccinicinssiennepenveniesiensibiceniin 15, 20, 39

United States v. Beene,

i Ee 55

United States v. Blaylock,

535 F.3d 922 (8th Cir. 2008)................c0cccceeeeeeeeeeeeees 38

Vili

TABLE OF AUTHORITIES—Continued

Page

United States v. Brookins,

ee ae es CD I... onsaneucnanonewebncned 38

United States v. Chadwick,

ER a See 48

United States v. Dunn,

ITD wi ccaccrccnaceccsnceroncntanceconss 46, 47, 55

United States v. Goncalves,

ee I I EDD on cccnccncccccencnscseceecsencns 39

United States v. Hatley,

I BD inccccncsccsonneccnscocscnesecseuneses 38

United States v. Hines,

449 F.3d 808 (7th Cir. 2006)...................cccccceeceeeceeee 38

United States v. Jones,

TERR ee er eo 12, 20, 21

United States v. Knights,

TEST EERE RESET RAS Re STE 14

United States v. Markham,

844 F.2d 366 (6th Cir. 1968)......................0....020...2. 38

United States v. Ross,

ITI tincsiccscuiccnanenteescenionsenmamieitiss passim

United States v. Santana,

I eda 50, 51

United States v. U.S. Dist. Court,

EE Te TT 49

Warden, Md. Penitentiary v. Hayden,

ee Be PET stirice ndesidcdeiscidterheieenonscennesensnteteononns 19

TABLE OF AUTHORITIES—Continued

Page

Whren v. United States,

EATERS Ene name 31, 32

Wyoming v. Houghton,

ee IE... csutiseasnnsenninns 17, 34, 44

Zivotofsky v. Clinton,

a o sialeclbsenenatnneall 56

CONSTITUTIONAL PROVISIONS

ee Cn I OT oo commeenibsudbionetilings passim

STATUTES

Va. Code Ann. § 18.2-108(A) (2014)..........0..0...00cccceeee ee g

Va. Code Ann. § 46.2-817(B) (2017)..............20.c0c00ceeeeeee 4

RULES

I tty Ce: Be Gi cisccccciencccneninansetessccessodeseed 34

Bs GR, Be SD ccccccvccccssncsctocstutensscensnt 34

OTHER AUTHORITIES

4 W. Blackstone,

Commentaries on the Laws of England

Rae ES RE ES Ri ncn Pe COE 52,53

Akhil Reed Amar,

Fourth Amendment First Principles,

gf US , ereeee™ 15

TABLE OF AUTHORITIES—Continued

Page

Brief for the United States,

Scher v. United States, 305 U.S. 251 (1938)

(No. 49), 19388 WL 63934 .................cccccceeeeeeeeeeee 35, 36

Brief of Petitioner-Appellant,

Scher v. United States, 305 U.S. 251 (1938)

(No. 49), 1938 WL 639338 .................ccecceeeeeeeeeeeeeeeeees 35

Respondent’s Brief in Opposition,

Pennsylvania v. Kilgore, 518 U.S. 938 (1996)

(No. 95-1691), 1996 WL 33467564....................0000.. 37

US. Dep’t of Justice, Bureau of Justice Statistics,

Police Behavior during Traffic

and Street Stops, 2011

(Sept. 2013 (rev. Oct. 27, 2016)) 2.0.0.0... ccceecce cece eee e ees 47

Wayne R. LaFave,

Search and Seizure:

A Treatise on the Fourth Amendment

(Thomson/West 5th ed.) (Oct. 2017 update) ...... 45, 54

IN THE

SUPREME COURT OF THE UNITED STATES

RYAN AUSTIN COLLINS, PETITIONER,

Vv.

COMMONWEALTH OF VIRGINIA, RESPONDENT.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

BRIEF FOR RESPONDENT

INTRODUCTION

As this Court observed nearly a century ago in

Carroll v. United States, 267 U.S. 132 (1925), a vehicle’s

inherent mobility poses unique challenges for law en-

forcement officers searching for evidence of a crime. A

vehicle “can be quickly moved out of the locality or ju-

risdiction in which the warrant must be sought”—

making it “not practicable to secure a warrant” before

conducting a search. Jd. at 153. As a result, “practically

since the beginning of the Government” the protections

of the Fourth Amendment have been understood in

light of the “necessary difference” between the search

of a vehicle and the search of a “dwelling house” or sim-

ilar “structure.” Id. Accordingly, in Carroll this Court

recognized a categorical exception to the warrant re-

quirement in cases involving vehicle searches: if an

officer has probable cause to believe that a vehicle con-

tains contraband or evidence of a crime, a warrantless

search of the vehicle is “valid.” Jd. at 149.

From the start, the Court regarded its categorical

exception as “a wise one” because it is “easily applied

and understood and is uniform.” Jd. at 159. And alt-

hough the Court has since held that the categorical

rule has multiple justifications—the ready mobility of

automobiles as well as individuals’ reduced expecta-

tions of privacy in them, see South Dakota v. Opper-

man, 428 U.S. 364, 367 (1976)—the rule itself has

remained constant. It is as easy to understand and ap-

ply today as when first adopted:

If a car is readily mobile and probable cause

exists to believe it contains contraband, the

Fourth Amendment thus permits police to

search the vehicle without more.

Pennsylvania v. Labron, 518 U.S. 938, 940

(1996) (per curiam).

The Supreme Court of Virginia properly applied

that rule here, when it upheld a police officer’s war-

rantless search of Collins’s motorcycle—discovered

parked in a driveway and with ready access to the

street—that the officer had undisputed probable cause

to believe had been used to commit multiple felonies

and that had twice escaped pursuing police officers by

taking off at dangerously fast speeds. The officer’s day-

time search of the motorcycle was brief, unintrusive,

and limited in scope. He walked a car length or two

into the driveway to access the motorcycle, lifted up its

cover and—after recording the license-plate number

and Vehicle Identification Number (VIN) on the motor-

cycle’s exterior and determining that the motorcycle

was stolen—replaced the cover. He did only what a

warrant would have permitted him to do. And because

of the automobile exception, he was authorized to do it

before the vehicle could be moved and elude police once

again.

The Fourth Amendment permitted the officer to

make that reasonable search, regardless of whether

the patch of driveway under the motorcycle was inside

or outside the home’s curtilage. In Scher v. United

States, 305 U.S. 251 (1938), this Court long ago recog-

nized that the automobile exception applies inside the

curtilage. And the Court has never said otherwise—

perhaps because the justifications for the exception re-

main just as valid inside the curtilage as outside it. As

the facts of this case well demonstrate, Collins’s pro-

posed “true exigent circumstances” test for automobile

searches inside the curtilage, see Br. for Pet’r at 21, ig-

nores the unique, categorical exigencies posed by vehi-

cles. Such a test would be inconsistent with this

Court’s Fourth Amendment case law. It would trade

the “wise” rule announced in Carroll, “which is easily

applied and understood and is uniform,” 267 U.S. at

159, for one that is inadequate and unworkable.

The Court should affirm.

STATEMENT OF THE CASE

1. On July 25, 2013, Officer David Rhodes was

driving on the highway in his unmarked police cruiser

when an orange-and-black Suzuki motorcycle ap-

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

Pet. App. 66. Rhodes activated his rear radar and

clocked the motorcycle at 100 mph in a posted 55-mph

zone. Pet. App. 67, 69-70. As Rhodes turned on his

emergency lights, the motorcycle flew by him and sped

away.' Pet. App. 67. Rhodes initiated pursuit but gave

up the chase when it became too dangerous, with the

motorcycle reaching speeds exceeding 140 mph. Pet.

App. 66-67, 70-71.

Rhodes managed to jot down the motorcycle’s li-

cense-plate number and his dash camera recorded im-

ages of it. Pet. App. 71, 79. A still photograph of the

motorcycle taken by the dash camera was later admit-

ted into evidence. See Pet. App. 71-72, 79, 116 (photo-

graph).

The orange-and-black motorcycle was “very

unique.” Pet. App. 86; see also Pet. App. 57. It had a

“‘stretched out’ rear wheel, indicating that it had been

modified for drag racing.” Pet. App. 3; see also Pet. App.

34, 57. It also had chrome accents and chrome wheels.

Pet. App. 34, 57. Rhodes explained that “it didn’t look

! Willfully and wantonly disregarding a signal from a law en-

forcement officer in a manner that interferes with or endangers

the operation of the law enforcement vehicle or endangers a per-

son was and is a Class 6 felony in Virginia. Va. Code Ann. § 46.2-

817(B) (2017).

like a conventional motorcycle.” Pet. App. 57. It was

“[njot something you’d normally see driving down the

roadway and not something you can buy from the fac-

tory either. So that’s a customized type motorcycle.”

Pet. App. 57-58.

The license-plate number led Rhodes to Eric

Jones, who revealed that he had sold the motorcycle to

Collins. Pet. App. 78-81; see also JA 57-58. Jones admit-

ted that he knew the motorcycle lacked a title certifi-

cate and was stolen. JA 52-53. Jones also told Rhodes

that he had informed Collins that the motorcycle was

stolen.’ Officer Rhodes drove by the house where he

believed Collins lived with his mother, but Rhodes did

not find Collins there, nor did he find the motorcycle.

Pet. App. 83-84; JA 25.

On September 10, 2013, however, Officer Rhodes

received a break in the case; he heard Collins’s name

mentioned on his police radio in connection with an in-

cident at a branch of the Department of Motor Vehicles.

Pet. App. 54. When Rhodes arrived at the DMV, Collins

already was being interrogated by Officer McCall, who

was investigating Collins as a suspect in a different

motorcycle-eluding incident that had occurred on June

4, 2013; that incident had also involved an orange-and-

black motorcycle with an extended frame. Pet. App. 72-

73; JA 67, 89-90. Collins denied to both officers that he

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

motorcycle was stolen, something he assumed was evident from

the lack of title. But Jones testified that he told Officer Rhodes

that he had informed Collins that the motorcycle was stolen. See

JA 57-58.

owned a motorcycle and denied that he had been in-

volved in any eluding. Pet. App. 58, 73-74.

As Officer McCall questioned Collins, Officer

Rhodes was able to gain access, through another of-

ficer, to Collins’s Facebook page, where Collins had

posted several incriminating pictures. Pet. App. 74-75.

