by Kristin Mulvey*
When an automobile is parked in a driveway in the curtilage of the home, does the automobile exception to the Fourth Amendment still apply? In this Contribution, Kristin Mulvey (’19) argues that the automobile exception to the Fourth Amendment should not apply when the vehicle is in the curtilage of the home. Further, this Contribution demonstrates that the underlying justifications for the automobile exception do not support a warrantless search of an automobile parked in a driveway.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”2 This protection is a simple baseline, “one that for much of our history formed the exclusive basis for its protections: When ‘the Government obtains information by physically intruding’ [on a constitutionally protected area] ‘a “search” within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’”3
However for 90 years, the Supreme Court has stated that automobiles are different, and police can search a car with only probable cause.4 Justifying this exception to the warrant requirement, the Supreme Court has argued that cars are inherently mobile and individuals have a reduced expectation to privacy in a vehicle due to “the pervasive regulation of vehicles capable of traveling on the public highways.”5 Consequently, what does one do when two core Fourth Amendment principles come into conflict: the core protection afforded to the sanctity of the home and the bright-line rule associated with the automobile exception?
“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”6 Thus, this Contribution will argue that a car located within the curtilage of the home deserves to have all the constitutional protections afforded to the curtilage.7
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“[A]t the [Fourth] Amendment’s ‘very core’ stands ‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’”8 To guard this civil liberty, the Fourth Amendment protects more than what is contained within the four walls of a home. This right to retreat “would be of little practical value if the State’s agents could… enter a man’s property to observe his repose from just outside the front window.”9
The protection afforded to the home has therefore been extended to encompass the curtilage, or the area immediately surrounding the home, to protect the “intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’”10 Reflecting the understanding that there is a distinction between an open field and the curtilage of the home, the Supreme Court’s jurisprudence has been intimately tied to common law trespass up until around the mid-20th Century.11 Consequently, “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”12
To determine what precisely encompasses the curtilage, the Supreme Court in United States v. Dunn articulated four factors:
the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.13
While these factors are useful in analysis, no one factor is given more weight than the others, nor is any one dispositive. As the Supreme Court has previously explained, “the ‘conception defining the curtilage’ [as the area around the home to which the activity of home life extends] is at any rate familiar enough that it is ‘easily understood from daily experience.’”14 Common sense has indicated that a porch, side garden, or anything adjacent to the home is encompassed within the curtilage of the home.15
A motorcycle covered by a tarp and parked in a concrete patio is therefore in a constitutionally protected area under the Fourth Amendment. Following the property rational articulated in Dunn and recently emphasized in Florida v. Jardines and United States v. Jones, the motorcycle was within the curtilage of the home. A vehicle is typically parked in a residential driveway and adjacent to the home. Further, a motorcycle covered by a tarp, is shielded from the public view.16 In order to search the vehicle, an officer must engage in an unlicensed physical intrusion.17 The “scope of a license [to enter private property]—express or implied—is limited not only to a particular area but also to a specific purpose…background social norms that invite a visitor to the front door do not invite him there to conduct a search.”18 While a property owner typically grants an implicit license for a visitor to approach a home by the front path, ring a doorbell, and wait for an answer, it would be unreasonable to expect that license to extend to an individual using binoculars to look in a window, maneuver someone else’s property, and look under a tarp.19 While it seems clear that the vehicle is in the curtilage of the home and thus in a constitutionally protected area, it is unclear how the automobile exception applies in the curtilage of the home.
