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

No. 16-1027

In the Supreme Court of the GAnited States

RYAN AUSTIN COLLINS,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

Respondent.

On Writ of Certiorari to

the Supreme Court of Virginia

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

EUGENE R. FIDELL ANDREW J. PINCUS

Yale Law School Counsel of Record

Supreme Court Clinic CHARLES A. ROTHFELD

127 Wall Street PAUL W. HUGHES

New Haven, CT 06511 MICHAEL K. KIMBERLY

(203) 432-4992 Mayer Brown LLP

ILYA SHAPIRO 1999 K Street, NW

Washington, DC 20006

JAY R. SCHWEIKERT .

Cato Institute (202) 263-3000

1000 Mass. Ave. NW —- PtNcus@mayerbrown.com

Washington, DC 20001

(202) 842-0200

Counsel for Amicus Curiae

NSS SEE EN DROS TO EIOE ET

i

TABLE OF CONTENTS

Te a - contnseionmsedniansiduubids ii

Interest of the Amicus Curiae....................0....00-s0000000s 1

I etesibtenbccbighneonasadacsinna 1

SRE SESE a AA Ae SLD RC 3

The Officers Were Required To Obtain A

Warrant To Search Petitioner’s Vehicle..................... 3

A. The Fourth Amendment provides

especially strong protection for individuals’

homes and surrounding curtilage. ........................ 3

1.

2.

Special protection for the privacy of the

home has a lengthy historical pedigree. .......... 4

The Fourth Amendment was adopted to

safeguard the privacy of Americans’

REE EE NEO RS EON LN po Lee eee 7

The Fourth Amendment’s special

solicitude for the home extends to its

IERIE RE RP ANE RP a 9

Protection of the home is an example of

the Fourth Amendment’s broad

protection of private property against

unjustified government intrusion. ................. 10

B. Warrantless searches of vehicles parked on

curtilage would seriously erode the Fourth

Amendment's protection of the home.................. 12

C. The justifications underlying the

Automobile exception do not apply when a

vehicle is parked on the curtilage. ...................... 15

a 20

es

TABLE OF AUTHORITIES

Page(s)

Cases

Brigham City v. Stewart,

TLE eee eee ae 19

Cady v. Dombrovski,

SEER eae oe eae 17

California v. Carney,

Se II ciciiccsnrecsinecnccussaseueseuseetecs 13, 15

California v. Greenwood,

ee 13

Carroll v. United States,

Re I SII in cciscnnscccssicunsecnessanetetcuneneds 16

Chambers v. Maroney,

Ee a a 16

Coolidge v. New Hampshire,

A rs GI osc inccececcessncccscevecccessons 13, 15, 20

Entick v. Carrington,

ee 5, 6,9

Florida v. Jardines,

I passim

Georgia v. Randolph,

Be I 0. sccnscsueseesduenententesisnonsesunce 10

Hester v. United States,

TE eae eee 9

Horton v. California,

EER eee ee 14

Huckle v. Money,

PI SI, PI I occ cccercemsemsencotencinsieeceecs 6

ill

TABLE OF AUTHORITIES—continued

Page(s)

Illinois v. Caballes,

Oe TF, Ge i iacesnccnccenestssccvccecchinsessanenaniaieans 13

Kyllo v. United States,

Be Ce inves csccevncoccocenssoncsunssvenocsenannnnets 9

Maryland v. Dyson,

i Se I ci cckecicecccvicinsiencnsnanssessciominnseens 16

Maryland v. King,

Fe es Re CS ee 7,8

McDonald v. United States,

I Ce i verentecennnasncsesccccuscusesinecsnttmnentsta 17

Mincey v. Arizona,

I a, Se iikentivicssicosceciocstdunieceieneinaie 17, 18

Minnesota v. Carter,

ey Ses ccnccicvcnsixscasconecinseiinniabecnssunssnains 11

Missouri v. McNeely,

tf Oe! 5 Eee 19

Money v. Leach (1765),

OT Beng. Rew. 1676 ...............00cc.scccccrccccsessvvesscesencsoses 6

Oliver v. United States,

TN I Foci cacceccenscencccsnsestennesenncciounmebane 10

Riley v. California,

TE Ge | eee 3, 7, 18

Roaden v. Kentucky,

BEB UT Ga rr ev nceecesccccccecsecssceconesnessnsconsctonans 19

Scher v. United States,

(Le Ree 20

Semayne’s Case,

77 Eng. Rep. 194 (1604).................ccsccceeeeeeees 4, 5,6

iv

TABLE OF AUTHORITIES—continued

Page(s)