The photographs (see Pet. App. 112-13) depicted a brick

home with a driveway on the left side and a “clearly

visible” orange-and-black motorcycle—resembling the

one that had eluded Rhodes—parked in the driveway

between two other vehicles. See Pet. App. 56-57. As

soon as he saw the Facebook photograph of the motor-

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

had eluded him. Pet. App. 87.

Officer Rhodes used his smartphone to photo-

graph the Facebook pictures and then returned to Col-

lins to question him about them. Pet. App. 54-55, 74.

Collins denied knowing anything about the motorcycle

or the house in the photographs; he claimed he had not

ridden a motorcycle in a few months. Pet. App. 59; JA

76-77. Collins then left the DMV; Rhodes saw him get

into a car with a male driver and a female passenger.

JA 18-19.

Around this time, Officer Rhodes received a tip

that Collins had taken a motorcycle very recently to a

shop to have new tires installed. Pet. App. 62. Rhodes

asked Officer McCall to investigate that lead. Id.

Rhodes also learned from an informant that the

house in Collins’s Facebook pictures was on Dellmead

Lane. Pet. App. 58. Rhodes drove there and quickly

located the property in the photographs. Pet. App. 58-

60. Unbeknown to Rhodes, Collins’s girlfriend lived at

the house on Dellmead Lane; Collins did not live at the

house, but he stayed there several nights a week. Pet.

App. 89-91.

When Rhodes arrived at the Dellmead property, he

observed a motorcycle, partially covered in a white

tarp, parked in the driveway, “plainly” visible from the

street.’ Pet. App. 60. No one appeared to be home. JA

18. The covered motorcycle had the same silhouette as

the stretched-out motorcycle Rhodes was looking for,

and he could also see a chrome wheel that was not fully

covered by the tarp. Pet. App. 60; Pet. App. 77. From

the sidewalk, Rhodes took a photograph (see Pet. App.

114) of the covered motorcycle. Pet. App. 60-61; JA 80.

The motorcycle was “a car length or two” into the drive-

way. Pet. App. 77. It was parked against a retaining

wall, on the left side of the driveway away from the

house, near the steps leading from the driveway to the

front door. See Pet. App. 114. The motorcycle was in the

“exact same location” and “exact same position” de-

picted in the Facebook photographs. Pet. App. 106-07.

Compare Pet. App. 113, with Pet. App. 114.

After photographing the vehicle from the side-

walk, Officer Rhodes walked up the driveway and

pulled back the tarp to read the license plate and VIN

on the motorcycle’s exterior. JA 80. His visual

® Collins believes that it was a “motorcycle cover,” rather

than a “tarp,” covering the motorcycle, see Br. for Pet’r at 5 n.2,

but, consistent with the courts below, this brief refers to it as a

tarp.

inspection confirmed that the motorcycle was the same

one that had been used to escape him on July 25. JA

81; see also Pet. App. 87. Rhodes then ran the VIN and

learned that the motorcycle had been stolen in New

York. Pet. App. 68. The license plate had been changed

from what he had seen on July 25; the new tag was

registered to a Kawasaki motorcycle, not the Suzuki.

Pet. App. 62. Rhodes then photographed the uncovered

motorcycle, see Pet. App. 115, and replaced the tarp,

Pet. App. 89.

Next, Rhodes returned to his vehicle to surveil the

property, anticipating Collins’s imminent arrival. JA

18. A short time later, a car drove by that Rhodes rec-

ognized as the same car that Collins had gotten into

when he left the DMV, but Collins no longer was in it.

JA 18-19.

Rhodes walked up the driveway and knocked on

the front door of the home; Collins appeared at the

door. Pet. App. 64. Collins had changed out of the shorts

and flip-flops he had been wearing at the DMV less

than an hour earlier. Pet. App. 64-65. Now he was

dressed in motorcycle-appropriate attire. Despite that

the temperature outside exceeded 90 degrees, Collins

had donned jeans, a long-sleeved shirt, and Timber-

land-type boots, “the same exact boots that the rider

was wearing” on July 25. JA 83; see also Pet. App. 65,

67.

Collins agreed to speak with Rhodes. He initially

claimed to know nothing about the motorcycle; then he

said it belonged to a friend. Pet. App. 64-65. As Rhodes

questioned Collins, Officer McCall arrived back from

investigating the lead at the shop; he had obtained an

invoice showing that Collins had purchased new tires

for the motorcycle eight days earlier. Pet. App. 63-64;

JA 45-46. Collins then admitted that he had ridden the

motorcycle from his mother’s house to the shop to have

new tires put on. Pet. App. 65. Eventually, upon further

questioning, Collins admitted that he had purchased

the motorcycle from Jones. Pet. App. 68. Officer Rhodes

then placed Collins under arrest for receiving stolen

property. Pet. App. 65-66. In a search incident to arrest,

Rhodes found the key to the motorcycle in Collins’s

pocket. Pet. App. 66.

2. The trial court overruled Collins’s motion to

suppress the evidence of the license plate and VIN that

Rhodes had obtained by looking under the tarp. Pet.

App. 107. Collins went to trial, was convicted of receiv-

ing stolen property,‘ and was sentenced to three years

in prison with all but two months suspended (time al-

ready served). JA 143-45.

Collins appealed the trial court’s decision denying

his suppression motion, and the Virginia Court of Ap-

peals affirmed. Pet. App. 32-33. The Court of Appeals

found the record insufficient to determine whether the

covered motorcycle had been parked within the curti-

lage of the home. Pet. App. 41. Even assuming it was

* See Va. Code Ann. § 18.2-108(A) (2014) (“If any person buys

or receives from another person, or aids in concealing, any stolen

goods or other thing, knowing the same to have been stolen, he

shall be deemed guilty of larceny thereof, and may be proceeded

against, although the principal offender is not convicted.”).

within the curtilage, though, the court found that “nu-

merous exigencies justified both [Rhodes’s] entry onto

the property and his moving the tarp to view the mo-

torcycle and record its identification number.” Jd. In

particular, a reasonable officer could believe that the

motorcycle could easily be moved, particularly in light

of the prior eluding episodes. Pet. App. 41-42. Moreover,

Rhodes knew that Collins was aware that he was being

investigated and that the police had Collins’s own pho-

tographs showing the orange-and-black motorcycle

parked in the driveway. Pet. App. 42. And when Rhodes

located the house, there was a “tarp over the motorcy-

cle, indicating a possible attempt to conceal it.” Jd. Ac-

cordingly, the court found the search lawful and held

that it “need not rely on the automobile exception, for

exigencies existed aside from the inherent mobility of

the motorcycle.” Pet. App. 44 n.4.

The Supreme Court of Virginia affirmed, but on a

different ground. It noted that “the facts necessary to

resolve this case under the automobile exception to the

warrant requirement of the Fourth Amendment were

established in the record before the trial court.” Pet.

App. 26. Noting that this Court “has never limited the

automobile exception such that it would not apply to

vehicles parked on private property,” Pet. App. 20, and

that “there is no reasonable expectation of privacy in a

vehicle parked on private property yet exposed to pub-

lic view,” id., the court concluded that “Officer

Rhodes’|s] search of the motorcycle was justified.” Pet.

App. 26.

One justice dissented. He concluded that Officer

Rhodes needed a warrant before looking under the

tarp. Pet. App. 30-31 (Mims, J., dissenting). Like the

majority, the dissent did “not address the question of

whether the part of the driveway where the motorcycle

was parked ... was curtilage or open field for Fourth

Amendment purposes.” Pet. App. 30 n.4. That did not

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

tarp without a warrant was unconstitutional even if

the area where the motorcycle was parked is consid-

ered to be open field.” Jd.

Collins filed a timely petition for a writ of certio-

rari, which this Court granted on September 28, 2017.

SUMMARY OF ARGUMENT

Under the well-established and long-recognized

automobile exception, “[i]f a car is readily mobile and

probable cause exists to believe it contains contraband,

the Fourth Amendment thus permits police to search

the vehicle without more.” Labron, 518 U.S. at 940.

The Supreme Court of Virginia faithfully applied

that categorical rule here, finding no Fourth Amend-

ment violation in Officer Rhodes’s warrantless search

of the exterior of Collins’s motorcycle to read the li-

cense-plate number and VIN. Every court below found,

and Collins now concedes, that Rhodes had probable

cause to believe that the motorcycle was evidence of a

crime. Rhodes knew that the motorcycle had been used

to elude police, escaping at speeds exceeding 140 mph.

Collins also cannot dispute that Officer Rhodes, having

finally found the motorcycle, could not know when the

motorcycle would disappear again. Officer Rhodes did

know, however, that Collins had just been alerted that

police could locate the motorcycle soon and that Collins

would have a strong motive to move it.

Collins’s sole argument is that the categorical au-

tomobile exception does not apply because of where the

motorcycle was parked on the driveway—a car length

or two from the street but, Collins contends, within the

curtilage of the home. Thus, Collins concludes, Officer

Rhodes was precluded from acting based on the proba-

ble cause that he had developed before the search. Col-

lins claims that Rhodes should have waited to search

the motorcycle until after he had secured a warrant

based on that probable cause.

But this Court has never limited the application of

the automobile exception to particular locations, and

this case does not demand a departure from the cate-

gorical rule. Indeed, these facts illustrate well the jus-

tifications for the automobile exception, and why the

Court should decline Collins’s invitation to abandon

the exception in favor of a case-by-case exigent-circum-

stances test. Collins’s heavy reliance on the Court’s

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

and Florida v. Jardines, 569 U.S. 1 (2013)—addressing

only what constitutes a “search” under the Fourth

Amendment—is misplaced. The Commonwealth con-

cedes that Officer Rhodes searched the motorcycle, so

Jones and Jardines add little to the analysis. Moreover,

as Collins correctly concedes, Officer Rhodes had

“probable cause to believe that the motorcycle was the

one that had eluded him in traffic,” Br. for Pet’r at 5

n.3, and Rhodes formed that reasonable belief before

he ever stepped foot onto the driveway.

Collins’s fear that applying the automobile excep-

tion in this case would allow police officers to “trawl! for

evidence with impunity,” Br. for Pet’r at 34, is unwar-

ranted. “Automobile or no automobile, there must be

probable cause for the search.” Almeida-Sanchez v.

