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

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No. 16-1027

Ju Che

Supreme Court of the United States

RYAN AUSTIN COLLINS,

Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.

€

On Writ Of Certiorari To The

Supreme Court Of Virginia

BRIEF OF AMICI CURIAE

FOURTH AMENDMENT SCHOLARS

IN SUPPORT OF PETITIONER

LESLIE A. SHOEBOTHAM

Victor H. Schiro Distinguished

Professor of Law

Counsel of Record

LOYOLA UNIVERSITY NEW ORLEANS

COLLEGE OF LAW

7214 St. Charles Ave.

New Orleans, LA 70118

(504) 861-5683

shoeboth@loyno.edu

COCKLE LEGAL BRIEFS (800) 225-6964

WWW COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ..............ccc00000000+- 1

SUMMARY OF ARGUMENT .....0000...........eeeeeeeeeee 2

EERE NEESER RIT Ser eer 4

I. A Fourth Amendment “Search” Occurs When

Il.

the Government’s Warrantless Conduct Ei-

ther Infringes On a Reasonable Expectation

of Privacy Or Involves a Physical Intrusion

(a Trespass) On a Constitutionally Pro-

tected Area to Perform an Investigation.....

A. Katz-Based Doctrines Should Be Reex-

amined in Light of United States v. Jones

and Florida v. Jardines When Those Doc-

trines Undermine the Trespass Test’s

Neither United States v. Jones Nor Florida

vu. Jardines Signal That the Automobile Excep-

tion — a Per Se, Katz-Based Warrant Excep-

tion — Can Trump the Fourth Amendment’s

Traditional Baseline of Protection Under

A. The Automobile Exception Evolves, Af-

ter Katz, into a Per Se Warrant Excep-

iil cinciasaeisdaienbistehieeeennnarternciinieeentinenabialantinties

The Automobile Exception Does Not Auto-

matically Apply to the Search of an Unat-

tended Vehicle Parked Within a Home’s

I isitciceiantetindbesanddessnstncetsligtiiicmsiaddatiictiae

TABLE OF CONTENTS -— Continued

Page

A. An Area That Is “Open to the Public”

Can Receive Fourth Amendment Protec-

tion as Part of a Home’s Curtilage........ 28

B. The Trespass Basis of Fourth Amend-

ment Protection Was Violated by the Of-

ficer’s Detour from the Direct Path to

the Front Door and Physical Search of

Petitioner’s Tarp-Covered Motorcycle..... 32

1. The Officer’s Warrantless Investiga-

tion of Petitioner’s Motorcycle Is Not

Saved by New York v. Class, United

States v. Jacobsen, or the Plain View

SUED iseciuiitenpenestueiedebinnebigntuesieedianls 33

SI wicsdisranilisednintepnnnesnsciinnnnnniamiasapniiinmis 37

APPENDIX

en IG: ceameddnsiuneuteanenboaneial la

ili

TABLE OF AUTHORITIES

Page

CASES:

Arizona v. Hicks, 480 U.S. 321 (1987)................... 36, 37

Bond v. United States, 529 U.S. 334 (2000)................ 10

Brinegar v. United States, 338 U.S. 160 (1949).......... 23

Boyd v. United States, 116 U.S. 616 (1886)................ 27

California v. Acevedo, 500 U.S. 565 (1991)................. 11

California v. Carney, 471 U.S. 386 (1985)............ 21, 22

California v. Ciraolo, 476 U.S. 207 (1986)............ 27, 31

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

Chambers v. Maroney, 399 U.S. 42 (1970).................. 25

Collins v. Commonwealth, 773 S.E.2d 618 (Va.

ERE Ee Rare ene ee 29

Collins v. Commonwealth, 790 S.E.2d 611 (Va.

TTD sustiiccinccdceantiiniericipsliebibeitehistblnnsebetiainemmniiédtinsdignen 5, 20, 28, 29

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ... 24, 35

Cooper v. California, 386 U.S. 58 (1967) .................... 24

Florida v. Jardines, 569 U.S. 1 (2013)................ passim

Horton v. California, 496 U.S. 128 (1990)............ 35, 36

Husty v. United States, 282 U.S. 694 (1931)............... 23

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

Kentucky v. King, 563 U.S. 452 (2011)..........0........00. 32

Kyllo v. United States, 533 U.S. 27 (2001).............. 9,11

Maryland v. Dyson, 527 U.S. 465 (1999) ................0004 22

TABLE OF AUTHORITIES — Continued

Page

Mincey v. Arizona, 437 U.S. 385 (1978) .................0ce00e 6

Minnesota v. Dickerson, 508 U.S. 366 (1993) ............. 66

New York v. Class, 475 U.S. 106 (1986) ...................... 33

Oliver v. United States, 466 U.S. 170 (1984) .......... 6, 27

Pennsylvania v. Labron, 518 U.S. 938 (1996)............. 22

Preston v. United States, 376 U.S. 364 (1964)............ 23

Scher v. United States, 305 U.S. 251 (1938)............... 23

Silverman v. United States, 365 U.S. 505 (1961)......... 9

South Dakota v. Opperman, 428 U.S. 364 (1976)....... 22

Steagald v. United States, 451 U.S. 204

EE RES CPR Cee a ee 3, 6, 15, 19

Thims v. Commonwealth, 235 S.E.2d 443 (Va.

SUT icdiislibsdthinlisiiiinieietichaent nibad deitaeecdanedbdiediibsmniasianbiaitinings 28

United States v. Ackerman, 831 F.3d 1292 (10th

ee ccniserncecnnnecsaniteesedusiiondlbilensaintissniuncensinmpenipaaniii passim

United States v. Jacobsen, 466 U.S. 109 (1984).... passim

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

United States v. Martinez-Fuerte, 428 U.S. 543

ESE EES LE SEP eee eT ce 27

United States v. Ross, 456 U.S. 798

RE eae ee an ee 20, 22, 24, 25, 26

United States v. United States District Court,

Se ETRE TTT so icinreanhnnsneictenssensndnestesunenteiies 10, 27

CONSTITUTIONAL PROVISIONS:

Be ee MINING INT Giinsitertnsnasecdesopusccneentnstcesicenants passim

INTRODUCTION

The amici curiae submit this Brief in support of

Petitioner, and urge the Court to reverse the decision

of the Supreme Court of Virginia.

INTEREST OF AMICI CURIAE'

Amici curiae are criminal procedure professors

who teach, study, and write about the Fourth Amend-

ment. Amici submit this brief in support of Petitioner’s

position that, notwithstanding the automobile excep-

tion, the Fourth Amendment is violated when, in the

absence of exigent circumstances, a police officer en-

ters a home’s curtilage to conduct a warrantless, phys-

ical search of an unattended vehicle. No other brief

submitted in this case considers the question of the

erosive impact on the Court’s traditional (trespass-

based), Fourth Amendment interpretation if the auto-

mobile exception were held to automatically apply to

vehicles parked within a home’s curtilage.

’ The parties have consented to the filing of this brief.

No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund the preparation or submission of this brief. No person

other than amici curiae, its members, or its counsel made a mon-

etary contribution to this brief’s preparation or submission.