Silverman v. United States,

i cecseamencibon 9

Soldal vy. Cook County,

EES 11

South Dakota v. Opperman,

EE ne 15

United States v. Dunn,

as ceemmenaniinian 14

United States v. Jones,

I CI I cc ccccccccccsceccccsccccsvces 2,10, 11, 12

United States v. Karo,

i eceaeninenintion 13

United States v. Knotts,

I nsnessasennentes 11,13

United States v. Place,

i euemeenons 13

United States v. Santana,

I otuseusiion 19

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

RR 9, 12

Vale v. Louisiana,

EE Ee 18

Wilkes v. Wood,

NE FF 5, 6

Miscellaneous

1 Nelson B. Lasson, The History and Develop-

ment of the Fourth Amendment to the Unit-

ed States Constitution (1937)....................... passim

v

TABLE OF AUTHORITIES—continued

Page(s)

2 Matthew Hale, Historia Pacitorum Caronae

(17 BB) .....ccccececsecceecsesecnsscnsssnnsesscossososonsesssssonnesenseees 18

2 Wayne R. LaFave, Substantive Criminal Law

(2d Cd. BOOB)............c-ecceeeceeeseseeceseenseeensnnssnnnessnsenenes 5

3 Joseph Story, Commentaries on the Constitu-

tion of the United States: With a Preliminary

Review of the Constitutional History of the

Colonies and States. Before the Adoption of

the Constitution (1833) .................c--<:-e-eeeeeeeenennenens x

4 William Blackstone, Commentaries on the

Laws of England (1769)............-..cserseneeeennees 9

Akhil Reed Amar, The Fourth Amendment,

Boston, and the Writs of Assistance, 30

Suffolk U. L. Rev. 53 (1996)...............-.ccccceeeeeeeeeees 5

Edward Coke, The Institutes of the Laws of

England (London, Fletcher, Lee

Be Pakemma#n 1644)..........0..c-ccecesssossssesesecsererssssoesseeses 4

William J. Cuddihy, The Fourth Amendment:

Origins and Original Meaning 602-1791

(DODD) .....000.eccseeccecceseccsonsevnsaccsecrsessssonssssssonsssnssansesess 8

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547 (1999) ............. 5

Laura K. Donohue, The Original Fourth

Amendment, 83 U. Chi. L. Rev. 1181 (2016)...7, 18

M. Blane Michael, Reading the Fourth

Amendment: Guidance from the Mischief that

Gave It Birth, 85 N.Y.U. L. Rev. 905 (2010) .....6, 7

William Pitt, Earl of Chatham 1708-78, Oxford

Dictionary of Quotations (7th ed. 2009) ............-.-- 5

INTEREST OF THE AMICUS CURIAE

The Cato Institute was established in 1977 as a

nonpartisan public policy research foundation dedi-

cated to advancing the principles of individual liber-

ty, free markets, and limited government. Cato’s

Center for Constitutional Studies promotes the prin-

ciples of limited constitutional government that are

the foundation of liberty. To those ends, Cato pub-

lishes books and studies, conducts conferences, pro-

duces the annual Cato Supreme Court Review, and

files amicus briefs. !

The Framers of our Constitution recognized that

the Fourth Amendment’s protection against abuse of

government authority is a critical bulwark of Ameri-

cans’ liberty. That protection remains just as essen-

tial today. Cato files this brief to explain why the de-

cision below improperly diminishes the Fourth

Amendment’s core protection of the privacy of Amer-

icans’ homes.

SUMMARY OF ARGUMENT

“A man’s home is his castle” is not just an apho-

rism—it is also a longstanding legal principle. From

Biblical times through to the English common law,

the home was recognized as a place of refuge in

which the owner is protected against uninvited pri-

vate parties and unjustified government intrusion.

That legal protection against arbitrary govern-

ment incursions into the home was embodied in the

! Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part and that no person

other than amicus and its counsel made a monetary contribu-

tion to its preparation or submission. The parties have provided

written consent to the submission of this amicus brief.

2

Fourth Amendment, which resulted in large measure

from Americans’ reaction to the British authorities’

use of general warrants and writs of assistance to

search colonists’ homes without any individualized

suspicion. As a result of this history, “when it comes

to the Fourth Amendment, the home is first among

equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013).

At common law, and under the Fourth Amend-

ment, the protection accorded to the home extends to

its surrounding grounds and out-buildings—the cur-

tilage. “[I]ntimately linked to the home, both physi-

cally and psychologically,” the curtilage is regarded

“as part of the home itself for Fourth Amendment

purposes.” /bid.