United States, 413 U.S. 266, 269 (1973). And the Fourth

Amendment still requires that the search be reasona-

ble. The permissible “scope of a warrantless search

based on probable cause,” even under the automobile

exception, is further limited by the nature of the prob-

able cause justifying the search. United States v. Ross,

456 U.S. 798, 823 (1982). It “is no narrower—and no

broader—than the scope of a search authorized by a

warrant supported by probable cause.” Jd. at 823. The

minimal search conducted by Officer Rhodes did not

exceed that scope here.

Collins’s proposal to eliminate the automobile ex-

ception’s applicability to any vehicles parked in the

curtilage is unsupported by precedent and inconsistent

with the Court’s reasons for creating the exception in

the first place. Given the reasons for the rule, it would

be better to draw the line at the threshold of the home

or any other enclosed physical structure inside the

home’s curtilage. That boundary comports with Fourth

Amendment principles and fully accounts for the con-

siderations that justify the automobile exception.

The Court should afirm, but if it decides that the

outcome does turn on whether the motorcycle was in-

side the curtilage, it should remand for resolution of

that question.

—

ARGUMENT

I. The automobile exception to the warrant

requirement applies here.

A. The automobile exception is categorical

and applies in cases where, as here, a

vehicle is readily mobile and probable

cause exists to believe that a search will

uncover evidence of a crime.

The central requirement of the Fourth Amend-

ment is that a search must be reasonable. See, e.z.,

United States v. Knights, 534 U.S. 112, 118 (2001) (not-

ing that the “touchstone of the Fourth Amendment is

reasonableness”). Although this Court has held that

the Fourth Amendment “generally requires police to

secure a warrant before conducting a search,” Mary-

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

“[wlhen faced with special law enforcement needs, di-

minished expectations of privacy, minimal intrusions,

or the like, the Court has found that certain general,

or individual, circumstances may render a warrantless

search or seizure reasonable,” Jllinois v. McArthur, 531

U.S. 326, 330 (2001); see also Akhil Reed Amar, Fourth

Amendment First Principles, 107 Harv. L. Rev. 757, 801

(1994) (“The core of the Fourth Amendment, as we

have seen, is neither a warrant nor probable cause, but

reasonableness.”). To that end, the Court has recog-

nized a number of “flexible, common-sense exceptions

to this [warrant] requirement.” Texas v. Brown, 460

U.S. 730, 735 (1983) (plurality opinion) (collecting

cases).

One longstanding exception is the “automobile ex-

ception,” which is simply stated: “lijf a car is readily

mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits po-

lice to search the vehicle without more.” Labron, 518

U.S. at 940; see also McArthur, 531 U.S. at 330 (citing

Labron and identifying the “search of |an] automobile

supported by probable cause” as one set of circum-

stances that “render(s| a warrantless search or seizure

reasonable”). As Collins rightly concedes, “the automo-

bile exception, when it applies, is categorical.” Br. for

Pet’r at 19.

1. Multiple rationales justify the auto-

mobile exception.

First recognized in Carroll in 1925, the automobile

exception is one of the oldest exceptions to the warrant

requirement. As the Court explained there, its origins

date as far back as the Fourth Amendment itself, to a

time when early Congresses had distinguished “as to

the necessity for a search warrant between goods sub-

ject to forfeiture, when concealed in a dwelling house

or similar place, and like goods in course of transpor-

tation and concealed in a movable vessel where they

readily could be put out of reach of a search warrant.”

267 U.S. at 151. Thus, the Court perceived “a necessary

difference between a search” for contraband goods con-

tained inside a building—such as a “store, dwelling

house or other structure,” for “which a proper official

warrant readily may be obtained”—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 out of the locality or jurisdiction

in which the warrant must be sought.” Jd. at 153.

On the basis of this “reason and authority,” the

Court in Carroll set forth what it called the “true rule”:

[I)f the search and seizure without a warrant

are made upon probable cause, that is, upon a

belief, reasonably arising out of circumstances

known to the seizing officer, that an automo-

bile or other vehicle contains that which by

law is subject to seizure and destruction, the

search and seizure are valid.

Id. at 149.

“(Rleady mobility alone was perhaps the original

justification for the vehicle exception,” California v.

Carney, 471 U.S. 386, 391 (1985), but cases after

Carroll established a “further justification,” Labron,

518 U.S. at 940. In addition to mobility, “less rigorous

warrant requirements govern because the expecta-

tion of privacy with respect to one’s automobile is

significantly less than that relating to one’s home or

office.” Opperman, 428 U.S. at 367.

One has a lesser expectation of privacy in a

motor vehicle because its function is transpor-

tation and it seldom serves as one’s residence

or as the repository of personal effects. A car

has little capacity for escaping public scrutiny.

It travels public thoroughfares where both its

occupants and its contents are in plain view.

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

(plurality opinion).

As the Court noted in Carney, “even when en-

closed ‘repository’ areas have been involved,” the Court

has “concluded that the lesser expectations of privacy

warrant application of the exception.” 471 U.S. at 391.

Automobiles also are “subjected to police stop and ex-

amination to enforce ‘pervasive’ governmental controls

‘as an everyday occurrence,’ ... and, finally, are ex-

posed to traffic accidents that may render all their con-

tents open to public scrutiny.” Wyoming v. Houghton,

526 U.S. 295, 303 (1999) (quoting Opperman, 428 U.S.

at 368). “The public is fully aware that it is accorded

less privacy in its automobiles because of this compel-

ling governmental need for regulation.” Carney, 471

US. at 392.

Although the justifications for the automobile ex-

ception have multiplied, what has not changed is its

categorical application. The Court has emphasized

that point from the start, explaining in Carroll that its

rule was not only “in keeping with the requirements of

the Fourth Amendment and the principles of search

and seizure of contraband forfeitable property,” it was

also “a wise one because” of its straightforward appli-

cation. Jd. at 159. “[I|t leaves the rule one which is eas-

ily applied and understood and is uniform.” /d.; see also

California v. Acevedo, 500 U.S. 565, 580 (1991) (“We

therefore interpret Carroll as providing one rule to

govern all automobile searches.”); Ross, 456 U.S. at 807

n.9 (“The rules as applied in particular cases may ap-

pear unsatisfactory. They reflect, however, a reasoned

application of the more general rule... .”).

Nearly a century later, having been applied count-

less times, the rule remains clear: “If a car is readily

mobile and probable cause exists to believe it contains

contraband, the Fourth Amendment thus permits po-

lice to search the vehicle without more.” Labron, 518

U.S. at 940. As shown below, those criteria were clearly

satisfied here, and the rule was properly applied.

2. The automobile exception permitted

the search here because Officer

Rhodes had ample probable cause,

before entering the property, to be-

lieve that Collins’s readily mobile

motorcycle was evidence of a crime.

Collins rightly concedes that Officer Rhodes had

probable cause to believe that the motorcycle parked

on his girlfriend’s driveway was an instrumentality of

the crime of eluding. Br. for Pet’r at 5 n.3. The Supreme

Court of Virginia additionally concluded that Rhodes

had probable cause, based on his investigatory conver-

sations with Eric Jones, to believe that the motorcycle

was contraband connected to the crime of receiving sto-

len property. Pet. App. 15; see also Dyke v. Taylor Im-

plement Mfg. Co., 391 U.S. 216, 221 (1968) (stating that

the automobile exception applies when “the officers

conducting the search have ‘reasonable or probable

cause’ to believe that they will find the instrumentality

of a crime or evidence pertaining to a crime”); Warden,

Md. Penitentiary v. Hayden, 387 U.S. 294, 310 (1967)

(“The Fourth Amendment allows intrusions upon pri-

vacy under these circumstances, and there is no viable

reason to distinguish intrusions to secure ‘mere evi-

dence’ from intrusions to secure fruits, instrumentali-

ties, or contraband.”).

Collins’s concession is appropriate. Given “the

events which occurred leading up to” the search of the

motorcycle, it was clear that the “historical facts,

viewed from the standpoint of an objectively reasona-

ble police officer, amount|ed] . . . to probable cause.” Or-

nelas v. United States, 517 U.S. 690, 696 (1996). When

Rhodes saw the motorcycle in the photograph on Col-

lins’s Facebook page, he was “100% sure” it was the one

used to elude him. Pet. App. 87. And when he then lo-

cated the residence depicted in the photograph, with

the motorcycle still parked in the driveway, Rhodes

recognized the motorcycle’s unusual configuration and

one of its chrome wheels. Although it was partially cov-

ered with a tarp, it was parked in the same position as

the tarpless motorcycle in the photograph and had its

distinctive silhouette.° Pet. App. 60, 77. And just

minutes earlier, Collins had cinched the probable-

cause determination by implausibly denying that he

knew anything about the house and the motorcycle in

the photograph, despite that the photograph was

posted on his Facebook page. Pet. App. 58; JA 76-77.

Collins concedes the existence of probable cause,

but he fails to appreciate its significance to the analy-

sis. That Officer Rhodes possessed probable cause be-

fore he walked up the driveway distinguishes the two

cases on which Collins principally relies. They assess

only the validity of warrantless searches conducted

without probable cause.

United States v. Jones addressed only whether a

search occurred when officers attached a tracking de-

vice to a suspected criminal’s vehicle and monitored its

movements for four weeks. The Court found that to be

a search. 565 U.S. at 404. Although the government ar-

gued in the alternative that any search was justified

® Collins does not distinguish between a search of the motor-

cycle and a search for the motorcycle, see Pet. App. 27 (Mims, J.,

dissenting), and it is clear that the tarp did not prevent the for-

mation of probable cause, see id. (acknowledging that the “shape

and contours of the object were visible through the tarp and sug-

gested [w]hat the object it covered was”). Indeed, “[t)he fact that

[Rhodes] could not see through the opaque fabric of the [tarp] is

all but irrelevant: the distinctive character of the [tarp] itself

spoke volumes as to its contents—particularly to the trained eye

of the officer.” Brown, 460 U.S. at 74 (plurality opinion); see also

Ross, 456 U.S. at 814 n.19 (“[SJome containers . . . by their very

nature cannot support any reasonable expectation of privacy be-

cause their contents can be inferred from their outward appear-

ance.”) (citation and punctuation omitted).

by reasonable suspicion or probable cause, the Court

held that the argument had been forfeited and chose

not to address it. Jd. at 413. Similarly, in Florida v.