SUMMARY OF ARGUMENT

The issue before the Court is whether the auto-

mobile exception to the Fourth Amendment’s warrant

requirement supports the search of an unattended ve-

hicle parked within a home’s curtilage, without a find-

ing of exigency to justify the officer’s warrantless entry

onto the curtilage to conduct the physical search. The

Virginia Supreme Court held that the automobile

exception sufficed to support the officer’s entry onto

curtilage to perform a physical investigation of Peti-

tioner’s tarp-covered motorcycle. In upholding this

warrantless search, the Virginia Supreme Court as-

sumed that the automobile exception provided a per se

warrant exception, even though the police investiga-

tion at issue was made possible only by a warrantless

police entry onto a home’s curtilage — the traditional

basis of Fourth Amendment protection.

This case presents the Court with a critical cross-

road in determining the Fourth Amendment's scope

and applicability under the Court's trespass interpre-

tation. In Florida v. Jardines, the Court made clear

that a Fourth Amendment violation occurs if the gov-

ernment’s warrantless conduct either (1) infringes on

a person’s reasonable expectation of privacy, or (2) in-

volves a police investigation made possible by law en-

forcement’s physical intrusion on a constitutionally

protected area. See 569 US. 1, 11 (2013). Although

Katz’s privacy-expectations test’ and the trespass

analysis come at the Fourth Amendment question from

2 See Katz v. United States, 389 U.S. 347, 351 (1967).

different angles, they both address the circumstances

under which the Fourth Amendment protects a person

from warrantless police conduct. Only now, since United

States v. Jones* and Jardines, has the trespass basis of

Fourth Amendment protection reemerged as an intact

theory of Fourth Amendment protection — an interpre-

tation that has substance and meaning, independent

of Katz.

Since our nation’s founding, in order for police

to enter onto a person’s homestead to conduct an

investigation, the Fourth Amendment required law

enforcement to have a warrant, consent, or exigent

circumstances. See Steagald v. United States, 451 U.S.

204, 211 (1981). The automobile exception, as originally

understood, required consideration, either explicitly or

implicitly, of exigency to justify law enforcement’s war-

rantless, probable cause-based search of a vehicle. Af-

ter Katz, however, the Court recognized that there

were commonalities involving vehicle travel that sup-

ported a per se warrant exception for the probable

cause-based search of a vehicle, based upon general-

izations regarding drivers’ reduced expectation of

privacy in vehicles and their public travels.

Amici argue that the automobile exception must

not be used to expand the constitutional bases for war-

rantless, police entry onto a home’s curtilage — i.e., be-

yond those involving consent (express or implied),

exigent circumstances, or a warrant. Important here,

the Court’s decisions in Jones and Jardines have

* See 565 U.S. 400 (2012).

undermined the Virginia Supreme Court’s conclusions

regarding the scope of the automobile exception.

The Fourth Amendment does not support applying

the automobile exception — which amici argue here

is a per se, Katz-based warrant exception — to a tradi-

tional, trespass-based search and seizure. To do so

would erode the “irreducible constitutional minimum”

protection guaranteed under the Fourth Amendment’s

original meaning. Cf. Jones, 565 U.S. at 414 (Soto-

mayor, J., concurring). In addition to producing the con-

stitutional violation in this case, the Virginia Supreme

Court’s approach is problematic because it unneces-

sarily reinjects Katz into the Fourth Amendment’s tra-

ditional interpretation.

For these reasons, the Court should reverse the de-

cision of the Virginia Supreme Court, and hold that the

automobile exception does not apply to a vehicle that

is found, parked and unattended, within a home’s cur-

tilage, absent case-specific exigency to justify the of-

ficer’s warrantless entry and search.

ARGUMENT

The issue before the Court is whether the auto-

mobile exception to the Fourth Amendment’s warrant

requirement supports the search of an unattended ve-

hicle parked within a home's curtilage, without a find-

ing of exigency to justify the officer’s warrantless entry

onto the curtilage to conduct the physical search. The

Supreme Court of Virginia held that the automobile

exception, without more, sufficed to support the of-

ficer’s entry onto curtilage to perform a physical inves-

tigation of Petitioner’s tarp-covered motorcycle. See

Collins v. Commonwealth, 790 S.E.2d 611, 616-17 (Va.

2016) (“[Wle do not find it necessary to independently

assess whether exigent circumstances existed here.

Rather, the facts of this case are more properly ad-

dressed by a different exception to the warrant re-

quirement: the automobile exception.”). In upholding

this warrantless search, the Supreme Court of Virginia

assumed that the automobile exception provided a

per se, warrant exception,‘ even though the police in-

vestigation at issue was made possible only by a war-

rantless, police entry onto a home’s curtilage — the

traditional basis of Fourth Amendment protection.

This case presents the Court with a critical cross-

road in determining the Fourth Amendment’s scope

and applicability under the Court’s trespass interpre-

tation. Amici urge caution in following the Virginia

Supreme Court’s chosen road, and argue against im-

porting Katz-based, warrant exceptions into cases in-

volving traditional, Fourth Amendment searches and

seizures.

Since our nation’s founding, in order for police

to enter onto a person’s homestead to conduct an in-

vestigation, the Fourth Amendment required law

* See id. at 618 (“[W]e need not decide whether the motorcy-

cle was immediately mobile at the precise moment of the search.

The bright-line test does not require us to hypothesize whether it

would have been technically possible for Collins to uncover the

motorcycle, start the engine, and flee from Officer Rhodes.”).

enforcement to have a warrant, consent, or exigent cir-

cumstances. See Steagald v. United States, 451 U.S.

204, 211 (1981); see also Mincey v. Arizona, 437 U.S.

385, 393-94 (1978) (“[Wlarrants are generally required

to search a person’s home or his person unless ‘the

exigencies of the situation’ make the needs of law en-

forcement so compelling that the warrantless search

is objectively reasonable under the Fourth Amend-

ment.”). For decades after Katz v. United States,® the

Fourth Amendment’s trespass basis was folded into

Katz’s privacy-expectations test, and seemingly ceased

to exist as a separate theory of establishing Fourth

Amendment protection. See, e.g., Oliver v. United

States, 466 U.S. 170, 183 (1984) (“The existence of a

property right is but one element in determining

whether expectations of privacy are legitimate. The

premise that property interests control the right of the

Government to search and seize has been discred-

ited.”) (internal quotation marks omitted).

But, as the Court made clear in Florida v. Jardines,

the modern Court has not forgotten the Fourth Amend-

ment’s traditional roots and traditional interpretation.

See 569 US. 1, 6 (2013) (rejecting as violating the

Fourth Amendment a warrantless, canine sniff — per-

formed at the front door of Jardines’s suburban home

° See generally 389 U.S. 347, 348, 353 (1967) (holding that the

government’s warrantless, electronic listening and _ record-

ing of Katz’s telephone conversations — which were overheard

through a device attached to the outside of the public telephone

booth where Katz made his calls — “violated the privacy upon

which he justifiably relied while using the telephone booth and

thus constituted a ‘search and seizure’ within the meaning of the

Fourth Amendment.”).

— because, in obtaining the positive, canine sniff, the

officers had “gathered ... information by physically

entering and occupying the area [i.e., the home’s curti-

lage] to engage in conduct not explicitly or implicitly

permitted by the homeowner.”). After Jardines, a Fourth

Amendment violation occurs if the government’s war-

rantless conduct either (1) infringes on a person’s

reasonable expectation of privacy, or (2) involves a po-

lice investigation made possible by law enforcement’s

physical intrusion on a constitutionally protected area.