The Fourth Amendment’s protection of the home

and its curtilage is one example—albeit the clearest

example—of the Amendment’s protection against un-

reasonable government intrusion into Americans’

private property. The text of the Amendment refers

to “[t]he right of the people to be secure in their * * *

houses, papers, and effects,” and the Court’s applica-

tion of its protections encompasses “government

trespass upon the areas (‘persons, houses, papers,

and effects’) [the Amendment] enumerates.” United

States v. Jones, 565 U.S. 400, 405 (2012).

Permitting warrantless searches of vehicles

parked on the home’s curtilage is squarely incon-

sistent with the Fourth Amendment’s special solici-

tude for the privacy of the home. And it would permit

officers to intrude further by employing the plain

view doctrine with respect to other parts of the curti-

lage or home visible as a result of an intrusion to

search the parked vehicle.

3

The principal justification for allowing warrant-

less searches of vehicles is the reduced expectation of

privacy in vehicles as they travel on public roads.

But there is no such reduced expectation when a ve-

hicle is parked at home. To the contrary, expecta-

tions of privacy are at their zenith in the home and

its surroundings.

To the extent the automobile exception rests on

vehicles’ mobility—and the Court has moved away

from that rationale—a vehicle parked at home is

immobile. And if it leaves the home and curtilage it

would become subject to search.

Moreover, “the availability of the exigent circum-

stances exception” assures that the warrant re-

quirement does not undermine critical law enforce-

ment needs. Riley v. California, 134 S. Ct. 2473, 2494

(2014). For example, the need to prevent physical

harm or destruction of evidence and the “hot pursuit”

doctrine will allow officers to intrude on the curtilage

without a warrant. In the absence of those circum-

stances, however, the Fourth Amendment’s warrant

requirement applies to protect Americans’ most pri-

vate refuge against the abusive use of government

power.

ARGUMENT

The Officers Were Required To Obtain A

Warrant To Search Petitioner’s Vehicle.

A. The Fourth Amendment provides espe-

cially strong protection for individuals’

homes and surrounding curtilage.

The home has long been afforded special protec-

tion against unjustified intrusion by government au-

thorities. The Fourth Amendment, reflecting that

4

history and the colonists’ outrage at British searches

without warrants supported by individualized prob-

able cause, incorporates special solicitude for the

home. And, as was true at common law, that protec-

tion extends to a home’s surrounding curtilage.

1. Special protection for the privacy of the

home has a lengthy historical pedigree.

Long before America won its independence, an

individual’s special privacy right in his home was

well-established.

The Book of Deuteronomy instructs that a lender

should not go into his neighbor’s house to secure re-

payment: “When thou dost lend thy brother any

thing, thou shalt not go into his house to fetch his

pledge. Thou shalt stand abroad, and the man to

whom thou dost lend shall bring out the pledge

abroad unto thee.” Deuteronomy 24:10-11. Similarly,

Joshua declined to send his messengers to search

Achan’s tent for stolen goods until he had secured a

confession from Achan himself. Joshua, 7:16-24.

The Romans also believed the house was “not only

an asylum but was under the special protection of

the household gods.” 1 Nelson B. Lasson, The History

and Development of the Fourth Amendment to the

United States Constitution 15 (1937).

Anglo-Saxon and Norman law sought to specially

protect the home by harshly punishing its breach. In

Anglo-Saxon law, “domus invasio,” home invasion,

was a crime punishable by execution. /d. at 19.

English common law incorporated the same pre-

cept, recognizing that “a man’s house is his castle.”

Edward Coke, The Institutes of the Laws of England

5

162 (London, Fletcher, Lee, & Pakeman 1644); see

also Semayne’s Case (1604), 77 Eng. Rep. 194, 195

(“the house of everyone is to him as his castle and

fortress”).

That axiom was given life by the courts, which

punished violations of the home more harshly than

violations of other property. Burglary at common law

was limited to the breaking and entering of a dwell-

ing house or other building located on its curtilage. 2

Wayne R. LaFave, Substantive Criminal Law § 21.1

(2d ed. 2003). And acts committed with the intent of

inflicting a harm generally were punished as a mis-

demeanor, but “breaking into a house at night with

the intent to commit a felony was itself a felony.”

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547, 642 n.259 (1999)

(emphasis added).

Protection against unjustified government intru-

sions into the home was also an element of English

common law. William Pitt enunciated the principle

in his famous address to the House of Commons in

1763:

The poorest man may in his cottage bid defi-

ance to all the forces of the Crown. It may be

frail—its roof may shake—the wind may blow

through it—the storm may enter—the rain

may enter—but the King of England cannot

enter!