Jardines, the Court held that officers’ use of a drug-

sniffing dog on a homeowner’s front porch to investi-

gate the contents of the home constituted a search. 569

U.S. at 11-12. There too, the Court only addressed

whether a search had occurred, not whether the Flor-

ida Supreme Court had correctly concluded that the of-

ficers lacked probable cause to conduct a search. Id. at

Unlike in Jones and Jardines, there is no dispute

in this appeal that a search occurred. It did. Contrary

to Collins’s suggestion, see Br. for Pet’r at 35-36, no one

is arguing that a visitor—be it a Girl Scout, a trick-or-

treater, or a police officer—is “impliedly invited,”

Jardines, 569 U.S. at 9 & n.4, to remove the cover off a

vehicle parked in a private driveway and to inspect its

license-plate and VIN information.*® But neither is it in

®° That does not mean that Rhodes did not have implied li-

cense to stand where he did while searching the motorcycle. (In-

deed, if Rhodes had pulled his police cruiser into the driveway up

to where the motorcycle was parked—something any member of

the public could have done—Rhodes would also have passed right

by the motorcycle on his way to the front door). Assuming Rhodes

did not step off a part of the driveway where he had implied li-

cense to be to access the motorcycle, his removal of the tarp to

inspect the motorcycle’s plate number and VIN could be defended

under New York v. Class, 475 U.S. 106, 114 (1986) (“[I]t is unrea-

sonable to have an expectation of privacy in an object [like a VIN]

required by law to be located in a place ordinarily in plain view

from the exterior of the automobile.”). The Court does not need to

rely on Class here, however, because the conceded existence of

probable cause makes the point superfluous. Even assuming that

dispute that Officer Rhodes had probable cause to con-

duct that limited search. He did. There also is no ques-

tion that probable cause for the search existed before

Rhodes set foot on the driveway, and that the infor-

mation supporting probable cause had been legiti-

mately obtained; no one trespassed with a tracking

device or a drug-sniffing dog to obtain it.

B. There is no separate exigency require-

ment to the automobile exception—re-

gardless of the vehicle’s location—but

even if there were, it would be satisfied

here.

Arguing that the Court should abrogate the auto-

mobile exception within the curtilage, Collins asserts

that “[wlarrants and exigency cover legitimate needs

for searches” there. Br. for Pet’r at 27; see also id. at 28

(“There is no reason to lay the broader, categorical au-

tomobile exception on top of these rules.”). That rea-

soning is deeply flawed.

To begin with, Collins overlooks that the ready

mobility of automobiles creates a categorical “exi-

gency” that justifies a warrantless search if there is

probable cause to believe a vehicle contains contra-

band. See Br. for Pet’r at 28 (“[Plolice already may

search vehicles in the curtilage without a warrant in

the motorcycle was parked on a part of the driveway within the

curtilage, but outside the area where Rhodes had implied license

to be, Rhodes’s ample probable cause entitled him to access the

motorcycle and search its exterior for its license-plate and VIN

information.

the event of exigency.”). The Court’s precedents estab-

lished long ago that “the inherent mobility of automo-

biles creates circumstances of such exigency that, as a

practical necessity, rigorous enforcement of the war-

rant requirement is impossible.” Opperman, 428 U.S.

at 367; see also Carney, 471 U.S. at 392 (“[T]he exigen-

cies attendant to ready mobility justify searches with-

out prior recourse to the authority of a magistrate so

long as the overriding standard of probable cause is

met.”); Cardwell, 417 U.S. at 590 (plurality opinion)

(“An underlying factor in the Carroll-Chambers line of

decisions has been the exigent circumstances that ex-

ist in connection with movable vehicles.”).’

Collins’s claim that moveable vehicles somehow

pose no exigency when parked on a driveway is a

frontal assault on the automobile exception; if accepted

by this Court, it would undermine the applicability of

the automobile exception not just on private property,

but everywhere. That claim finds no support in this

Court’s precedents, which have repeatedly rejected

Collins’s assumption that some additional exigency

is required to trigger the exception. See, e.g., Labron,

518 U.S. at 938-39 (reversing the Pennsylvania Su-

preme Court’s decisions to the contrary). The Court

made that clear in Dyson: “(U|nder our established

’ A vehicle’s characteristic ability to be quickly moved—in-

cluding out of a jurisdiction and the reach of a warrant—obviously

distinguishes it from other forms of contraband. While Collins

may protest that “drugs and human beings” are “equally mobile,”

see Br. for Pet’r at 21, the only way they become “equally mobile”

is if they are placed in a vehicle, at which point they become

properly discoverable in a search supported by probable cause.

precedent, the ‘automobile exception’ has no separate

exigency requirement.” 527 U.S. at 466.

Thus, Officer Rhodes was not required to wait to

act until Collins or someone else moved the motorcycle,

as Collins suggests. See Br. for Pet’r at 27 (suggesting

that instead of conducting an immediate search

Rhodes had “the chance to make plans to engage the

vehicle when it return|[ed] to the street”). As this Court

has noted, “[fJollowing the [motorcycle] until a war-

rant [could] be obtained seems an impractical alterna-

tive since, among other things, the [motorcycle] may be

taken out of the jurisdiction.” Chambers v. Maroney,

399 U.S. 42, 51 n.9 (1970). Indeed, the speed of Collins’s

motorcycle had proved that pursuing it was not just

“impractical” but impossible.

Collins also misses the point of the automobile ex-

ception when he proposes limiting its applicability to

cases where the officer predicts “there is actually no

time for a warrant.” Br. for Pet’r at 28. Collins fails to

appreciate that “the circumstances that furnish prob-

able cause to search a particular auto for particular ar-

ticles are most often unforeseeable,” and “the

opportunity to search is fleeting since a car is readily

movable.” Chambers, 399 U.S. at 50-51. Underlying the

exception is the recognition that law enforcement can-

not know when “the vehicle [will] be quickly moved out

of the locality or jurisdiction in which the warrant

must be sought.” Carroll, 267 U.S. at 153. For instance,

in the early case Husty v. United States, the Court rec-

ognized that “[the officer] could not know when Husty

would come to the car or how soon it would be

removed.” 282 U.S. 694, 701 (1931). “In such circum-

stances,” the Court did “not think the officers should

be required to speculate upon the chances of success-

fully carrying out the search.” Jd.

That the opportunity to search may be fleeting “is

strikingly true” when, as here, “the automobile’s owner

is alerted to police intentions and, as a consequence,

the motivation to remove evidence from official grasp

is heightened.” Cardwell, 417 U.S. at 590 (plurality

opinion). While a warrantless search’s validity does not

“depend upon a reviewing court’s assessment of the

likelihood in each particular case that the [vehicle]

would have been driven away . . . during the period re-

quired for the police to obtain a warrant,” Michigan v.

Thomas, 458 U.S. 259, 261 (1982) (per curiam), here

Rhodes’s opportunity to search did prove fleeting be-

cause Collins had been “alerted to police intentions,”

Cardwell, 417 U.S. at 590 (plurality opinion). Only a

short time after informing police officers that he did

not recognize the photograph of 2304 Dellmead Lane—

or the motorcycle parked in its driveway—Collins pre-

pared “to remove [the] evidence from official grasp,”

id., by returning to the house, changing into motorcy-

cle-riding garb, and slipping the key into his pocket.

Thus, even if it were necessary to show, in retrospect,

that the circumstances actually bore out the inherent

exigency, the search here would be valid.

Finally, Collins seeks support from several cases

for the proposition that the “‘le]xigent circumstances

doctrine is adequate to accommodate legitimate law

enforcement needs,” Br. for Pet’r at 28 (quoting

Steagald v. United States, 451 U.S. 204, 222 (1981); cit-

ing Missouri v. McNeely, 569 U.S. 141, 165 (2013), and

Riley v. California, 134 S. Ct. 2473, 2487 (2014)), but

none of those cases is on point here. Steagald invali-

dated a warrantless search inside a third party’s home

conducted while executing an arrest warrant on a fu-

gitive. But unlike in this case, where Rhodes had only

just located the driveway shown in the Facebook pho-

tographs and had strong reason to believe that Collins

would appear shortly to move the motorcycle, the law

enforcement officers in Steagald “knew the address of

the house to be searched two days in advance.” 451 U.S.

at 222. In McNeely, the Court rejected the idea that the

loss of blood-alcohol-concentration evidence created a

per se exigency, but partly because that evidence “is

lost gradually and relatively predictably.” 569 U.S. at

155. Here, by contrast, the evidence could be lost en-

tirely and suddenly. And in Riley, it was conceded that

“officers could have seized and secured [the defend-

ants’) cell phones to prevent destruction of evidence

while seeking a warrant,” 134 S. Ct. at 2486—some-

thing that Collins does not concede. And that distinc-

tion does not matter when the automobile exception

applies. See Chambers, 399 U.S. at 51 (“[Als in Carroll

and the case before us now, if an effective search is to

be made at any time, either the search must be made

immediately without a warrant or the car itself must

be seized and held without a warrant for whatever pe-

riod is necessary to obtain a warrant for the search.”).

C. Officer Rhodes did not need a warrant

to walk up the open driveway to reach

a motorcycle that the automobile ex-

ception authorized him to search.

Given that probable cause and the automobile ex-

ception excused the need for a warrant to search the

motorcycle, Collins is left to argue that Rhodes needed

a warrant to cross a few feet of open driveway to access

the motorcycle—in other words, that the “physical in-

trusion to search itself requires a warrant.” See Br. for

Pet’r at 13. Collins is mistaken for several reasons.

First, when the automobile exception applies,

“lo)nly the prior approval of the magistrate is waived;

the search otherwise is as the magistrate could author-

ize.” Ross, 456 U.S. at 823. Collins does not deny that a

magistrate would have issued Rhodes a warrant to

search the motorcycle, had he applied for one, and that

the warrant would have authorized him to do exactly

what he did. A second, supplemental warrant to access

the motorcycle would have been unnecessary. See id. at

820-21 (noting that a search “is not limited by the pos-

sibility that separate acts of entry or opening may be

required to complete the search”). Cf Dalia v. United

States, 441 U.S. 238, 257 (1979) (warning against

“pars!ing] too finely the interests protected by the

Fourth Amendment” and noting that “[o]ften in execut-

ing a warrant the police may find it necessary to inter-

fere with privacy rights not explicitly considered by the

judge who issued the warrant”). Given that Rhodes’s

warrantless search was just “as the magistrate could

authorize,” Ross, 456 U.S. at 823, no threshold warrant

was needed to conduct it.