See id. at 11 (“The Katz reasonable-expectations test

has been added to, not substituted for, the traditional

property-based understanding of the Fourth Amend-

ment, and so is unnecessary to consider when the gov-

ernment gains evidence by physically intruding on

constitutionally protected areas.”) (internal quotation

marks omitted); United States v. Ackerman, 831 F.3d

1292, 1307 (10th Cir. 2016). Although these two theo-

ries come at the Fourth Amendment question from dif-

ferent angles, they both address the circumstances

under which the Fourth Amendment protects a person

from warrantless, police conduct. Only now, since

United States v. Jones® and Jardines, has the trespass

basis of Fourth Amendment protection reemerged as

an intact theory of Fourth Amendment protection — an

interpretation that has substance and meaning, inde-

pendent of Katz.

And therein lies the problem with the Virginia Su-

preme Court’s approach. The automobile exception did

® See 565 U.S. 400 (2012).

not begin its journey as a per se, warrant exception.

See infra Section II. As originally articulated, this war-

rant exception required consideration, either explicitly

or implicitly, of exigency to justify law enforcement’s

warrantless, probable cause-based search of a vehicle.

See infra Sections II, I1.A. After Katz, however, the

Court recognized that there were commonalities in-

volving vehicle travel that supported a per se, warrant

exception for the probable cause-based search of a ve-

hicle, based upon generalizations regarding drivers’ re-

duced expectation of privacy in vehicles and their

public travels. See id. But it must not be forgotten that

the original view of the automobile exception was dif-

ferent.

Amici argue that the Fourth Amendment does not

support mechanically applying a per se, Katz-based

warrant exception to a traditional, trespass-based

search and seizure. To do so would erode the “irreduci-

ble constitutional[ly] minimum” protection guaranteed

under the Fourth Amendment’s original meaning. Cf

Jones, 565 U.S. at 414 (Sotomayor, J., concurring). In

addition to producing the constitutional violation in

this case, the Virginia Supreme Court’s approach is

problematic because it unnecessarily re-injects Katz

into the Fourth Amendment’s traditional interpreta-

tion. See Jardines, 569 U.S. at 11 (majority opinion)

(“One virtue of the Fourth Amendment’s property-

rights baseline’ [i.e., over the Katz test] is that it keeps

easy cases easy.”); see infra Sections I, I.A. This case

’ See Jardines, 569 U.S. at 11 (describing the trespass analy-

sis as “the Fourth Amendment’s property-rights baseline . . . .”).

presents the Court with a critical crossroad because

the outcome could signal whether the trespass-based

interpretation of the Fourth Amendment retains its

post~Jardines’s vitality — independent of Katz’s privacy-

expectations test — or, instead, whether Jardines’s

property-rights baseline is destined to become re-sub-

sumed within Katz’s system of privacy-based warrant

exceptions.

I. AFourth Amendment “Search” Occurs When

the Government’s Warrantless Conduct Ei-

ther Infringes On a Reasonable Expectation

of Privacy Or Involves a Physical Intrusion

(a Trespass) On a Constitutionally Protected

Area to Perform an Investigation.

The Fourth Amendment guarantees “[t)he right of

the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and sei-

zures. .. .” U.S. Const. amend. IV. As originally inter-

preted, the Fourth Amendment’s protections were tied

to common-law trespass, and were limited to those ar-

eas enumerated in the Fourth Amendment itself. See

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

man v. United States, for example, the Court rejected

as violating the Fourth Amendment the government’s

use of a “spike mike” — which was inserted “several

inches into a party wal!” until it touched a heating duct

— to eavesdrop on the onversations of the premises’

occupants. 365 U.S. 505, 506, 509-10 (1961) (emphasiz-

ing that the police investigation had been accomplished

by an “unauthorized physical encroachment within a

constitutionally protected area,” which was “beyond

the pale” of earlier cases involving non-trespassory

eavesdropping). And, for many years, the trespass the-

ory was the “exclusive basis” for obtaining Fourth

Amendment protection. Jardines, 569 U.S. at 5.

However, the trespass model proved inadequate in

an increasing number of circumstances. Technology

made it possible for police to intrude on a person’s pri-

vacy without a predicate physical trespass. The Court

responded to these changing societal circumstances in

its pathmarking decision, Katz v. United States, declar-

ing there that the Fourth Amendment “protects people,

not places.” 389 U.S. at 351 (“What a person knowingly

exposes to the public, even in his own home or office, is

not a subject of Fourth Amendment protection.”). In so

holding, Katz expanded the reach of Fourth Amend-

ment protections to include warrantless police investi-

gation that intruded upon a person’s “constitutionally

protected reasonable expectation of privacy.” See id. at

360 (Harlan, J., concurring); United States v. United

States District Court, 407 U.S. 297, 313 (1972) (“Our

decision in Katz refused to lock the Fourth Amendment

into instances of actual physical trespass.”). For dec-

ades after Katz, the Court determined whether a place

or a person’s possessions or activities received Fourth

Amendment protection based upon the reasonableness

of the person’s privacy expectation in that place, thing,

or activity. See, e.g., Bond v. United States, 529 U.S. 334,

338-39 (2000) (finding an objectively reasonable expec-

tation of privacy in a bus passenger’s carry-on luggage

— which was located in an overhead bin — because the

agent palpated the bag in an “exploratory manner”

that was more probing than other passengers would

have touched the luggage).

Yet, the Katz test produced its own set of chal-

lenges. Katz’s privacy-expectations test was criticized

for its lack of an objective yardstick by which to meas-

ure whether a person’s privacy expectations were rea-

sonable. See Kyllo, 533 U.S. at 34 (“The Katz test ...

has often been criticized as circular, and hence subjec-

tive and unpredictable.”); see also Jones, 565 U.S. at

427 (Alito, J., concurring in judgment) (“(J]udges are

apt to confuse their own expectations of privacy with

those of the hypothetical reasonable person to which

the Katz test looks.”). Further, Katz’s adoption of a per

se warrant requirement*® led the Court to develop

thereafter an “intricate body of law regarding ‘reason-

able expectation of privacy’” as a means of defining

the Fourth Amendment’s various warrant exceptions.

See California v. Acevedo, 500 U.S. 565, 582-83 (1991)

(Scalia, J., concurring in judgment) (“The victory lof a

warrant requirement] was illusory. Even before today’s

decision, the ‘warrant requirement’ had become so rid-

dled with exceptions that it was basically unrecogniza-

ble.”).

° See Katz, 389 U.S. at 357 (“[Sjearches conducted outside the

judicial process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment — subject

only to a few specifically established and well delineated excep-

tions.”) (footnote omitted).