William Pitt, Earl of Chatham 1708-78, Oxford Dic-

tionary of Quotations (7th ed. 2009). It was adopted

by English courts in the celebrated Wilkes and

6

Entick cases,? described by one legal historian as

“the most famous colonial-era cases in all America—

the O.J. Simpson and Rodney King cases of their

day.” Akhil Reed Amar, The Fourth Amendment,

Boston, and the Writs of Assistance, 30 Suffolk U. L.

Rev. 53, 65 (1996).

Wilkes involved a broad warrant issued by the

Secretary of State without probable cause under

oath. That warrant authorized searches of the homes

and private papers of numerous individuals poten-

tially responsible for publication of The North Briton

No. 45, which criticized the King. Government

agents “ransacked houses and printing shops in their

searches, arrested forty-nine persons (including the

pamphlet’s author, Parliament member John

Wilkes), and seized incriminating papers—all under

a single general warrant.” M. Blane Michael, Read-

ing the Fourth Amendment: Guidance from the Mis-

chief that Gave It Birth, 85 N.Y.U. L. Rev. 905, 910

(2010).

Several of the individuals targeted brought tort

actions against those executing the warrant seeking

damages in trespass for the searches, seizure of pa-

pers, and arrests. E.g., Wilkes v. Wood (1763), 98

Eng. Rep. at 489, 489. The courts held that the gen-

eral warrant did not provide a defense against liabil-

ity, because such warrants were “illegal, and contra-

ry to the fundamental principles of the constitution.”

Id. at 499; accord Money v. Leach (1765), 97 Eng.

2 Wilkes v. Wood (1763), 98 Eng. Rep. 489; Entick v. Carrington

(1765), 95 Eng. Rep. 807.

7

Rep. 1075, 1088; Huckle v. Money (1763), 95 Eng.

Rep. 768, 769.8

2. The Fourth Amendment was adopted to

safeguard the privacy of Americans’

homes.

James Otis’s speech in Boston against writs of as-

sistance—which authorized general searches by the

British of colonists’ homes+—famously invoked the

house-as-castle metaphor. 2 Legal Paper» of John

Adams 142 (L. Kinvin Wroth & Hiller B. Zobel eds.,

1965). That speech was, according to John Adams,

“the first scene of the first act of opposition to the

arbitrary claims of Great Britain. Then and there the

child Independence was born.” Riley v. California,

134 S. Ct. 2473, 2494 (2014) (citation omitted).

It therefore is not at all surprising that “[t]he

sanctity of the home lay at the heart” of the precur-

sors to the Fourth Amendment included in the state

constitutions of Massachusetts, New Hampshire,

Pennsylvania, and Vermont. Laura K. Donohue, The

Original Fourth Amendment, 83 U. Chi. L. Rev.

1181, 1277 (2016).

%’ Another general warrant targeted the publisher of an alleg-

edly seditious pamphlet. In the suit by the publisher seeking

damages in trespass for harm resulting from the search, the

court rejected the defendants’ reliance on the general warrant:

“we can safely say there is no law in this country to justify the

defendants in what they have done; if there was it would de-

stroy all of the comforts of society.” Entick, 95 Eng. Rep. at 817.

* These court-issued writs “empowered a customs officer to

search any place on nothing more than his own (subjective)

suspicion.” M. Blane Michael, 85 N.Y.U.L. Rev. at 907-908.

8

In the debates over ratification of the new Feder-

al Constitution, Antifederalists criticized the absence

of such a protection, “sarcastically predict[ing] that

the general, suspicionless warrant would be among

the Constitution’s ‘blessings.” Maryland v. King, 133

S. Ct. 1958, 1981 (2013) (Scalia, J., dissenting). “Pat-

rick Henry warned that the new Federal Constitu-

tion would expose the citizenry to searches and sei-

zures ‘in the most arbitrary manner, without any ev-

idence or reason.” Ibid.

One pamphleteer, calling himself “Cato Uticen-

sis,” warned Virginia readers that if they approved

the Constitution: “you subject yourselves to see the

doors of your houses them [sic] impenetrable Castles

of freemen, fly open before the magic wand of an

excisman.” William J. Cuddihy, The Fourth Amend-

ment: Origins and Original Meaning 602-1791, 677-

678 (2009) (quoting Cato Uticensis, Virginia Inde-

pendent Chronicle, Oct. 17, 1787, at 1). “The magni-

tude of [the] publicity” regarding inclusion of an ex-

press prohibition on general warrants “indicated the

emergence of a consensus for a comprehensive right

against unreasonable search and seizure.” Jd. at 686.