Second, Collins’s novel proposal—that before an

officer can conduct a legitimate warrantless search

within the curtilage, he must obtain a warrant to enter

the curtilage—would thwart not just warrantless au-

tomobile searches but all warrantless searches within

the curtilage. An officer observing the ongoing destruc-

tion of contraband inside the curtilage would be help-

less to intervene, for lack of a magistrate’s permission

to cross into the curtilage to do so. An officer who pulls

over a vehicle onto the side of the road, onto the curti-

lage of a third party’s property, could not approach the

vehicle without first obtaining a warrant. Even a con-

sent-based search of an object or area inside the curti-

lage could be jeopardized if the officer did not obtain

specific consent not only to search that object or area

but also to enter the curtilage first. Such examples

seem unreasonable because they are: by necessary im-

plication, authorization to search an area gives author-

ity to access the area. See id. at 820-21 (“A lawful

search of fixed premises generally extends to the entire

area in which the object of the search may be found.”).

Because Rhodes was f -rmitted to search Collins’s mo-

torcycle, he was permitted to access it in order to

search it.

Third, Rhodes did not need a warrant to cross

the driveway because there was no “search” of that in-

tervening space for Fourth Amendment purposes.

Even assuming he stepped onto a part of the driveway

where guests lacked implied license to be, but see supra

at 21-22 n.6, he still did not “search” the space between

him and the motorcycle because he did not “use/!/ a

physical intrusion to explore details of the home,”

Jardines, 569 U.S. at 11; he simply accessed the object

of a lawful search. See Scher, 305 U.S. at 255 (noting

that where a car passed “into the open garage closely

followed by the observing officer” and was then

searched, “(n|o search was made of the garage”).

Given that he possessed probable cause to search

the motorcycle, Rhodes proceeded exactly as he was en-

titled to under the automobile exception. Although he

could have delayed his brief search to obtain a warrant

to conduct the very same search, that would have re-

quired him to ignore the risk that Collins would return

and move the motorcycle in the interim; and that risk

is the very reason the automobile exception exists.

D. Collins’s fears of roving police searches

are not justified: a warrantless auto-

mobile search must be supported by

probable cause, limited in scope, and

reasonable.

Collins worries that upholding the search here

would authorize “warrantless intrusions into garages

or carports to remove protective covers and rummage

through vehicles.” Br. for Pet’r at 39. His fears of such

intrusions are overblown and, in any event, lie beyond

what the automobile exception permits.

To begin with, whether a search is conducted pur-

suant to a warrant or not, the search must be justified

by probable cause. “(T]he Carrol/ doctrine does not de-

clare a field day for the police in searching automo-

biles. Automobile or no automobile, there must be

probable cause for the search.” Almeida-Sanchez, 413

U.S. at 269 (emphasis added). “[I)n a case showing

probable cause, the Government and its officials are

given the opportunity which they should have, to make

the investigation necessary to trace reasonably sus-

pected contraband goods and to seize them.” Carroll,

267 U.S. at 156.

Collins also ignores that, under the automobile ex-

ception, “[o]nly the prior approval of the magistrate is

waived; the search otherwise is as the magistrate could

authorize.” Ross, 456 U.S. at 823. Thus, Collins’s con-

cern about the potential scope of an automobile search

lies not with the exception’s waiver of the warrant re-

quirement, but instead with the fact that probable

cause permits officers to conduct automobile searches

at all. See Br. for Pet’r at 19 (worrying that “li|f the au-

tomobile exception applies on curtilage, ... then the

police can search a vehicle there (in driveways, parking

patios, carports, or garages) day or night”). But officers

already can conduct searches within the curtilage. In-

deed, the scenarios Collins conjures up are as likely to

transpire with a warrant as without—including his hy-

pothetical that, “[bly timing [a] search correctly,” a

“savvy police officer” could use the search as a “boot-

strap” to peer “within the sanctity of the home.” Jd. at

30. That possibility is equally present when an officer

searching an automobile close to a house has obtained

a warrant for the search.

As it is, police officers may search only those areas

or items that they have probable cause to search: “[t}he

scope of a warrantless search based on probable cause

is no narrower—and no broader—than the scope of a

search authorized by a warrant supported by probable

cause.” Ross, 456 U.S. at 823. This limitation, among

others, prevents police officers from “‘trawl[ing] for ev-

idence,’” see Br. for Pet’r at 34 (quoting Jardines, 569

U.S. at 6), in the ways that Collins fears possible if the

automobile exception is upheld here—e.g., that an of-

ficer could “‘stan[d] on the porch and us[e] . . . binocu-

lars to peer . . . into the home’s furthest corners.’” See

id. (quoting Jardines, 569 U.S. at 12 (Kagan, J., concur-

ring)).

Collins also can take comfort in the requirement

that every search must be reasonable. See, e.g., Mary-

land v. King, 133 S. Ct. 1958, 1970 (2013) (“Even if a

warrant is not required, a search is not beyond Fourth

Amendment scrutiny; for it must be reasonable in its

scope and manner of execution. Urgent government in-

terests are not a license for indiscriminate police be-

havior.”). “[E}very Fourth Amendment case, since it

turns upon a ‘reasonableness’ determination, involves

a balancing of all relevant factors. With rare exceptions

not applicable here, however, the result of that balanc-

ing is not in doubt where the search or seizure is based

upon probable cause.” Whren v. United States, 517 U.S.

806, 817 (1996). Such “rare exceptions” include cases

where searches and seizures are “conducted in an ex-

traordinary manner” that is “unusually harmful to an

individual’s privacy or even physical interests—such

as, for example, seizure by means of deadly force, un-

announced entry into a home, entry into a home with-

out a warrant, or physical penetration of the body.” Jd.

at 818 (internal citations omitted).

By any standard, Rhodes’s search of the motorcy-

cle was not unreasonable. First, the search was ex-

tremely narrow in scope and was conducted to obtain

information in which Collins had no privacy interest

whatsoever—the motorcycle’s VIN and license-plate

number. See Class, 475 U.S. at 114 (holding that a

search of a VIN was reasonable because it is not sub-

ject to reasonable expectation of privacy for Fourth

Amendment purposes). Second, the search was only

minimally invasive, limited as it was to the motorcy-

cle’s exterior. See Cardwell, 417 U.S. at 592 (plurality

opinion) (noting that “where probable cause exists, a

warrantless examination of the exterior of a car is not

unreasonable”). Searching the exterior of a vehicle “in-

trudes far less on individual privacy than does the in-

cursion sanctioned long ago in Carroll.” Acevedo, 500

US. at 576. “If destroying the interior of an automobile

is not unreasonable,” then Rhodes’s search of the mo-

torcycle’s exterior could scarcely be considered unrea-

sonable. Id.

Third, Rhodes’s search was short in duration.

“|Clarrying out an immediate search without a war-

rant,” and completing it quickly, was less burdensome

than the alternative: “seizing and holding [the motor-

cycle] before presenting the probable cause issue to a

magistrate.” Chambers, 399 U.S. at 52. “For constitu-

tional purposes,” this Court has held that there is

“no difference” between those two options—“(|gliven

probable cause to search, either course is reasonable

under the Fourth Amendment,” id.—but Rhodes’s brief

search was clearly the less intrusive approach.

Rhodes’s search avoided interfering with the posses-

sory interest, if any, that Collins had in his stolen mo-

torcycle. Unlike the police officers in Coolidge v. New

Hampshire, 403 U.S. 443 (1971), Rhodes conducted the

search immediately, during the narrow window of time

after he located the motorcycle and before Collins was

able to remove the evidence. Fourth, Rhodes did not

detour from conducting the primary search; he pro-

ceeded directly up the driveway to the motorcycle, and

returned directly back down it. There is no assertion

that he went beyond the scope of a reasonable, war-

rantless search. Cf. Arizona v. Hicks, 480 U.S. 321, 325-

26 (1987) (holding that exigent circumstances may le-

gitimate entry of a dwelling place, but a subsequent

warrantless search is limited by the exigencies that

justified its initiation; absent probable cause, a sepa-

rate search is unconstitutional).

For all these reasons, Rhodes’s search, supported

by probable cause, was reasonable and faithful to the

Fourth Amendment.*®

® In contrast with the “outright dangerous” nighttime

searches Collins imagines, Br. for Pet’r at 20, Rhodes conducted

the search here in the light of day. Although this Court has not

held that the Fourth Amendment prohibits the execution of war-

rants at night, but cf. Gooding v. United States, 416 U.S. 430, 464-

65 (1974) (Marshall, J., dissenting) (noting that such a limitation

“may well be a constitutional imperative”), a warrantless search

conducted at night may be invalidated on other grounds. See, e.g.,

Il. The automobile exception and its support-

ing rationales do not automatically disap-

pear inside a home’s curtilage, and it would

undermine the utility of the exception to re-

strict its application there.

A. The Court’s case law demonstrates that

a vehicle’s location inside or outside the

curtilage does not drive the analysis.

Nothing in the Court’s precedents indicates that

the automobile exception applies outside the curtilage

but not inside it. Indeed, if its application were so cab-

ined, “one would have expected that substantial limi-

tation to be expressed.” Houghton, 526 U.S. at 301.

1. Scher and Labron refute Collins’s

position.

The Court first upheld the search of an automobile

on private property almost eighty years ago. Just thir-

teen years after Carroll, the Court invoked the auto-

mobile exception in Scher, where the police had

followed the defendant’s vehicle onto private property

and into a garage, which was located “a few feet back

of his residence and within the curtilage.” 305 US. at

253 (emphasis added). Police searched the vehicle, dis-

covered contraband liquor, and arrested Scher.

Fed. R. Crim. P. 41(e2Aii) (requiring execution of a warrant

“during the daytime, unless the judge for good cause expressly au-

thorizes execution at another time”); Fed. R. Crim. P. 41(a2\B)

(“‘Daytime’ means the hours between 6:00 a.m. and 10:00 p.m.

according to local time.”).