And, more importantly, Katz arguably failed to ad-

equately protect against the very police conduct that

gave rise to the Fourth Amendment — warrantless po-

lice trespass. In United States v. Jones, decided in 2012,

the Court considered whether the government violated

the Fourth Amendment when it installed, without a

warrant, a Global-Positioning-System (GPS) tracking

device onto the undercarriage of Jones’s vehicle and

used the device to monitor the car’s movements for

twenty-eight days. See 565 U.S. at 403 (majority opin-

ion) (explaining also that a vehicle is an “effect” for

Fourth Amendment purposes). The government in

Jones argued that no warrant was required because,

under Katz, Jones lacked an expectation of privacy in

both the undercarriage of his vehicle and the vehicle’s

movements as it traveled on the open road. See id. at

406. But the Court refused to apply the Katz test,

choosing instead to base its analysis on the warrant-

less, governmental trespass that made the GPS-track-

ing possible in the first place. See id. (“But we need not

address the Government’s contentions |i.e., that Katz

was not violated], because Jones’s Fourth Amendment

rights do not rise or fall with the Katz formulation.”).

Rather than applying Katz, Jones instead held

that the Fourth Amendment had been violated under

the traditional, trespass basis of Fourth Amendment

protection. See id. at 404-05 (“The Government physi-

cally occupied private property for the purpose of

obtaining information. We have no doubt that such

a physical intrusion would have been considered a

‘search’ within the meaning of the Fourth Amendment

when it was adopted.”). As Justice Sotomayor explained

in her separate Jones concurrence, the trespass test

reflected “an irreducible constitutional minimum:

When the Government physically invades personal

property to gather information, a search occurs.” Jd. at

414 (Sotomayor, J., concurring) (emphasis added). She

argued that applying Katz would “erode[| that long-

standing protection ... .” Jd.

In Jardines, the Court elaborated on the trespass

basis of Fourth Amendment protection. 569 U.S. 1

(2013). There, and without a warrant, police brought a

drug-detection dog onto a home’s curtilage — specifi-

cally, the home’s front porch — in order to perform a

drug-detection sniff of the air at the base of the front

door. Id. at 4. Jardines described the case as “a straight-

forward one,” and rejected the warrantless canine sniff

as violating the Fourth Amendment because:

The officers were gathering information in an

area belonging to Jardines and immediately

surrounding his house — in the curtilage of the

house, which we have held enjoys protection

as part of the home itself. And they gathered

that information by physically entering and

occupying the area to engage in conduct not

explicitly or implicitly permitted by the home-

owner.

Id. at 5-6.

Jardines is also important because it illustrates

the potential for disagreement in a case’s outcome,

depending on whether a court applies the trespass

test or, instead, Katz. Justice Scalia, writing for the

Jardines majority, declined to apply Katz and con-

cluded that, based upon a trespass analysis, the Fourth

Amendment is violated “when the government uses a

physical intrusion to explore details of the home (in-

cluding the curtilage)... .” See id. at 11. Justice Kagan

concurred to offer the observation, on behalf of two

other Justices, that the outcome in Jardines would

have been the same — i.e., that the warrantless canine

sniff violated the Fourth Amendment — under both the

trespass test and Katz. See id. at 12-13, 16 (Kagan, J.,

concurring) (“The Court today treats this case under a

property rubric; I write separately to note that I could

just as happily have decided it by looking to Jardines’

privacy interests. A decision along those lines would

have looked . . . well, much like this one.”).

Justice Alito, on the other hand, dissented on be-

half of three other Justices, to express his disagree-

ment with the majority’s use of a trespass analysis. See

id. at 23 (Alito, J., dissenting) (“While the Court claims

that its reasoning has ‘ancient and durable roots,’ its

trespass rule is really a newly struck counterfeit.”).

And, important here, Justice Alito also disagreed with

the concurrence’s interpretation of Katz, in which Jus-

tice Kagan concluded that the Fourth Amendment was

violated because Jardines had a reasonable expecta-

tion of privacy in the odors emanating from under his

door. See id. at 24-25. Like the concurrence, Justice

Alito applied Katz but found no Fourth Amendment vi-

olation because, he argued, “[a] reasonable person un-

derstands that odors emanating from a house may be

detected from locations that are open to the public. . . .”

See id. at 17.

Therefore, the Fourth Amendment model used has

consequences, some of which are pragmatic. Katz’s

privacy-expectations analysis is necessarily less black-

and-white than the trespass test because Katz seeks to

measure the privacy expectations of the “reasonable

person” in the myriad of factual situations that lower

courts consider every day. The pragmatic risk in apply-

ing a Katz-based doctrine to a classic trespassory

search would be to open the door to the “thorny prob-

lems” inherent in Katz. See Jones, 565 U.S. at 412 (ma-

jority opinion). More importantly, the constitutional

risk would be to expand the lawful bases for warrant-

less police entry beyond those permitted at common

law. See Steagald, 451 U.S. at 211. Additionally, the

outcome in this case could signal whether the trespass

basis of Fourth Amendment protection retains its post-

Jardines’s vitality or, instead, becomes re-subsumed,

as a factor, into the Katz test.

A. Katz-Based Doctrines Should Be Reex-

amined in Light of United States v. Jones

and Florida v. Jardines When Those Doc-

trines Undermine the Trespass Test’s In-

terpretation of Fourth Amendment

Protection.

Importing Katz-based doctrines and warrant ex-

ceptions into trespass-based search-and-seizure cases

risks “erod|ing] that longstanding protection” embod-

ied in the traditional interpretation of the Fourth

Amendment. Cf Jones, 565 U.S. at 414 (Sotomayor, J.,

concurring). Courts are only now beginning to consider

the potential impact of United States v. Jones and Flor-

ida v. Jardines on existing Katz-based, Fourth Amend-

ment caselaw. A case that considers this potential

conflict is United States v. Ackerman, 831 F.3d 1292

(10th Cir. 2016). There, Judge — now Justice — Gorsuch,

writing for a panel of the U.S. Tenth Circuit Court of

Appeals, considered the impact of Jones on a Katz-

based, warrant exception, known as the private search

doctrine. See id. at 1307-08 (citing United States v. Ja-

cobsen, 466 U.S. 109 (1984)).

The private search doctrine, in essence, stands for

the proposition that a warrant is not required when

the government searches an item whose contraband or

criminal nature was uncovered through a private ac-

tor’s search and then revealed to the government, and

the government, in its later warrantless search, does

not exceed the scope of the private actor’s search. See

Jacobsen, 466 U.S. at 117 (“Once frustration of the

original expectation of privacy occurs, the Fourth

Amendment does not prohibit governmental use of the

now-nonprivate information ....”). Jacobsen consid-

ered whether the warrantless search of a Drug En-

forcement Administration (DEA) agent violated the

Fourth Amendment when that agent was called in by

Federal Express after its employees opened a damaged

mailing parcel and discovered that it contained plastic

bags filled with a white powder. Jd. at 111-12. Specifi-

cally, Jacobsen considered whether the agent exceeded

the scope of Federal Express’s private search either be-

cause (1) the agent re-exposed the plastic bags from

their mailing container (where Federal Express’s em-

ployees had returned them prior to the agent’s arrival),

or (2) the agent’s removal and destruction of a small

amount of powder from the plastic bags in order to field

test the suspected contraband. See id. (“A field test

made on the spot identified the substance as cocaine.”).