By 1789, James Madison had concluded that the

new Constitution should be amended to include pro-

tection of “essential rights,” including providing “se-

curity against general warrants.” Letter from James

Madison to George Eve (Jan. 2, 1789); see also King,

133 S. Ct. at 1981 (Scalia, J., dissenting) (explaining

that “Madison’s draft of what became the Fourth

Amendment answered” the Antifederalists’ concerns

about the lack of any constitutional protection

against general warrants) That protection, subse-

quently embodied in the Fourth Amendment, was

deemed “indispensable to the full enjoyment of the

9

rights of personal security, personal liberty, and pri-

vate property.” 3 Joseph Story, Commentaries on the

Constitution of the United States: With a Preliminary

Review of the Constitutional History of the Colonies

and States, Before the Adoption of the Constitution §

1895 (1833).

Given this history, it is not at all surprising that

“when it comes to the Fourth Amendment, the home

is first among equals.” Florida v. Jardines, 569 U.S.

1, 6 (2013). As the Court has repeatedly held, “[a]t

the very core’ of the Fourth Amendment ‘stands the

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

be free from unreasonable governmental intrusion.”

Kyllo v. United States, 533 U.S. 27, 31 (2001) (quot-

ing Silverman v. United States, 365 U.S. 505, 511

(1961)); see also United States v. U.S. Dist. Court,

407 U.S. 297, 313 (1972) (“physical entry of the home

is the chief evil against which the Fourth Amend-

ment is directed”).

3. The Fourth Amendment’s special solici-

tude for the home extends to its curtilage.

From the common law to today, the protection

accorded to an individual’s home has extended be-

yond the house itself to the surrounding property,

known as the “curtilage.” Indeed, this Court has rec-

ognized that the practice of treating the curtilage as

part of the home is “as old as the common law.”

Jardines, 569 U.S. at 6 (quoting Hester v. United

States, 265 U.S. 57, 59 (1924)).

For example, the common law categorized as

burglary the entry by intruders onto any “parcel of

the mansionhouse,” because “the capital house pro-

tects and privileges all its branches and appur-

tenants, if within the curtilage or homestall.” 4 Wil-

10

liam Blackstone, Commentaries on the Laws of Eng-

land *225 (1769). It was a “sacred” principle that

“no man can set his foot on his neighbour's close

without his leave.” Jardines, 569 U.S. at 8 (quoting

Entick, 95 Eng. Rep. at 817). The curtilage is “inti-

mately linked to the home, both physically and psy-

chologically.” Jardines, 569 U.S. at 6.

Because the curtilage is viewed as part and par-

cel of the home, courts “regard the area ‘immediately

surrounding and associated with the home’ * * * as

‘part of the home itself for Fourth Amendment pur-

poses.” Ibid. (quoting Oliver v. United States, 466

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

4. Protection of the home is an example of

the Fourth Amendment’s broad protection

of private property against unjustified

government intrusion.

The Fourth Amendment’s protection of the home

and curtilage is the most robust example of the

Amendment’s general protection of private property

against incursions by the government.

The Court has explained, “[t]he text of the

Fourth Amendment reflects its close connection to

property, since otherwise it would have referred

simply to ‘the right of the people to be secure against

unreasonable searches and seizures’; the phrase ‘in

their persons, houses, papers, and effects’ would

have been superfluous.” United States v. Jones, 565

U.S. 400, 405 (2012). For that reason, “[the Court’s]

Fourth Amendment jurisprudence was tied to com-

mon-law trespass, at least until the latter half of the

20th century.” Ibid.

11

It continues to be true that Fourth Amendment

protection is triggered by “government trespass upon

the areas (‘persons, houses, papers, and effects’) [the

Amendment] enumerates.” Jd. at 406. “[T]he law of

property ‘naturally enough influence[s]’ our ‘shared

social expectations’ of what places should be free

from governmental incursions.” Jardines, 569 U.S. at

13-14 (Kagan, J., concurring) (quoting Georgia v.

Randolph, 547 U.S. 103, 111 (2006).

“[P]roperty rights are not the sole measure of

Fourth Amendment violations,” but the Court’s

adoption of the “reasonable expectation of privacy”

standard did not “snuf]f] out the previously recog-

nized protection for property.” Soldal v. Cook County,

506 U.S. 56, 64 (1992); see also Minnesota v. Carter,

525 U.S. 83, 88 (1998) (defining the “reasonable ex-

pectation of privacy” triggering Fourth Amendment

protection as an expectation “that has a source out-

side of the Fourth Amendment, either by reference to

concepts of real or personal property law or to under-

standings that are recognized and permitted by soci-

ety” (internal quotation marks omitted)); United

States v. Knotts, 460 U.S. 276, 286 (1983) (reaffirm-

ing the principle “that, when the Government does

engage in physical intrusion of a constitutionally

protected area in order to obtain information, that

intrusion may constitute a violation of the Fourth

Amendment”) (Brennan, J., concurring in judgment)

(emphasis omitted).