Scher urged the Court to limit the scope of the au-

tomobile exception to the facts of Carroll, arguing that

it was “not a case where an automobile is stopped and

searched on the highway. It is a case where private

premises were invaded, and in the process of this inva-

sion, an automobile is searched, in the garage, and

within the curtilage of the private premises.” Br. of

Pet’r-Appellant, Scher v. United States, 1938 WL

63933, at *19-20; see also Br. for the United States,

Scher v. United States, 1938 WL 63934, at *15 (“[Scher]

also contends that the search of the automobile consti-

tuted a search of the garage and that, since the garage

was within the curtilage of his home, it could not be

searched without a warrant. We submit that the con-

tentions are without merit.”).

But this Court rejected Scher’s construction of

Carroll and the idea that the automobile exception

does not apply on curtilage:

Considering the doctrine of Carroll v. United

States, 267 U.S. 132 (see Husty v. United

States, 282 U.S. 694), and the application of

this to the facts there disclosed, it seems plain

enough that just before he entered the garage

the following officers properly could have

stopped petitioner’s car, made search and put

him under arrest. So much was not seriously

controverted at the argument.

Scher, 305 U.S. at 254-55.

Collins dismisses Scher as irrelevant because the

government also defended the search as one that was

conducted incident to an arrest, Br. for Pet’r at 29, but

that flies in the face of this Court’s own treatment of

Scher as an automobile-exception case. See, e.g., Ross,

456 U.S. at 809 & n.11 (citing Scher to show that “the

exception to the warrant requirement established in

Carroll . . . applies only to searches of vehicles that are

supported by probable cause”); id. at 818 (citing Scher

to show that “ijn its application of Carroll, this Court

in fact has sustained warrantless searches of contain-

ers found during a lawful search of an automobile”).

Moreover, the search-incident-to-arrest compo-

nent of the case does not explain the Court’s observa-

tion that officers properly could have searched Scher’s

car “just before he entered the garage.” Scher, 305 U.S.

at 254-55. Indeed, the Court’s citation to Carroll in

support of that proposition validated then-Solicitor

General Robert Jackson’s contention for the govern-

ment that “the prohibition against search of a dwelling

without a warrant does not include searches of vehicles

made upon probable cause. ... Had they stopped the

car and searched it prior to its being driven into the

garage, no search warrant would have been requisite

since they had probable cause.” Br. for the United

States, Scher, 1938 WL 63934, at *16. Thus, even from

the early days of the automobile exception, it has been

applied within the curtilage.

The Court also applied the exception on private

property in Labron, which resolved two cases on the

certiorari filings. In one of them, a truck “parked at the

rear of |a] residence” had been searched “(without a

warrant or Appellant’s consent.” Pennsylvania v. Kil-

gore, 677 A.2d 311, 312 (Pa. 1995), rev’d sub nom.

Pennsylvania v. Labron, 518 U.S. 938 (1996) (per cu-

riam). Although the Pennsylvania Supreme Court con-

cluded that probable cause existed to search the truck,

it found the search was not justified because of the ab-

sence of “any exigent circumstances which would jus-

tify the failure of police to obtain a search warrant

prior to searching the vehicle.” Jd. at 313. In opposing

Pennsylvania’s petition for certiorari, Kilgore noted

that the “pickup truck in question was parked in a pri-

vate driveway”; argued that the automobile exception

does not apply where “the vehicle is on private land

under police control”; and protested that Pennsylvania

was “attempting to make the automobile exception ap-

ply to all automobiles, per se, regardless of circum-

stances.” Resp’t’s Br. in Opp’n, Pennsylvania v. Kilgore,

1996 WL 33467564, at *1, *2, *5.

This Court reversed. Although it acknowledged

that Kilgore’s truck had been “parked in the driveway

of the farmhouse,” 518 U.S. at 939, that fact did not im-

pact its analysis. Rather, the Court laid down a broad

articulation of the automobile exception: “[ijf a car is

readily mobile and probable cause exists to believe it

contains contraband, the Fourth Amendment .. . per-

mits police to search the vehicle without more.”

Labron, 518 U.S. at 940; see also id. at 944 (Stevens, J.,

dissenting, joined by Ginsburg, J.) (noting that “this

Court has effectively converted the ‘automobile excep-

tion’ into an absolute rule allowing searches in the

presence of probable cause”).

Given the Court’s categorical treatment of the au-

tomobile exception, it is not surprising that most

courts of appeals that have addressed the issue have

also found that the exception applies within the curti-

lage.®

2. Carney and Coolidge do not support

Collins’s position.

Contrary to Collins’s assertion, see Br. for Pet’r at

16-18, neither Carney nor Coolidge bars the applica-

tion of the automobile exception within the curtilage.

In Coolidge, police seized the car of a suspected mur-

derer from his driveway three days after he had been

arrested; it was “retained in police custody for more

than a year and was searched not only immediately af-

ter seizure but also on two other occasions: one of them

11 months and the other 14 months after seizure.” 403

US. at 523 (White, J., dissenting, joined by Burger,

C.J.). Although the police had first obtained a warrant,

the warrant was ruled invalid, and the Court had to

assess whether a warrantless search could be justified

under the search-incident-to-arrest doctrine, under the

automobile exception, or under the plain-view doc-

trine. 403 U.S. at 453-73. In Part II-B of the opinion,

authored by Justice Stewart, a plurality of the Court

concluded that the automobile exception did not apply.

Id. at 463-64. Collins attributes that result to the

® See United States v. Brookins, 345 F.3d 231, 237-38 (4th Cir.

2003); United States v. Markham, 844 F.2d 366, 368-69 (6th Cir.

1988); United States v. Hines, 449 F.3d 808, 814-15 (7th Cir. 2006);

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

United States v. Hatley, 15 F.3d 856, 858-59 (9th Cir. 1994).

vehicle’s location in the driveway, which he claims “was

critical.” Br. for Pet’r at 17.

But Collins puts unwarranted emphasis on the

driveway in Coolidge. To begin with, the plurality opin-

ion there is “not a binding precedent.” Brown, 460 U.S.

at 737. Four dissenting Justices would have applied

the automobile exception. Coolidge, 403 U.S. at 504

(Black, J., dissenting in part, joined by Burger, C.J., and

Blackmun, J.); id. at 521-22 (White, J., dissenting in

part, joined by Burger, C.J.). Although Justice Harlan’s

concurrence provided the fifth vote, he specifically de-

clined to join Part II-B and said nothing about the sig-

nificance of the driveway in his concurring opinion. /d.

at 491 (Harlan, J., concurring). To date, “no circuit ap-

pears to read Coolidge as a per se rule against all

driveway searches without a warrant.” United States

v. Goncalves, 642 F.3d 245, 251 (1st Cir. 2011). Indeed,

doing so would require this Court to overrule Scher.

In any event, the Coolidge plurality made clear

that it was the absence of “exigent circumstances” that

dictated the outcome. 403 U.S. at 464 (“Here there was

probable cause, but no exigent circumstances justified

the police in proceeding without a warrant.”); id. at 460

(“The opportunity for search was ... hardly ‘fleet-

ing.’”). The plurality declined to apply the exception

because it was not a “case where ‘it is not practicable

to secure a warrant,” id. at 462 (quoting Carroll, 267

U.S. at 153)—an easy conclusion, given that the police

had, in fact, obtained a warrant (albeit an invalid one).

The plurality also refused to find any exigency in the

fact that the “automobile was in a literal sense

‘mobile.’” Jd. at 461 n.18 (“A person who had the keys

and could slip by the guard could drive it away. We at-

tach no constitutional significance to this sort of mobil-

ity.”). Thus, the plurality’s reference to the car as “an

unoccupied, parked vehicle not then being used for any

illegal purpose,” id. at 463 n.20, must be read in light

of its conclusion that no exigency was present.'°

Moreover, the plurality’s determination that no

exigency justified a search of the car in the driveway

turned on the fact that the objects the police were

searching for “were neither stolen nor contraband nor

dangerous.” Id. at 460. The automobile exception did

not apply, the plurality reasoned, because “there is

nothing in this case to invoke the meaning and purpose

of the rule’—including “no alerted criminal bent on

flight,” “no contraband or stolen goods or weapons,”

and “no confederates waiting to move the evidence.” Jd.

at 462.

In contrast to Coolidge, the presence of those fac-

tors here more than justified Rhodes’s immediate

search. There was ample probable cause to believe that

the motorcycle was an instrumentality that had been

used to commit multiple crimes, and a reasonable of-

ficer could have believed that Collins, having just been

alerted to Rhodes’s interest in the motorcycle, would

immediately try to move it. See supra Part I.A.2. Un-

like the police’s three-day delay in searching the car in

” As set forth above, supra Part I.B, the Court’s decisions

since Coolidge have rejected the view that some further exigency,

in addition to an automobile’s inherent exigency, is necessary.

Coolidge, Rhodes drove to the Dellmead property im-

mediately after he learned of the motorcycle’s probable

presence there.

Collins also misreads Carney to preclude the

search of a vehicle parked “up a private driveway,” Br.

for Pet’r at 18, reasoning that Carney involved a park-

ing lot.’ He says that conclusion follows from the

Court’s observation that the exception applies when a

vehicle “is readily capable of . . . use [on the highways]

and is found stationary in a place not regularly used

for residential purposes.” See id. (quoting Carney, 471

U.S. at 392-93). When read in context, however, it is

clear that the Court employed the phrase “regularly

used for residential purposes” merely to distinguish a

motor home being used for transportation from one be-

ing used solely as a residence. See Carney, 471 U.S. at

393 (“[T]he vehicle was so situated that an objective

observer would conclude that it was being used not as

a residence, but as a vehicle.”); id. at 394 (declining to

define when a vehicle is “situated such that it is rea-

sonable to conclude that the vehicle is not being used

as a residence”); id. (“The exception has historically

turned on the ready mobility of the vehicle, and on the

presence of the vehicle in a setting that objectively in-

dicates that the vehicle is being used for transporta-

tion.”).

" As the Virginia Supreme Court pointed out, the Court’s

opinion in Carney did not indicate whether the parking lot there

“was a public facility or a privately owned lot.” Pet. App. 20 n.9.