On the first question, Jacobsen held that, in re-un-

wrapping the mailing parcel’s contents, the agent did

not exceed the scope of Federal Express’s private

search of the package’s contents. Jd. at 120. On the

warrantless field testing, Jacobsen also held that the

private search doctrine was not violated (even though

Federal Express had not tested the white powder) be-

cause the field test revealed no information aside from

the fact that the powder was cocaine — information for

which a person lacks a legitimate expectation of pri-

vacy. See id. at 123. Important here, Jacobsen acknow!-

edged that the field test destroyed the powder used in

the test, but concluded that the field testing was nev-

ertheless reasonable because it had “only a de minimis

impact on any protected property interest.” See id. at

125 (“[Blecause only a trace amount of material was

involved, the loss of which appears to have gone unno-

ticed by respondents, and since the property had al-

ready been lawfully detained ... |,)” the warrantless

field testing was reasonable when weighed against the

government’s interest in detecting drug crimes).

And this is where Jacobsen — in particular, Jacob-

sen’s destruction-of-private-property justification — in-

tersects with Ackerman. In Ackerman, the defendant

sent an email, which included four attachments, one of

which triggered his internet service provider’s hash-

value filter for child pornography. 831 F.3d at 1293.

Without opening the email or its attachments, the in-

ternet service provider (here, AOL) forwarded the sus-

picious email and attachments to the National Center

for Missing and Exploited Children (NCMEC). Id. A

NCMEC analyst opened the email and all four attach-

ments, and confirmed that all four attachments con-

tained child pornography. Jd. After his indictment on

child pornography charges, the defendant filed a mo-

tion to suppress the child pornography, which was de-

nied, and he appealed. Id. at 1294.

The government in Ackerman argued that Jacob-

sen controlled because, like the field testing of the

white powder in Jacobsen, NCMEC’s inspection of the

defendant’s email and attachments could reveal no

noncontraband information. See id. at 1306. The Tenth

Circuit rejected this argument, however, finding Jacob-

sen inapplicable because NCMEC had clearly exceeded

the scope of AOL’s private search — i.e., NCMEC both

opened the defendant’s email and its attachments and

examined them, while AOL had done neither. Jd. at

1305-06.

Important here, the Tenth Circuit also expressed

reservations about relying on Jacobsen in any event,

because that case’s very foundation had been poten-

tially undermined by United States v. Jones. See id. at

1307. As the court in Ackerman explained:

Reexamining the facts of Jacobsen in light of

Jones, it seems at least possible the Court to-

day would find that a ‘search’ did take place

there. After all, the DEA agent who performed

the drug test in Jacobsen took and destroyed

a ‘trace amount’ of private property, a seeming

trespass to chattels. ... Given the uncertain

status of Jacobsen after Jones, we cannot see

how we might ignore Jones’s potential impact

on our case.

Id. (quoting Jacobsen, 466 U.S. at 125) (citation omit-

ted).

The question, then, is whether a Katz-based, war-

rant exception, such as the automobile exception, see

infra Sections II, I1.A., can be used to expand the con-

stitutional bases for warrantless police entry onto a

home’s curtilage — i.e., beyond those involving consent

(express or implied), exigent circumstances, or a war-

rant.* Amici argue that it must not. As in Ackerman,

® See Steagald, 451 U.S. at 211 (“The search at issue here

took place in the absence of consent or exigent circumstances. Ex-

cept in such special situations, we have consistently held tha. the

entry into a home to conduct a search or make an arrest is

Jones and Jardines have “potential|ly] impactied]”"®

the Virginia Supreme Court’s conclusions regarding

the scope of the automobile exception. Cf Collins, 790

S.E.2d at 616-18. Amici urge the Court to find that,

based upon the automobile exception’s per se basis —

i.e., this exception’s “bright-line” authorization" of

warrantless, probable cause-based police power — the

warrantless search of a vehicle located, parked and un-

attended, within a home’s curtilage violates the tres-

pass model of Fourth Amendment protection.

Il. Neither United States v. Jones Nor Florida

v. Jardines Signal That the Automobile Excep-

tion - a Per Se, Katz-Based Warrant Excep-

tion - Can Trump the Fourth Amendment’s

Traditional Baseline of Protection Under

the Trespass Test.

Based upon the automobile exception to the

Fourth Amendment’s warrant requirement, police may

stop and search a vehicle without obtaining a warrant

if they have probable cause to believe the vehicle con-

tains contraband. See United States v. Ross, 456 U.S.

798, 807-09 (1982). The exception was originally justi-

fied by a vehicle’s ready mobility. See Carroll v. United

States, 267 U.S. 132, 153 (1925) (observing that “prac-

tically since the beginning of the government,” the

Court has recognized a difference between a search of

unreasonable under the Fourth Amendment unless done pursu-

ant to a warrant.”).

" See Collins, 790 S.E.2d at 618.

a “dwelling house or other structure” where “a proper

official warrant readily may be obtained” and the

search of an automobile “where it is not practicable to

secure a warrant, because the vehicle can be quickly

moved out of the locality or jurisdiction . . . .”). Prior to

Katz, however, the practicability (or the lack thereof )

of obtaining a warrant remained an important consid-

eration. See Carroll, 267 U.S. at 156. In fact, Carroll

expressly instructed courts to determine whether the

facts — i.e., the impracticability of obtaining a warrant

~— supported the warrantless, vehicle search. See id.. As

Carroll explained:

In cases where the securing of a warrant is

reasonably practicable, it must be used and

when properly supported by affidavit and is-

sued after judicial approval protects the seiz-

ing officer against a suit for damages. In cases

where seizure is impossible except without

warrant, the seizing officer acts unlawfully

and at his peril unless he can show the court

probable cause.

Id. (emphasis added).

After Katz, however, the automobile exception

came to be supported by additional justifications — jus-

tifications arising from society’s reduced expectations

of privacy in vehicles and vehicle travel. See California

v. Carney, 471 U.S. 386, 391 (1985) (“[A]lthough ready

mobility alone was perhaps the original justification

for the vehicle exception, our later cases have made

clear that ready mobility is not the only basis for the

exception.”). As Carney explained, society’s reduced

expectations of privacy in vehicles were additionally

based on “plain view” considerations — i.e., the ease of

seeing into the passenger compartment of most vehi-

cles, and because “pervasive schemes of [vehicle] regu-

lation” made periodic vehicle stops “‘an everyday

occurrence... .’” See id. at 391-92 (quoting South Da-

kota v. Opperman, 428 U.S. 364, 368 (1976)). In two per

curiam opinions, the Court made clear and reiterated

that the automobile exception “has no separate exi-

gency requirement.” See Maryland v. Dyson, 527 U.S.

465, 466-67 (1999) (“And under our established prece-

dent, the ‘automobile exception’ has no separate exi-

gency requirement. We made this clear in United

States v. Ross, 456 U.S. 798, 809 (1982).”); Pennsylvania

v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (“More

recent cases provide a further justification: the individ-

ual’s reduced expectation of privacy in an automo-

bile. ... If a car is readily mobile and probable cause

existe ‘o believe it contains contraband, the Fourth

Amendment thus permits police to search the vehicle

without more.”) (citation omitted).

A. The Automobile Exception Evolves, Af-

ter Katz, into a Per Se Warrant Excep-

tion.

The Court’s post-Carroll (but pre-Katz), vehicle-

search decisions reveal that genuine, case-specific

exigency existed in those cases where a warrantless

vehicle search was justified under the automobile

exception. Those cases focused on, for the most

part, whether probable cause existed to support the

warrantless vehicle search at issue, not the reasona-

bleness of law enforcement’s decision to dispense with

seeking a search warrant.