Indeed, the Jones Court rested its decision on

this ground, holding that the Fourth Amendment's

protections applied because “[t]he Government phys-

ically occupied private property”—the car to which it

12

attached a beeper—‘“for the purpose of obtaining in-

formation.” 565 U.S. at 404.

The Amendment’s protection of the home is thus

one example—albeit the most important example—of

its general protection of private property against un-

justified government intrusions.

B. Warrantless searches of vehicles parked

on curtilage would seriously erode the

Fourth Amendment’s protection of the

home.

The Court has explained that “an officer’s leave

to gather information is sharply circumscribed when

he steps off]] thoroughfares and enters the Fourth

Amendment’s protected areas.” Jardines, 569 U.S. at

7. Warrantless searches of vehicles parked in a

driveway or on another part of a home’s curtilage—

indisputably the Fourth Amendment’s most protect-

ed areas—would violate this principle.

First, allowing such warrantless searches would

permit government officials to intrude into a home

and its surroundings any time they have probable

cause to suspect that a vehicle parked on the curti-

lage contains contraband or other evidence of crime.

That result is fundamentally incompatible with the

Fourth Amendment's “particular concern for gov-

ernment trespass,” Jones, 565 U.S. at 406, that in-

fringes on basic property and privacy rights. Far

from guarding against the “physical entry of the

home”—the central concern of the Fourth Amend-

ment—such an approach would open the door to that

“chief evil.” United States District Court, 407 U.S. at

313.

This Court has repeatedly recognized that when

otherwise permissible government intrusions occur

13

on the home or curtilage, heightened property and

privacy interests require the government to obtain a

warrant.

Thus, the Court held that a dog sniff on the curti-

lage constitutes a search under the Fourth Amend-

ment, see Jardines, 569 U.S. at 11-12, despite reach-

ing the opposite conclusion for dog sniffs of luggage

at the airport, United States v. Place, 462 U.S. 696

(1983), or vehicles lawfully stopped on the highway,

Illinois v. Caballes, 543 U.S. 405 (2005).

The Court similarly held that use of a beeper to

monitor the movement of a container of chemicals in

an individual’s residence was a Fourth Amendment

search, United States v. Karo, 468 U.S. 705 (1984),

even though such monitoring does not constitute a

search when confined to public places, as in United

States v. Knotts, supra.

In California v. Greenwood, 486 U.S. 35 (1988),

this Court was careful to restrict its holding to the

claim that there is no reasonable expectation of pri-

vacy in “garbage left for collection outside the curti-

lage of a home.” Id. at 37 (emphasis added).

Although the Court has not squarely addressed

the question in the vehicle context, it has come close

to endorsing the same conclusion. Thus, a plurality

refused to uphold the warrantless search of a vehicle

parked at a home in Coolidge v. New Hampshire, 403

U.S. 443 (1971). And the Court in California v. Car-

ney stated that justifications underlying the automo-

bile exception apply “[w]hen a vehicle is being used

on the highways, or if it is readily capable of such use

and is found stationary in a place not regularly used

for residential purposes.” 471 U.S. 386, 392-93 (1985)

(emphasis added).

14

As with other intrusions into the home and its

surroundings, permitting warrantless searches of

vehicles parked at home is fundamentally incompat-

ible with the Fourth Amendment’s special solicitude

for the privacy of the home.

Second, the diminution of property and privacy

rights would not be limited to the search of the vehi-

cle. The plain view doctrine permits officers to seize

an item that is in plain view provided that (1) they

observe it from a lawful vantage point; (2) they have

a right of physical access to it; and (3) it is immedi-

ately apparent to him that it is contraband or a fruit,

instrumentality, or evidence of a crime. Horton v.

California, 496 U.S. 128, 136-137 (1990).

Allowing officers to enter the curtilage without a

warrant radically extends officers’ lawful vantage

point over the curtilage and expands their right of

access to it, thus greatly enabling their ability to

seize items of personal property under the plain view

doctrine. The right to be secure in one’s home would

have “little practical value if the State’s agents could

stand in a home’s porch or side garden and traw! for

evidence with impunity.” Jardines, 569 U.S. at 6.

Third, there is no logical justification for distin-

guishing vehicles from other containers or structures

on the curtilage. The Court has explained that “curti-

lage questions should be resolved with particular

reference to four factors: the proximity of the area

claimed to be curtilage to the home, whether the ar-

ea is included within an enclosure surrounding the

home, the nature of the uses to which the area is put,

and the steps taken by the resident to protect the ar-

ea from observation by people passing by.” United

States v. Dunn, 480 U.S. 294, 301 (1987).