The Court in Carney left open that the outcome

might be differeni for “a motor home that is situated in

a way or place that objectively indicates that it is being

used as a residence,” such as if it were “elevated on

blocks” or “connected to utilities,” contrasting those cir-

cumstances with a motor home that had “convenient

access to a public road.” Jd. at 394 n.3. Here, by con-

trast, there is no question that the location of Collins’s

motorcycle—parked on the driveway with “convenient

access to a public road” after it had been used in two

high-speed eluding incidents, id.—“objectively indi-

cate[d] that the vehicle [was] being used for transpor-

tation,” id. at 394.

Thus, nothing in Carney—which permitted the

search of a home that was being used for transporta-

tion—prohibits the search of a motorcycle that clearly

was being used solely for transportation.

B. The justifications for the automobile

exception still apply when a vehicle is

parked on a driveway close to a home.

Collins is also mistaken when he asserts that the

justifications for the automobile exception evaporate

when a vehicle’s location on the driveway is inside the

curtilage, rather than outside the curtilage. Br. for

Pet’r at 19-27. The considerations animating the auto-

mobile exception—ready mobility and reduced privacy

expectations—apply fully to Collins’s motorcycle in the

location where it was parked, in a driveway with im-

mediate access to the road.

First, the original rationale for the automobile

exception—the capacity of a vehicle to be “quickly

moved,” Carroll, 267 U.S. at 153—remains true of

vehicles parked in driveways with ready access to

the road. It is not necessary that a vehicle actually

be found in “use[{] on the highways” if “it is readily

capable of such use.” Carney, 471 U.S. at 392. Were

the rule otherwise, immobile vehicles would not be

subject to the exception. See Cady v. Dombrowski, 413

U.S. 433, 441 (1973) (observing that warrantless auto-

mobile searches “have been sustained in cases in which

the possibilities of the vehicle’s being removed . . . were

remote, if not nonexistent”). Even a parked “vehicle is

obviously readily mobile by the turn of an ignition key,

if not actually moving.” Carney, 471 U.S. at 392. That

critical characteristic is equally true of vehicles parked

in driveways, and it creates an exigency that justifies

immediate intervention.

Here, there is no doubt that Collins’s motorcycle

was readily mobile and therefore easily could have

been “put out of reach of a search warrant.” Carroll,

267 U.S. at 151. It had twice been used to elude police,

once at speeds exceeding 140 mph, and since then Col-

lins had installed fresh tires. Pet. App. 62, 65. Parked

only a car length or two into the driveway, with “con-

venient access to a public road,” Carney, 471 U.S. at

394 n.3, the motorcycle could be kicked into gear in sec-

onds. Whether the motorcycle was a few feet inside the

curtilage or a few feet outside it does not change that

it could be very “quickly moved out of the locality or

jurisdiction in which the warrant must be sought,”

Carroll, 267 U.S. at 153, or from the location particu-

larly described in a warrant.

Second, the “further justification” for the automo-

bile exception—the “reduced expectation of privacy in

an automobile,” Labron, 518 U.S. at 940—likewise does

not turn on precisely how far up a driveway a vehicle

is parked. Collins argues that some vehicle regulations

apply only when the vehicle is driven on public road-

ways, and he appears to suggest that a search of a ve-

hicle that has never left private property could draw

no support from that justification. Br. for Pet’r at 22-

23. But the Court has made clear that the reduced ex-

pectation of privacy derives “from the pervasive regu-

lation of vehicles capable of traveling on the public

highways.” Carney, 471 U.S. at 392 (emphasis added).

Indeed, just as a vehicle’s VIN and license plate—two

obvious markers of “pervasive regulation,” Labron, 518

US. at 940—do not vanish once a vehicle is moved in-

side the curtilage, neither does the justification for the

automobile exception.

Moreover, “lo]ne has a lesser expectation of pri-

vacy in a motor vehicle because its function is trans-

portation” and it “travels public thoroughfares.”

Cardwell, 417 U.S. at 590 (plurality). Here, it was the

motorcycle’s alarming travel on “public thoroughfares”

that sparked law enforcement’s attention in the first

place. See Houghton, 526 U.S. at 303 (automobiles may

be “subjected to police stop and examination to enforce

‘pervasive’ governmental controls ‘as an everyday

occurrence’”) (quoting Opperman, 428 U.S. at 368).

That the motorcycle managed to escape law enforce-

ment’s grasp in the eluding incidents and return to pri-

vate property does not render it any less subject to

regulation or the enforcement of traffic laws.

An individual’s expectation of privacy in a vehicle

is reduced even further when the vehicle, as in this

case, is plainly visible from the street and parked on a

driveway that is part of the normal route used by mem-

bers of the public to access the home. “Given the fact

that police may enter upon such commonly-used areas

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

mate investigation, it would seem that a warrantless

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

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

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

the Fourth Amendment § 7.3(a) (Thomson/West 5th

ed.) (Oct. 2017 update).

C. Police officers need bright-line rules

when they confront inherently exigent

circumstances, so any limitations to

the exception should depend on unam-

biguous physical distinctions, not on

indeterminate curtilage analyses.

This Court has long “noted the virtue of providing

clear and unequivocal guidelines to the law enforce-

ment profession.” Acevedo, 500 U.S. at 577 (punctua-

tion and citations omitted). From its first recognition

of the automobile exception in Carroll, the Court has

realized the importance of a rule that “is easily applied

and understood and is uniform.” 267 U.S. at 159. Col-

lins’s proposal to make the automobile exception inap-

plicable within the curtilage—on some parts of a

driveway but not others—would undermine that salu-

tary goal. Although the result below fits comfortably

within the Court’s precedent, if the Court sees the need

to limit the scope of the automobile exception on pri-

vate property, the proper line to draw would be at the

physical threshold of a house or a similar fixed, en-

closed structure inside the curtilage like a garage.

1. Requiring case-by-case curtilage de-

terminations would undermine the

utility and purpose of the automo-

bile exception.

Under Collins’s view, before conducting a warrant-

less automobile search on private property, police offic-

ers with probable cause to conduct the search would

first need to determine whether the automobile is lo-

cated within the curtilage. Thus, if “the boundaries of

the curtilage are [not] ‘clearly marked,” Jardines, 569

US. at 7 (quoting Oliver v. United States, 466 U.S. 170,

182 (1984)), as here, police officers presumably would

be forced to analyze the factors set forth in United

States v. Dunn, 480 U.S. 294 (1987), before searching a

readily mobile automobile parked close to a home:

[C]urtilage questions should be resolved with

particular reference to four factors: [1] the

proximity of the area claimed to be curtilage

to the home, [2] whether the area is included

within an enclosure surrounding the home,

[3] the nature of the uses to which the area is

put, and [4] the steps taken by the resident to

protect the area from observation by people

passing by.

Id. at 301.

But the Dunn Court itself admitted that these fac-

tors do not yield straightforward answers: “We do not

suggest that combining these factors produces a finely

tuned formula that, when mechanically applied, yields

a ‘correct’ answer to all extent-of-curtilage questions.

Rather, these factors are useful analytical tools.” Id.

Requiring officers to make a multi-factor curtilage

determination—and then undertake a separate exi-

gency analysis if the curtilage analysis yields a conclu-

sion that the vehicle is parked inside it—raises the

potential for confusion and “heightened possibilities

for error.” Sanders, 442 U.S. at 771-72 (Blackmun, J.,

dissenting). Complicating the automobile exception in

this manner “will mean that many convictions will be

overturned ... and guilty persons will be set free in

return for little apparent gain.” Jd. Police officers con-

duct hundreds of thousands of involuntary searches of

vehicles and their drivers each year.’* Assuming even

a small fraction of those searches are conducted on

private property, the impact of a rule with unclear ap-

plication could be far-reaching, throwing into doubt

2 See U.S. Dep’t of Justice, Bureau of Justice Statistics, Po-

lice Behavior during Traffic and Street Stops, 2011 (Sept. 2013

(rev. Oct. 27, 2016)) at 2, 10, https://Awww.bjs.gov/content/pub/pdf/

pbtss11.pdf.

searches of vehicles on shared driveways or near multi-

resident homes or where curtilage boundaries are not

obvious.”

This Court’s struggle to formulate a workable

“container rule” to govern searches of containers found

inside vehicles—distinct from searches of the vehicles

themselves under the automobile exception—illus-

trates the importance, “not only for the Court as an in-

stitution, but also for law enforcement officials and

defendants, that the applicable legal rules be clearly

established.” Ross, 456 U.S. at 825. The Court’s deci-

sions in United States v. Chadwick, 433 U.S. 1 (1977),

Arkansas v. Sanders, 442 U.S. 753 (1979), and Robbins

v. California, 453 U.S. 420 (1981), resulted in a “trou-

bled” jurisprudence around vehicle searches. Ross, 456

U.S. at 817; see also Acevedo, 500 U.S. at 577 (recogniz-

ing the Chadwick-Sanders rule as “the antithesis of a

clear and unequivocal guideline” (punctuation al-

tered)). Those difficulties were resolved only by con-

forming the scope of warrantless vehicle searches to

Carroll’s categorical rule. Thus, the Court announced

in Acevedo that it would “interpret Carroll as providing

‘8 Further complicating the issue is Collins’s point that an

“‘overnight guest in a home may claim the protection of the

Fourth Amendment.’” Br. for Pet’r at 4 n.1 (quoting Minnesota v.

Carter, 525 U.S. 83, 90 (1998)). Assuming that confers standing to

exclude an officer not only from searching the home itself but also

from walking up the driveway to the home, a guest’s privacy in-

terests may not be obvious—especially where, as here, the guest

expressly disclaims any knowledge of the house or the vehicle.

Pet. App. 59; JA 76-77.

one rule to govern all automobile searches.” 500 U.S. at

580.

Rather than forcing police officers to conduct case-

by-case curtilage and exigency determinations, the

Court should retain a categorical rule that can be eas-

ily and consistently applied by police officers respond-

ing to the inherent exigencies posed by readily mobile

automobiles.

2. The automobile exception should ap-

ply at least up to the threshold of an

enclosed physical structure in the

curtilage—a defined line that is easy

to understand and adequately pro-

tects privacy and property interests.

To the extent the Court sees the need to articulate

a limit to the scope of the automobile exception on pri-

vate property—even though no such limit is required

to resolve this case—the more sensible bright line

would be at the physical threshold of a house or a sim-

ilar fixed, enclosed structure like a garage. Prohibiting

intrusion into an enclosed physical structure within a

home’s curtilage to conduct a warrantless automobile

search would accord with existing Fourth Amendment

case law.