In each case where the warrantless vehicle search

was upheld, the exigency at the scene of the vehicle

stop was apparent. Compare, e.g., Brinegar v. United

States, 338 U.S. 160, 163, 175-76 (1949) (upholding,

based on probable cause to believe the defendant was

transporting illegal liquor in his vehicle, a warrantless

vehicle search which occurred at the roadside after a

one-mile police chase in which the agents had to phys-

ically force the defendant's vehicle off the road); Scher

v. United States, 305 U.S. 251, 254-55 (1938) (uphold-

ing, based on probable cause to believe the defendant

was transporting illegal liquor in his vehicle, a war-

rantless vehicle search which occurred after law en-

forcement tailed the defendant’s vehicle until he pulled

into his garage because “|plassage of the car into

the open garage closely followed by the observing of-

ficer did not destroy this right [i.e., of a warrantless

search].”); Husty v. United States, 282 U.S. 694, 701

(1931) (upholding, based on probable cause to believe

the defendant was transporting intoxicating liquor in

his vehicle, a warrantless vehicle search which oc-

curred at the roadside after two of the vehicle’s occu-

pants fled from the vehicle-stop scene), with Preston v.

United States, 376 U.S. 364, 367-68 (1964) (rejecting

the validity of a warrantless stationhouse search of

the arrestee’s vehicle as either a search incident to ar-

rest or a probable cause-based search, because “there

was no danger that any of the men arrested could have

used any weapons in the car or could have destroyed

any evidence of a crime ... .”). Even in Cooper v. Cali-

fornia, a case decided just months before Katz, law en-

forcement’s warrantless stationhouse search of the

arrestee’s impounded vehicle (which took place a week

after his arrest) was justified on more than simply

probable cause. 386 U.S. 58, 58, 61-62 (1967) (“It would

be unreasonable to hold that the police, having to re-

tain the car in their custody for such a length of time

li.e., the four-month period involved in the vehicle-for-

feiture proceeding], had no right, even for their own

protection, to search it.”).

It was only after Katz — after the reduced privacy

expectation associated with vehicles was factored into

the warrant-exception analysis — that the automobile

exception hardened into the per se warrant exception

for which is it now known. See Ross, 456 U.S. at 809

(finding that, based on Carroll, a probable cause-based,

vehicle search satisfied the automobile exception,

“even though a warrant has not been actually ob-

tained.”). In fact, even in the early years after Katz was

decided, the Court continued to recognize that Carroll

had treated the existence of case-specific exigency as

a consideration in justifying a warrantless vehicle

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

462-63 (1971) (plurality opinion) (finding that the au-

tomobile exception, under Carroll, was inapplicable to

a warrantless search of the defendant’s vehicle located,

parked and unattended, in his driveway — explaining

that “by no possible stretch of the legal imagination

can this be made into a case where it is not practicable

to secure a warrant, and the automobile exception,

despite its label, is simply irrelevant.”) (internal quo-

tation marks and citation omitted); Chambers v.

Maroney, 399 U.S. 42, 50 (1970) (“Neither Carroll, su-

pra, nor other cases in this Court require or suggest

that in every conceivable circumstance the search of an

auto even with probable cause may be made without

the extra protection for privacy that a warrant af-

fords.”). And in Chambers, the generalization of Car-

roll’s exigency justification can be seen to emerge. See

Chambers, 399 U.S. at 50-51 (observing that a probable

cause-based search of a “readily movable” vehicle was

“most often unforeseeable”).

Later, in Ross, the automobile exception completed

its journey. To support its conclusion that the automo-

bile exception was a per se warrant exception, Ross re-

viewed Carroll’s facts, reasoning, and justifications.

See Ross, 456 U.S. at 804-09. Important here, Ross re-

cast Carroll’s discussion of its proposed warrant excep-

tion — i.e., in which Carroll explained that law

enforcement must obtain warrants for vehicle searches

when “reasonably practicable,” see Carroll, 267 U.S. at

156 — into, instead, a statement of the more general,

Fourth Amendment proposition that a warrant excep-

tion is an “exception to the general rule that in cases

where the securing of a warrant is reasonably practi-

cable, it must be used .. . .” See Ross, 456 U.S. at 807

(internal quotation marks omitted). Notwithstanding

this assertion about Carroll’s rationale, other language

in Ross arguably acknowledged that the warrant ex-

ception in Carroll had been justified on case-specific

exigency. See id. at 806-07 (recounting Carroll’s facts and

explaining that “[gliven the nature of an automobile in

transit,” Carroll recognized that a warrant exception

for the probable cause-based search of a vehicle was

not, “liJn this class of cases,” unreasonable) (emphasis

added).

Ross’s reinterpretation of Carroll did not go unno-

ticed, however. Justice Marshall, in his Ross dissent,

argued that Carroll had not established the per se war-

rant exception that the Ross majority had claimed. See

Ross, 456 U.S. at 836 (Marshall, J., dissenting) (“The

Court [in Carroll] did not, however, suggest that ob-

taining a warrant for the search of an automobile is

always impracticable.”). Justice Brennan joined in Jus-

tice Marshall’s dissent in Ross, see id. at 827, and Jus-

tice White noted in his separate Ross dissent that he

“agree|d] with much of Justice Marshall’s dissent in

this case.” Jd. at 826 (White, .!., dissenting).

Two important conclusions flow from the automo-

bile-exception jurisprudence. First, the »utomobile ex-

ception, as originally framed, was ut the per se

warrant exception that the modern Court now contem-

plates. Second, the modern interpretation of the auto-

mobile exception — which is based, in large part, on

Katz’s reduced-privacy-expectations analysis — does

not support a per se warrant exception in cases where

a vehicle is located, parked and unattended, within a

home’s curtilage.

Ill. The Automobile Exception Does Not Auto-

matically Apply to the Search of an Unat-

tended Vehicle Parked Within a Home’s

Curtilage.

Warrantless police entry into the home is the

“chief evil” against which the Fourth Amendment was

intended to prevent. United States District Court, 407

U.S. at 313; see United States v. Martinez-Fuerte, 428

U.S. 543, 561 (1976) (observing that “the sanctity of pri-

vate dwellings [is] ordinarily afforded the most strin-

gent Fourth Amendment protection.”). The Fourth

Amendment’s protections also extend to a home’s cur-

tilage. Oliver, 466 U.S. at 180 (describing the common

law’s distinction between “open fields” and “curtilage,”

and observing that “only the curtilage, not the neigh-

boring open fields, warrants the Fourth Amendment

protections that attach to the home.”). Oliver explained

that curtilage was “the area to which extends the inti-

mate activity associated with the ‘sanctity of a man’s

home and the privacies of life.’” Jd. (quoting Boyd v.

United States, 116 U.S. 616, 630 (1886)).

In California v. Ciraolo, the Court described the

protection afforded to the curtilage as “essentially a

protection of families and personal privacy in an area

intimately linked to the home, both physically and psy-

chologically, where privacy expectations are most

heightened.” 476 U.S. 207, 213 (1986). And, more re-

cently, the Court reaffirmed that a home’s curtilage

“enjoys protection as part of the home itself.” Jardines,

569 U.S. at 6 (“This right [i.e., to retreat into one’s

home and be free from unreasonable governmental

intrusions] would be of little practical value if the

State’s agents could stand in a home’s porch or side

garden and trawl for evidence with impunity. . . .”).