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The automobile exception should not trump a core Fourth Amendment Rule, including the protection of the curtilage of the home. The two main justifications for the automobile exception are the inherent mobility of automobiles and the pervasive regulation of automobiles.20 In California v. Carney, the Supreme Court reasoned that the justification for the automobile exception “come[s] into play” only “[w]hen a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes.”21 The “inherent mobility” or “readiness” justifications for the automobile search located in the curtilage run counter to other Fourth Amendment jurisprudence about the home.22 A suitcase or package sitting on the front porch is equally mobile and may contain contraband. However, the Court has not allowed the “mobility” rationale to justify a warrantless search in that context.23 It seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not currently being used for any purpose.24 Even when the person sought is not a resident of the premises, the Supreme Court has held that an officer must obtain a search warrant beyond an arrest warrant before entering a third party’s home.25
The second rationale, the pervasive regulation of vehicles and their reduced expectation of privacy, does not justify an encroachment on the protection afforded to the curtilage of a home. While it is “an everyday occurrence [that] police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order,” this rationale does not apply to vehicles stored in a private driveway.26 States, including Virginia, acknowledge the greater privacy interest an owner of a vehicle has when it is stored on private property.27 Consequently, while one has a lessened expectation to privacy while moving on the open roads, this rationale does not extend when the vehicle has passed into the curtilage of the home. Society needs the automobile exception in situations in which a police officers’ experiences “inordinate risk” to his or her safety or under high-pressure, time-sensitive situations.28 An unattended vehicle does not pose a substantial risk to an officer. Further, improvements in technology have made it relatively quick and easy for a police officer to obtain a warrant.29
Additionally, the requirement for a warrant to invade the constitutionally protected area of the home does not prohibit officers from doing their job effectively. The other well-established exceptions to the warrant requirement, such as the hot pursuit of a suspect, or the fear of the destruction of evidence, still apply, giving officers the ability to respond to a situation based on law enforcement needs.30
This would not be the first time the Supreme Court has held that a core Fourth Amendment rule trumps a narrow exception. In Florida v. Jardines, the Supreme Court abandoned the principle that a dog sniff is sui generis when requiring a warrant for a drug-sniffing dog who entered the curtilage.31 The Court should take the same approach in this case.
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In sum, a vehicle, stationary in the curtilage with no defendant or confederate in sight, does not pose the exigent threat that would excuse warrantless search.32 Thus, police need not worry that people will avoid automobile searches by driving a car onto a residential property, for traditional exigent circumstances would still apply, just like they already do in the home.33 The automobile exception should not erode the protection guaranteed to the home by the Fourth Amendment.34
* Kristin Mulvey is a 2L at New York University School of Law. This piece is a commentary on a problem written for the 2018 John J. Gibbons Criminal Procedure Moot Court Competition at Seton Hall University School of Law. The views expressed in this article do not necessarily represent the views of the author on this point. Rather, this article is a distillation of one side of an argument assigned to the team.
2. U.S. Const. amend. IV (emphasis added).
3. Florida v. Jardines, 569 U.S. 1, 5 (2013) (quoting United States v. Jones, 565 U.S. 400, 406 n.3 (2012)); see also Katz v. United States, 389 U.S. 347, 358 (1967) (“searches 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 exceptions”).
4. See, e.g., Carroll v. United States, 267 U.S. 132, 153 (1925).
5. California v. Carney, 471 U.S. 386, 391 (1985) (citing Cady v. Dombrowski, 413 U.S. 433, 440-41 (1973)); see also Chambers v. Maroney, 399 U.S. 42, 52 n.10 (1970) (“It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers …”).
6. Coolidge v. New Hampshire, 403 U.S. 443, 461 (1971).
7. This issue is set to be decided by the Supreme Court in Collins v. Virginia (2018).
8. Jardines, 569 U.S. at 6 (quoting Silverman v. United States, 365 U.S. 505, 511 (1961)); see also Agnello v. United States, 269 U.S. 20, 33 (1925) (“[An officer’s b]elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant.”).
9. Jardines, 569 U.S. at 6.
10. Oliver v. United States, 466 U.S. 170, 180 (1984) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886) (reaffirming the distinction between the sanctity of the home and an open field)); see also Hester v. United States, 265 U.S. 57, 59 (1924) (recognizing the difference between the protection given to a home and an open field is “as old as common law”); California v. Ciraolo, 476 U.S. 207, 213 (1986) (stating that the curtilage is where privacy exceptions are at their apex and the area surrounding the home is “intimately linked to the home, both physically and psychologically”).
