This week the Supreme Court decided Collins v. Virginia. There (as I explained in more detail here, before the Court granted cert), Collins was prosecuted for receiving a stolen motorcycle. After multiple high-speed chases in which police were eluded by a modified motorcycle, and after learning that Collins possessed the offending (and stolen) motorcycle, an officer went to a house being rented by Collins’s girlfriend and saw a motorcycle that appeared to match the one for which police were searching. It was covered in a tarp. The officer entered the driveway, lifted the tarp, and ran the license plate and VIN, confirming that it was stolen. Collins argued that the search of the motorcycle could not be justified by the automobile exception to the Fourth Amendment warrant requirement, and the Court this week agreed.
Justice Sotomayor’s opinion for the Court held that motorcycle was within the curtilage of the home and that the automobile exception did not extend to the curtilage. That is, an officer may not enter the curtilage for the purpose of performing the search of a vehicle pursuant to the automobile exception. Indeed, the Court makes much of the concept of curtilage in this case. But the Court’s statement of the underlying law is incomplete, which, I worry, affects the soundness of the Court’s holding.
Justice Sotomayor states that, “[w]hen an officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred. Such conduct thus is presumptively unreasonable absent a warrant.” That is true, but incomplete. Such conduct is presumptively unreasonable absent a warrant or some exception to the warrant requirement (like, for example, the automobile exception). If the officer’s conduct fits an exception to the warrant requirement, then, even a warrantless search in the home or its curtilage is usually permissible under the Fourth Amendment. Indeed, the exception is what makes the search or seizure constitutionally reasonable, even if warrantless, i.e., the exception overcomes the presumption.
The Court’s discussion of curtilage would be dispositive if this was a case about whether a search had occurred. The fact that the officer physically entered the curtilage shows that the officer conducted a search. But as the Court concedes (see fn. 2), no one — not even Virginia — disputes this. Having established a search, then, the ultimate constitutional question is whether the search was reasonable.
That question is not ordinarily answered by mere reference to the location of the search. If it was, then any search or seizure conducted within the home or its curtilage would be, by definition, unreasonable. This point about conflating a search with its reasonableness is one notable aspect of Justice Alito’s sensible dissent. As Alito says, the decision here “is based on a misunderstanding of Fourth Amendment basics.” Determining whether the officer invaded the curtilage, he says, “determines only whether a search is governed by the Fourth Amendment. The concept plays no other role in Fourth Amendment analysis.”
For example, assume that a police officer with probable cause wants to arrest X while X is standing in the driveway of his home. Or that an officer wants to conduct a search of X incident to arrest in X’s curtilage. Or that an officer with reasonable suspicion wants to enter X’s curtilage to conduct a Terry stop of X. Or suppose an officer enters X’s curtilage for the purpose of questioning X about a recent crime that occurred in the neighborhood, and while there, obtains X’s clear and voluntary consent to search X’s car or garage or bedroom. Surely the Fourth Amendment cases would permit these actions, even without a warrant, and even within the curtilage of the home. But the Court now appears to hold that the automobile exception is different.
Moreover, the Collins Court’s reliance on key cases is also incomplete. For example, the Court correctly cites Payton v. New York for the proposition that an arrest warrant for an in-home arrest helps to protect the sanctity of the home. The Court also correctly cites the rule that warrantless arrests in public are valid, see United States v. Watson, but neglects to mention that warrantless arrests outside of the home but within the curtilage can also be constitutionally reasonable. See, e.g., United States v. Santana.
The Court also relies heavily on Florida v. Jardines. But Jardines was not a reasonableness case; it was merely a search case. And the Court did not hold that the dog sniff there was unreasonable. It merely held that the dog sniff was a search. Nor does the Court in Collins spend much time on the notion of implied licenses. Yet Jardines does not speak of intrusions simpliciter. Rather, Jardines speaks of “unlicensed” physical intrusions onto the curtilage, those that are neither explicitly nor implicitly permitted by the property owner. Perhaps what the Collins Court is really saying is that the implied license given to the police to enter one’s curtilage does not extend to allowing police to inspect a vehicle in the driveway for evidence of criminality. That is a sensible conclusion, and one likely dictated by Jardines. But that merely tells us that the police have exceeded the scope of their license and thus conducted a search. Again, no one here disputes that a search occurred.
Of course, this does not mean that the automobile exception should have justified the officer’s search in Collins. It simply means that the Court could have better explained its reasoning with respect to other factors that limit the scope of the exception and that made this search unreasonable, ones unrelated to curtilage.
Indeed, if the reasonableness determination was based on the location of the search or seizure — making the search or seizure unreasonable because it was performed within the the home or its curtilage — then none of the warrant exceptions (like those in the hypos above) would apply in the home or curtilage. That would include things like exigency, consent, plain view, etc., which we know from earlier cases have been permitted within the home or curtilage (Alito, for example, cites Brigham City v. Stuart).
But that cannot possibly be what the Court held in Collins. In its conclusion, after all, the Court specifically says that perhaps there was another basis for concluding that the warrantless search was permissible, such as on the basis of an exigent circumstance. See slip op. at 14. So we know from the opinion that the Court did not mean to abolish warrant exceptions generally within the curtilage.
Perhaps, then, the best way to understand the Collins opinion is to say that this particular exception does not apply in the curtilage, notwithstanding others that may apply. In other words, the Court is deliberately linking the unreasonableness of the motorcycle search to its location in the curtilage, even though such a linkage does not ordinarily attend Fourth Amendment reasonableness analysis. Otherwise (or, perhaps, “nevertheless”), I fear that the Court’s over-emphasis on curtilage to justify its rule will create some mischief in future cases in which police want to employ an exception to the warrant requirement when they are within the curtilage of a home. If the automobile exception does not apply within the curtilage, are there other warrant exceptions that also should not apply there? I suspect members of the defense bar might now press that question.
In any event, as I said last year, add this to the long list of auto exception cases that start with “C.”