The Virginia Supreme Court, in this case, con-

cluded there was no need to determine whether the of-

ficer had entered onto the home’s curtilage because it

held that the automobile exception supported the of-

ficer’s warrantless entry to perform the physical inves-

tigation of Petitioner’s tarp-covered motorcycle. See

Collins, 790 S.E.2d at 619 (“Collins argued that the au-

tomobile exception does not apply to a vehicle parked

in a private driveway. The trial court did not consider

this question, but the Court of Appeals addressed the

issue and appeared to agree with Collins.”). Important

here, the Virginia Supreme Court in Collins also con-

cluded that warrantless police entry to search a vehicle

located on private property that was “open to the pub-

lic” — such as a home’s driveway — did not violate the

Fourth Amendment. See id. at 619 (quoting Thims uv.

Commonwealth, 235 S.E.2d 443, 447 (Va. 1977)).

A. An Area That Is “Open to the Public”

Can Receive Fourth Amendment Protec-

tion as Part of a Home’s Curtilage.

The Court determines whether Fourth Amend-

ment protection is afforded to private property depend-

ing on whether the property is an “open field” — in

which case it receives no protection from warrantless

police entry — or is, instead, a home or its associated

curtilage (which receives Fourth Amendment protec-

tion). See Jardines, 569 U.S. at 6 (“[W)hen it comes to

the Fourth Amendment, the home is first among

equals.”). With that said, there is no “private driveway”

exception that withholds Fourth Amendment protec-

tion simply because a home’s driveway is often open to

public view or is physically accessible to the public. In

fact, after Jardines we now know that an area can be

both “open to the public” and curtilage. See id. at 7

(“The front porch is the classic exemplar of an area ad-

jacent to the home and to which the activity of home

life extends.”) (internal quotation marks omitted).

Therefore, the Virginia Supreme Court erred in with-

holding Fourth Amendment protection from an area

that was closely adjacent to, and intimately connected

with, Petitioner’s girlfriend’s suburban home on the

basis that the area could be seen, or was physically ac-

cessible from, the street.'* See Jardines, 569 U.S. at 7

(“[T]he conception defining the curtilage is at any rate

2 Justice Mims, in his Collins dissent, described the location

of Petiticner’s parked, tarp-covered motorcycle as being “merely

feet . .. from the side perimeter wall of the house.” Collins IT, 790

S.E.2d at 623 n.4 (Mims, J., dissenting). Specifically, the motorcy-

cle was parked on a portion of the driveway that extended beyond

the direct route to the front door. See id. (emphasis added) (“[T]he

driveway extends past the house, running alongside it after the

front yard ends, and continues well beyond the front porch and

front door to allow vehicles to be parked beside the house.”). The

Virginia Court of Appeals “assume/(d] without deciding” that Peti-

tioner’s motorcycle was parked within the home’s curtilage at the

time of the officer’s entry and physical investigation. See Collins

v. Commonwealth, 773 S.E.2d 618, 623 (Va. Ct. App. 2015).

familiar enough that it is easily understood from our

daily experience.”) (internal quotation marks omitted).

But that does not end the matter. To interact with

a home’s occupants, a police officer may, without a war-

rant, enter a home’s curtilage via a direct pathway to

the front door — i.e., the front walkway or, if none, the

driveway — to engage the home’s occupants. See id. at

19, 21 (Alito, J., dissenting) (observing that an implied

license “has certain spatial and temporal limits. A vis-

itor must stick to the path that is typically used to ap-

proach a front door, such as a paved walkway. A visitor

cannot... take other circuitous detours that veer from

the pathway that a visitor would customarily use.”); see

also id. at 8 (majority opinion) (“This implicit license

typically permits the visitor to approach the home by

the front path, knock promptly, wait briefly to be re-

ceived, and then .. . leave.”).

Therefore, Jardines limits an officer’s authority in

critical ways. First, Jardines limits the officer’s author-

ity to stray from the home’s front-door pathway onto

other curtilage areas. See id. at 9 (majority opinion)

(“The scope of a license — express or implied — is limited

not only to a particular area but also to a specific pur-

pose.”). Second, even if the officer sticks to the home’s

front-door pathway — i.e., the curtilage area an officer

passes along or occupies in order to conduct a “knock

and talk” encounter with the home’s occupants” — the

See id. at 21 (Alito, J., dissenting) (discussing law enforce-

ment’s authority to perform a warrantless “knock and talk” en-

counter with a home’s occupants, and explaining that a visitor's

officer is not permitted to investigate or gather infor-

mation. See id. at 7 (majority opinion) (“[A)n officer’s

leave to gather information is sharply circumscribed

when he steps off those [public] thoroughfares and

enters the Fourth Amendment’s protected areas.”); see

also id. at 9 n.3 (arguing that even if police “stay on the

base path, to use a baseball analogy”— i.e., approach

the home’s front door by the direct, front-door pathway

— police are not permitted to “gather| | evidence” with-

out a warrant).

So, Jardines imposes a categorical prohibition on

warrantless police investigation within a home’s curti-

lage (aside from speaking with the home’s occupant)

and, additionally, restrains officers from detouring

from the home’s front-door pathway. Put another way,

the Fourth Amendment protects the curtilage of a

home from warrantless police investigation, even if

that area is physically accessible to law enforcement in

performing a lawful “knock and talk” — i.e., the area

encompassing a home’s front-door pathway as well

as the front door itself — or that the area is visually

accessible to the officer, either from the officer’s lawful

vantage point on the street or as that vantage point

shifts due to the officer’s lawful travel to the front door.

See id. (emphasizing that the visual observation of

the home’s curtilage in Ciraolo “was done in a physi-

cally nonintrusive manner”) (internal quotation marks

omitted).

“implied license to approach the front door [also] extends to the

police”).

B. The Trespass Basis of Fourth Amend-

ment Protection Was Violated by the Of-

ficer’s Detour from the Direct Path to

the Front Door and Physical Search of

Petitioner’s Tarp-Covered Motorcycle.

By disturbing the tarp to view the motorcycle’s Ve-

hicle Identification Number (VIN), the officer in this

case engaged in an “investigation” within the meaning

of Jardines. See Jardines, 569 U.S. at 9 (“To find a vis-

itor knocking on the door is routine (even if sometimes

unwelcome); to spot that same visitor exploring the

front path with a metal detector, or marching his

bloodhounds into the garden . . . would inspire most of

us to — well, call the police.”). Regardless of whether

the motorcycle was parked on the direct, front-door

pathway (it was not) or within the home’s curtilage but

beyond the home’s direct, front-door pathway (it was),

Jardines prohibits the officer’s warrantless physical

investigation of Petitioner’s tarp-covered motorcycle.

To put it differently, regardless of whether the tarp-

covered motorcycle was physically accessible to the

officer as he stood on the home’s direct, front-door

pathway or was, instead, simply visually accessible to

the officer from either his vantage point on the street

or while traversing the home’s direct, front-door path-

way, Jardines prohibits the officer’s warrantless phys-

ical investigation of the motorcycle in either event. Cf

id. at 9 n.4 (distinguishing the lawfully conducted

“knock and talk” at issue in Kentucky v. King, 563 U.S.