The “‘physical entry of the home is the chief evil

against which the wording of the Fourth Amendment

is directed.’” Payton v. New York, 445 U.S. 573, 585

(1980) (quoting United States v. U.S. Dist. Court, 407

U.S. 297, 313 (1972)). As Collins points out, Br. for Pet’r

at 10-11, it is inside the home that privacy interests

are at their peak. In no setting “is the zone of privacy

more clearly defined than when bounded by the unam-

biguous physical dimensions of an individual’s home.”

Payton, 445 U.S. at 589 (emphasis added); see also Sil-

verman v. United States, 365 U.S. 505, 511 (1961) (“At

the very core lof the Fourth Amendment] stands the

right of a man to retreat into his own home and there

be free from unreasonable governmental intrusion.”).

In Payton, for instance, the Court found that the

Fourth Amendment prohibits a warrantless entry into

a suspect’s home to make a routine felony arrest. 445

U.S. at 576. The Court reasoned that, “[i]n terms that

apply equally to seizures of property and to seizures of

persons, the Fourth Amendment has drawn a firm line

at the entrance to the house. Absent exigent circum-

stances, that threshold may not reasonably be crossed

without a warrant.” Jd. at 590 (emphasis added).

Outside the “entrance to the house” is a different

matter. In United States v. Santana, for example, this

Court upheld the arrest of a suspect who had retreated

from the “doorway of [her] house” back into the “vesti-

bule.” 427 U.S. 38, 41 (1976). The Court held that

[while it may be true that under the common

law of property the threshold of one’s dwelling

is “private,” as is the yard surrounding the

house, it is nonetheless clear that under the

cases interpreting the Fourth Amendment

Santana was in a “public” place. She was not

in an area where she had any expectation of

privacy.... Thus, when the police, who

concededly had probable cause to do so,

sought to arrest her, they merely intended to

perform a function which we have approved in

[United States v.| Watson|, 423 US. 411

(1976).

Id. at 42.

Drawing the line at the threshold of physical

structures located inside the curtilage also would be

more consistent with the privacy concerns that moti-

vated this Court’s decisions in Kyllo v. United States,

533 U.S. 27 (2001), and Jardines. In Kyllo, the Court

noted that “the Fourth Amendment draws ‘a firm line

at the entrance to the house.’” 533 U.S. at 40 (quoting

Payton, 445 U.S. at 590). The Court added that the “line

... must be not only firm but also bright.” Jd. So the

Court concluded that the use of “a device that is not in

general public use, to explore details of the home that

would previously have been unknowable without phys-

ical intrusion,” constitutes a “search” under the Fourth

Amendment. Jd. (emphasis added).

Likewise in Jardines, this Court worried that the

“right to retreat” into one’s home “would be signifi-

cantly diminished if the police could enter a man’s

property to observe his repose from just outside the

front window.” 569 U.S. at 6. The concurring Justices

noted similarly that the officers had used “trained ca-

nine assistants to reveal within the confines of a home

what they could not otherwise have found there.” Jd. at

13 (Kagan, J., concurring, joined by Ginsburg and

Sotomayor, JJ.) (emphasis added). Citing Kyllo’s “in-

tention to draw both a ‘firm’ and a ‘bright’ line at ‘the

entrance to the house,” the concurrence concluded

that the officers had “conducted a search because they

used a ‘device . . . not in general public use’ (a trained

drug-detection dog) to ‘explore details of the home’ (the

presence of certain substances) that they would not

otherwise have discovered without entering the prem-

ises.” Id. at 14-15 (emphasis added).

Collins’s “right to retreat” into his girlfriend’s

home was not “significantly diminished” by Officer

Rhodes’s search of the motorcycle parked on the drive-

way. Id. at 6. And that search did not allow Rhodes to

“explore details of the home that would previously

have been unknowable without physical intrusion.”

Kyllo, 533 U.S. at 40. Accordingly, the Court can affirm

the constitutionality of Rhodes’s search while main-

taining the “firm” and “bright” line that the Court has

drawn “at the entrance to the house.” Jd.

The passages of Blackstone’s Commentaries that

Collins relies on—discussing the common-law crime of

burglary—also support distinguishing warrantless

searches inside fixed, physical structures from

searches conducted outside of them. See Br. for Pet’r at

10-12 (citing 4 W. Blackstone, Commentaries on the

Laws of England 223, 225 (1769 ed.)). Blackstone

wrote that “the law regards thus highly nothing but

permanent edifices”; so burglary could be committed in

a “mansion or dwelling house,” as well as a “barn, sta-

ble, or warehouse” if it is “parcel of the mansion-house”

and “within the curtilage,” even if it is “not under the

same roof or contiguous” to the house. 4 Blackstone

225, 226. By contrast, burglary cannot “be committed

in a tent or booth erected in a market or fair.” Id. at

226. It would “no more make|| it burglary to break it

open, than it would be to uncover a tilted waggon sic]

in the same circumstances.” Jd. (emphasis added).

Thus, even from that early time, a partially exposed

vehicle simply has not been entitled to the same pro-

tections as a “mansion or dwelling house” or a “barn,

stable, or warehouse” where a “waggon” or some other

vehicle might be enclosed.

Having the automobile exception turn on whether

or not the vehicle is enclosed within a physical struc-

ture—rather than simply whether it is located inside

the curtilage—also aligns better with the justifications

for the exception. First, while a vehicle’s ready mobility

does not depend on whether it is parked on one part of

the driveway inside the curtilage, or on another part of

the driveway outside it, see supra Part II.B, a vehicle

parked inside an enclosed structure has its mobility

limited by a physical barrier, making for less “conven-

ient access to a public road.” Carney, 471 U.S. at 394

n.3.

Second, notwithstanding the reduced expectations

of privacy in vehicles, individuals have a greater expec-

tation of privacy in enclosed areas shielded from public

view, such as homes and garages, than they do in open

curtilage. Cf Katz v. United States, 389 U.S. 347, 351

(1967) (“What a person knowingly exposes to the pub-

lic, even in his own house or office, is not a subject of

Fourth Amendment protection.”). A driveway likewise

is subject to a lower expectation of privacy, particularly

when it is plainly visible from the street, as it was here.

Finally, when a vehicle is housed inside an en-

closed structure, rather than outside it, it becomes

more difficult to determine whether the vehicle is be-

ing “used for residential purposes.” Carney, 471 U.S. at

392. While an officer may reasonably presume that a

vehicle parked on a driveway is used for transporta-

tion—absent other indicia to the contrary—an officer

cannot as easily make the same presumption about a

vehicle parked inside a closed garage. See LaFave,

Search and Seizure § 7.2(b) n.59 (noting that Carney’s

language may distinguish a vehicle “located inside pri-

vate premises (e.g., a garage)” from a vehicle “parked

on the grounds of the residence”).

Ill. If the curtilage determination matters, the

case should be remanded.

If this Court decides that the outcome of this case

turns on whether the motorcycle was parked on a por-

tion of the driveway situated within the curtilage, the

Court should remand the case to the Supreme Court of

Virginia for further proceedings.

None of the courts below made a curtilage finding.

See Pet. App. 105-07 (bench ruling); Pet. App. 41 (Va.

Ct. App. op.) (“assum|ing] without deciding that Officer

Rhodes entered the curtilage when he walked up the

driveway”); Pet. App. 30 n.4 (Va. S. Ct. op.) (“I do not

address the question of whether the part of the drive-

way where the motorcycle was parked ... was curti-

lage... .”) (Mims, J., dissenting). In fact, the Court of

Appeals of Virginia, noting the lack of detail in the

record, expressly “decline|d] to conjecture the facts nec-

essary to perform a precise analysis.” Pet. App. 41.

But that does not mean, as Collins argues, Br. for

Pet. at 32, that the Commonwealth did not dispute be-

low Collins’s curtilage claim. It did—see, e.g., JA 239

(denying that “it is undisputed that Rhodes entered

the curtilage”)—and with good reason. To begin with, a

driveway is not a “classic exemplar” of curtilage like

the front porch in Jardines, 569 U.S. at 7. Unlike the

front porch, which is connected to the home, the vari-

ous possible configurations and lengths of driveways

preclude a one-size-fits-all generalization; part of the

driveway may be curtilage while another part of it may

not be. See, e.g., United States v. Beene, 818 F.3d 157,

162 (5th Cir. 2016) (finding that the portion of the

driveway where the vehicle was parked “was not part

of the curtilage”).

And in this particular case, three of the four curti-

lage factors discussed in Dunn militate against finding

that the motorcycle was parked within the curtilage.

The driveway was not within an enclosure that also

surrounded the home; the driveway was used only to

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

activities in the driveway from passersby. See Pet. App.

112-13 (photographs). Under such circumstances, the

portion of the driveway where the motorcycle was

parked was not curtilage because it did not “harbor| |

the ‘intimate activity associated with the sanctity of a

man’s home and the privacies of life.’” Dunn, 480 U.S.

at 300 (quoting Oliver, 466 U.S. at 180). Indeed, Collins

himself posted pictures of the driveway and the

motorcycle on his Facebook page, refuting any notion

that he tried to keep his activities there entirely pri-

vate.

Contrary to Collins’s suggestion, though, Br. for

Pet’r at 34-35, this Court should not make a curtilage

determination in the first instance. See Zivotofsky v.

Clinton, 566 U.S. 189, 201 (2012) (noting that this

Court “is a court of final review and not first view” and

“lolrdinarily . . . doles] not decide in the first instance

issues not decided below”) (internal punctuation and

citations omitted). If the Court concludes that a curti-

lage finding is determinative of the outcome here, then

it should remand the case for resolution of that dis-

puted question.

CONCLUSION

The judgment of the Supreme Court of Virginia

should be affirmed.

Respectfully submitted,

MARK R. HERRING TREVOR S. Cox

Attorney General Acting Solicitor General

of Virginia Counsel of Record

MATTHEW R. MCGUIRE OFFICE OF THE VIRGINIA

Acting Deputy ATTORNEY GENERAL

Solicitor General 202 North Ninth Street

Richmond, Virginia 23219

CHEER. SG eeeceneiee

hams A y Ge tcox@oag.state.va.us

December 13, 2017

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