# Amicus Curiae Brief — Collins v. Virginia, 138 S. Ct. 53 (2017) (No. 16-1027) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0733%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2017 ## Text No. 16-1027 Ju Che Supreme Court of the United States o 4 RYAN AUSTIN COLLINS, Petitioner, V. COMMONWEALTH OF VIRGINIA, Respondent. € aA On Writ Of Certiorari To The Supreme Court Of Virginia @ aA BRIEF OF AMICI CURIAE FOURTH AMENDMENT SCHOLARS IN SUPPORT OF PETITIONER @e - 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 i 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. 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 16 20 22 il 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 iv 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 1 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. oe vy 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. e 3s ’ 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. 2 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). 3 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). 4 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. eo - 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 5 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.”). 6 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.”). 7 — 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). 8 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 . . . .”). 9 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 10 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 11 — 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). 12 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 13 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 14 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 15 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. 16 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 17 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 18 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 19 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 20 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 Ackerman, 831 F.3d at 1307. " See Collins, 790 S.E.2d at 618. 21 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 22 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 23 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 24 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, 25 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 26 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. 27 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 28 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 29 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). 30 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 31 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”). 32 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 33 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 34 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 35 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 36 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 37 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. , vv 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0733%3A13. Public record. Not legal advice.