452 (2011), and observing “[bjut no one is impliedly

invited to enter the protected premises of the home in

order to do nothing but conduct a search.”).

1. The Officer’s Warrantless Investiga-

tion of Petitioner’s Motorcycle Is Not

Saved by New York v. Class, United

States v. Jacobsen, or the Plain View

Doctrine.

The officer’s physical investigation of Petitioner’s

motorcycle is not saved by the Court’s holding in New

York v. Class, 475 U.S. 106 (1986). In Class, the Court

considered whether the Fourth Amendment was vio-

lated when a traffic officer reached his hand into the

passenger compartment of a lawfully stopped vehicle

to shift papers on the vehicle’s dashboard that ob-

structed the officer’s view of the vehicle’s VIN. See id.

at 107-08. Although Class held that the officer’s phys-

ical entry into the vehicle was a “search,” see id. at 115,

the Court found the search to be reasonable for two

reasons. First, Class explained that drivers lack a rea-

sonable expectation of privacy in their vehicles’ VIN.

Id. at 119. Second, and important here, Class’s vehicle

had been lawfully seized at the traffic stop. Id. (justify-

ing the search, in part, on “the fact that the officers

observed [Class] commit two traffic violations.”). In

contrast to Class, the investigating officer in this case

violated Jardines in conducting his warrantless entry

to investigate the motorcycle’s VIN. Therefore, even

though Class also involved an investigation of a vehi-

cle’s VIN, Class does not excuse the officer’s unlawful

entry onto the home’s curtilage to investigate and view

Petitioner’s motorcycle’s VIN.

Nor is the officer’s warrantless entry and investi-

gation saved by United States v. Jacobsen, 466 U.S. 109

(1984). See supra Section 1.A. Jacobsen justified up-

holding the agent’s warrantless field test, in part, on

the fact that the field test disclosed no noncontraband

information — i.e., only whether the white powder was

cocaine, but nothing else. Jacobsen, 466 U.S. at 122. As

to the field test’s disclosure of the contraband nature

of the white powder, Jacobsen explained that a person

lacks a legitimate expectation of privacy in contra-

band. Id.

Here again, however, the lawfulness of the police

conduct prior to the field testing was key to Jacobsen’s

decision to uphold the warrantless field test. To ex-

plain, Jacobsen viewed the agent’s conduct as involv-

ing “two steps.” See id. at 118. The first step concerned

the agent’s warrantless re-unwrapping of the mailing

container’s contents, which Jacobsen upheld under the

private search doctrine. Jd. at 120. Based upon the law-

fulness of that threshold search, Jacobsen proceeded,

in the second step, to determine the reasonableness of

the warrantless field testing. See id. at 122-23, 125; see

supra Section L.A.

This case is quite different from the searches in

Jacobsen. Here, the officer's warrantless physical in-

vestigation of Petitioner's tarp-covered motorcycle

was made possible only by a Fourth Amendment viola-

tion — i.e., violation of the trespass basis of Fourth

Amendment protection under Jardines. Further, un-

like the field testing in Jacobsen, the physical search

of Petitioner’s tarp-covered motorcycle was capable of

revealing noncontraband information. Compare id. at

122 (“[The field test] could tell [the agent! nothing more,

not even whether the substance was sugar or talcum

powder.”), with Ackerman, 831 F.3d at 1306-07 (posing

the question, in dicta, of whether NCMEC’s search of

the defendant’s email and attachments risked expos-

ing noncontraband information because, among other

reasons, AOL’s hash-value match could have been mis-

taken); see supra Section I.A. In this case, there was no

way for the officer to know in advance whether addi-

tional private and protected facts —i.e., a child’s bicycle

helmet — was also concealed under the tarp.

Further, the officer's warrantless entry and search

of Petitioner’s motorcycle is not saved by the plain view

doctrine. The plain view doctrine authorizes a police

officer, under certain circumstances, to seize contra-

band or an evidentiary item without a warrant when

that contraband or item is plainly visible to the police

officer. See Coolidge, 403 U.S. at 465. Those circum-

stances include, first, that the officer must observe the

contraband or item from a lawful vantage point. See

Horton v. California, 496 U.S. 128, 137 (1990) (“It is, of

course, an essential predicate to any valid warrantless

seizure of incriminating evidence that the officer did

not violate the Fourth Amendment in arriving at the

place from which the evidence could be plainly seen.”).

Second, the item’s “incriminating character must .. .

be immediately apparent,” see id. (internal quotation

marks omitted), without the officer’s manipulation of

the item. See Arizona v. Hicks, 480 U.S. 321, 325 (1987)

(“T]he distinction between looking at a suspicious ob-

ject in plain view and moving it even a few inches is

much more than trivial for purposes of the Fourth

Amendment.”) (internal quotation marks omitted). Im-

portant here, the item’s incriminating character is not

considered to be “immediately apparent” if “some fur-

ther search of the object” was conducted to confirm the

item’s nature. See Minnesota v. Dickerson, 508 U.S. 366,

375 (1993) (holding that the Fourth Amendment was

violated by the officer’s physical manipulation of a

“small lump,” that the officer detected in the defend-

ant’s jacket pocket during a lawful Terry stop, to con-

firm the officer’s suspicion that the lump was a rock of

crack cocaine). And third, the officer must have “a law-

ful right of access to the object itself.” See Horton, 496

U.S. at 137 (“[Nlot only must the officer be lawfully lo-

cated in a place from which the object can be plainly

seen, but he or she must also have a lawful right of

access to the object itself.”).

The investigating officer’s actions in this case do

not fall within the plain view doctrine. The motorcy-

cle’s VIN could not be seen until the officer disturbed

the tarp —i.e., performed a “further search” of the tarp-

covered motorcycle. See Dickerson, 508 U.S. at 375;

Hicks, 480 U.S. at 328 (observing that the officer, in

moving the stereo equipment to view the items’ serial

numbers, had done more than “merely look[| at what

is already exposed to view, without disturbing it... .”).

Moreover, the officer lacked a lawful right of access to

the motorcycle itself. The officer in this case violated

Jardines because he both conducted an investigation

within the home’s curtilage and detoured from the

home’s front-door pathway onto the home’s protected

curtilage area to perform the further search of Peti-

tioner’s motorcycle. See supra Section III.A.; see Hicks,

480 U.S. at 329 (explaining that the officer’s lack of au-

thority, without a warrant, to move the stereo equip-

ment to check the items’ serial numbers was the same

limitation he would have had “if, while walking along

the street he had noticed the same suspicious stereo

equipment sitting inside a house a few feet away from

him, beneath an open window.”). Therefore, the plain

view doctrine is inapplicable in this case.

CONCLUSION

For these reasons, the decision of the Virginia Su-

preme Court should be reversed.

Respectfully submitted,

LESLIE A. SHOEBOTHAM

Victor H. Schiro Distinguished

Professor of Law

Counsel of Record

LOYOLA UNIVERSITY NEW ORLEANS

COLLEGE OF LAW

7214 St. Charles Ave.

New Orleans, LA 70118

(504) 861-5683

shoeboth@loyno.edu

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