15

A vehicle parked on the curtilage satisfies each of

these criteria. It is virtually always proximate to the

home—in a driveway or garage. The vehicle itself is

an enclosure, often used to store personal items. And

the vehicle’s contents generally are not visible to

passers-by.

Indeed, that is the conclusion reached by the plu-

rality in Coolidge: “If we were to accept [the] view

that warrantless entry for purposes of arrest and

warrantless seizure and search of automobiles are

per se reasonable, so long as the police have probable

cause, it would be difficult to see the basis for distin-

guishing searches of houses and seizures of effects.

*** If the police may, without a warrant, seize and

search an unoccupied vehicle parked on the owner's

private property, not being used for any illegal pur-

pose, then it is hard to see why they need a warrant

to seize and search a suitcase, a trunk, a shopping

bag, or any other portable container in a house, gar-

age, or back yard.” 403 U.S. at 479-80 (plurality opin-

ion).

C. The justifications underlying the Auto-

mobile exception do not apply when a

vehicle is parked on the curtilage.

The automobile exception rests on two justifica-

tions: a reduced expectation of privacy stemming

from pervasive regulation and the inherent mobility

of automobiles. Carney, 471 U.S. at 392-393. Neither

rationale applies to vehicles parked at home.

1. An individual may have a reduced expectation

of privacy in a vehicle when it is on the road—

because of the many regulatory requirements that

apply and can be enforced by police officers. See

South Dakota v. Opperman, 428 U.S. 364, 368 (1976)

16

(“[a]s an everyday occurrence, police stop and exam-

ine vehicles when license plates or inspection stick-

ers have expired, or if other violations, such as ex-

haust fumes or excessive noise, are noted, or if head-

lights or other safety equipment are not in proper

working order’).

But, for the reasons already discussed, there is

no such reduced expectation when a vehicle is

parked at home. To the contrary, expectations of pri-

vacy are at their zenith at the home and its sur-

roundings.

2. Nor does the inherent mobility justification

apply to vehicles parked at the home.

That justification initially rested on a rationale

tied to exigent circumstances. Thus, in Carroll v.

United States, 267 U.S. 132 (1925)—the case in

which the Court first recognized the automobile ex-

ception—the vehicle was in transit on the highway

when the police spotted it. Its occupants could not

have been arrested prior to the search, making it im-

possible for the police to stop them from driving the

vehicle out of the jurisdiction. Jd. at 169. The Court

explained that it is not practicable to secure a war-

rant when “the vehicle can be quickly moved out of

the locality or jurisdiction in which the warrant must

be sought.” Jd. at 153.

Since Carroll, however, the Court has appeared

to sever the mobility justification from any require-

ment of exigency. Maryland v. Dyson, 527 U.S. 465,

466 (1999) (“the ‘automobile exception’ has no sepa-

rate exigency requirement”); Chambers v. Maroney,

399 U.S. 42 (1970) (holding that a car’s inherent mo-

bility justified the police in seizing it, moving it to

the police station, and searching it there without a

17

warrant, even though its occupants were in custody

at the time).

Indeed, the Court has recognized that even

though the original justification for the exception

“was the [automobile’s] vagrant and mobile nature,”

subsequent warrantless searches were upheld in

cases in which mobility was “remote, if not non-

existent.” Cady v. Dombrovski, 413 U.S. 433, 441-442

(1973).

If the automobile exception no longer rests on a

vehicle’s mobility, and instead is justified entirely by

reference to the reduced expectation of privacy, that

justification does not apply to vehicles parked at the

home—for the reasons already discussed.

If the automobile exception remains in some way

related to mobility, that justification has little force

with respect to a vehicle parked at home. Law en-

forcement officers can keep watch to ensure that the

vehicle does not leave the home until they obtain a

warrant. If it does exit the curtilage, the automobile

exception would allow it to be searched.

Finally, to the extent the exception rests on the

possibility of exigent circumstances, there is no basis

for an exception to the warrant requirement decou-

pled from actual exigent circumstances. And where

such circumstances are present, the existing exigent

circumstances rule will allow the police to act.

The Court has steadfastly stood by the principle

that—at least when it comes to the home and its sur-

rounding curtilage—an exception to the warrant re-

quirement demands a genuine exigency. “[W]Jarrants

are generally required to search a person’s home or

his person unless ‘the exigencies of the situation’

18

make the needs of law enforcement so compelling

that the warrantless search is objectively reasonable

under the Fourth Amendment.” Mincey v. Arizona,

437 U.S. 385, 393-394 (1978) (quoting McDonald v.

United States, 335 U.S. 451, 456 (1948)).

The Mincey Court declined to create a general

“murder scene exception” to the warrant require-

ment, rejecting the idea that “the seriousness of the

offense under investigation itself creates exigent cir-

cumstances of the kind that under the Fourth

Amendment justify a warrantless search.” Jd. at 394.

Similarly, this Court has declined to create a blanket

exception for warrantless searches of the home for

narcotics based on the fact that they are “easily re-

moved, hidden, or destroyed,” insisting that warrant-

less searches for narcotics must still be justified on a

case-by-case basis by genuinely exigent circumstanc-

es. Vale v. Louisiana, 399 U.S. 30, 34 (1970).

Here, as in other contexts, “the availability of the

exigent circumstances exception” assures that the

warrant requirement does not undermine critical law

enforcement needs. Riley v. California, 134 S. Ct.

2473, 2494 (2014).

At common law, there were a few limited circum-

stances in which no warrant was required for the

search of the home or its curtilage, all of which in-

volved restraining a dangerous person. One such ex-

ample was for constables or other officers in hot pur-

suit of a criminal known to have committed an of-

fense so serious as to breach the King’s peace. Laura

K. Donohue, The Original Fourth Amendment, 83 U.

Chi. L. Rev. 1181, 1222-1223 (2016).

Relatedly, officers, witnesses, or people respond-

ing to “hue and cry” could break down doors of any

19

home in which the felon breaching the King’s peace

hid, and seize any items there. Constables could also

enter a home without a warrant to break up a fight

or keep the peace. Jd. at 1230 (citing 2 Matthew

Hale, Historia Pacitorum Caronae 95 (1736)).

Modern doctrine recognizes several of the same

situations as exigent circumstances. For example,

hot pursuit is still an exigent circumstance that may

justify warrantless intrusion into the home. United

States v. Santana, 427 U.S. 38, 42 (1976). Officers

may also enter a home without a warrant to aid an

individual who may be hurt in a brawl inside.

Brigham City v. Stewart, 547 U.S. 398, 406-07

(2006).

This Court has also come to consider the immi-

nent removal or destruction of evidence as another

exigent circumstance justifying a warrantless search.

In Ker v. California, the Court affirmed a warrant-

less search based on officers’ fears that evidence in

the form of narcotics was about to be destroyed. 374

U.S. 24, 42 (1963) (plurality opinion). This Court has

however repeatedly reasserted that the removal or

destruction of evidence must be “imminent” to justify

bypassing the warrant requirement. Missouri v.

McNeely, 569 U.S. 141, 168 (2013) (Roberts, C.J.,

concurring in part and Uissenting in part). The Court

has framed its imminence requirement in no uncer-

tain terms: “[w]here there are exigent circumstances

in which police action literally must be ‘now or never’

to preserve the evidence of the crime, it is reasonable

to permit action without prior judicial evaluation.”

Roaden v. Kentucky, 413 U.S. 496, 505 (1973). In

other words, the mere possibility that evidence may

be removed or destroyed is insufficient to displace

the warrant requirement.

20

These existing exigency exceptions encompass all

instances in which the mobility of a vehicle parked

on the curtilage presents a genuinely pressing en-

forcement challenge. Like any other structure locat-

ed on the curtilage, a vehicle may be searched with-

out a warrant if the vehicle’s mobility creates one of

the established exigencies the Court has recognized.°

Concerns about urgent law enforcement impera-

tives therefore provide no basis for a rule broadly

permitting warrantless searches of vehicles parked

at home.

CONCLUSION

The judgment of the Supreme Court of Virginia

should be reversed.

5 Pursuit was the basis for the Court's decision in Scher v.

United States, 305 U.S. 251 (1938). The police were in pursuit of

the car that was searched—and in addition the search was jus-

tified as incident to arrest. Id. at 253, 255; see also Coolidge,

403 U.S. at 459 n.17 (plurality opinion).

21

Respectfully submitted.

EUGENE R. FIDELL ANDREW J. PINCUS

Yale Law School Counsel of Record

Supreme Court Clinic” CHARLES A. ROTHFELD

127 Wall Street PAUL W. HUGHES

New Haven, CT 06511 MICHAEL K. KIMBERLY

(203) 432-4992 Mayer Brown LLP

HAPIRO 1999 K Street, NW

ry SCHWEIKERT Washington, DC 20006

Cte Reatiedin (202) 263-3000

apincus@mayerbrown.com

1000 Mass. Ave., NW

Washington, DC 20001

(202) 842-0200

Counsel for Amicus Curiae

NOVEMBER 2017

* The representation of amicus by a clinic affiliated with Yale

Law School does not reflect any institutional views of Yale Law

School or Yale University.