11. See generally Katz v. United States, 389 U.S. 347 (1967); see also Kyllo v. United States, 533 U.S. 27, 31, 34 (2001) (“assuring preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”).
12. United States v. Jones, 565 U.S. 400, 409 (2012).
13. United States v. Dunn, 480 U.S. 294, 301 (1987).
14. Jardines, 569 U.S. at 7 (quoting Oliver, 466 U.S. at 180 n.12).
15. Id. at 6 (recognizing that a porch and side garden were within the curtilage). In contrast, a barn located 150 feet from the home and an open field more than a mile from the home to be outside the curtilage. See Dunn, 480 U.S. at 305 (deciding that there was no reasonable expectation to privacy in a partially covered barn); Oliver, 466 U.S. at 184 (1984) (holding there is no expectation to privacy in an open field).
16. See Dunn, 480 U.S. at. 301.
17. See Jardines, 569 U.S. at 7; Jones, 465 U.S. at 405 (quoting Entick v. Carrington, 2 Wils. K.B. 275, 291, Eng. Rep. 807, 817 (K.B. 1765)) (“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”).
18. Jardines, 569 U.S. at 9.
19. Id. at 8, 12.
20. See California v. Carney, 471 U.S. 386, 391 (1985) (citing Cady v. Dombrowski, 413 U.S. 433, 440-41 (1973)); see also Chambers v. Maroney, 399 U.S. 42, 52 n.10 (1970) (“It was not unreasonable in this case to take the car to the station house. All occupants in the car were arrested in a dark parking lot in the middle of the night. A careful search at that point was impractical and perhaps not safe for the officers”).
21. Carney, 471 U.S. at 392-93 (emphasis added).
22. See Chimel v. California, 395 U.S. 752, 763 (1969) (holding a post-arrest search within the home without a warrant was unreasonable despite the possibility of action on the part of confederates who could remove contraband); Horton v. California, 496 U.S. 128, 137 n.7 (“even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”); Jones v. United States, 357 U.S. 493, 497 (1958) (requiring a warrant despite the fact that “officers had probable cause to believe that petitioner’s house contained contraband materials which were being utilized in the commission of a crime”); Vale v. Louisiana, 399 U.S. 30, 34 (1970) (overturning the Louisiana Supreme Court, which thought that a warrant was not necessary because drugs are readily mobile and can be easily “removed, hidden, or destroyed” creating their own exigency).
23. Chimel, 395, U.S. at 763 (holding that a post-arrest search without a warrant was unreasonable despite the possibility of action on the part of confederates who could remove contraband).
24. See Coolidge, 403 U.S. 443, 463 n.20 (1971); see also United States v. Beene, 818 F.3d 157, 164 (5th Cir. 2016) (“[W]hen a vehicle is parked in the defendant’s residential driveway, we generally require that there be exigent circumstances justifying a search.”)
25. See Steagald v. United States, 451 U.S. 204, 213, 221 (1981) (reasoning that despite the inherent mobility of people the warrantless search, the original owner has an expectation of privacy in his or her home.).
26. South Dakota v. Opperman, 428 U.S. 364, 368 (1976).
27. Under Virginia Code regulating automobiles, an officer may only “patrol the landowner’s property to enforce state, county, city, or town motor vehicle registration and licensing requirements” with “the consent of the landowner.” Va. Code Ann. § 46.2–102; see also Va. Code Ann. § 46.2-100 (containing regulations that pertain to automobiles only when “operated” in public).
28. Pennsylvania v Mimms, 434 U.S. 106, 110 (1977).
29. Missouri v. McNeely, 569 U.S. 141, 154-55 (2013) (“police officers [can] secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion.”). See also Riley v. California, 134 S. Ct. 2473, 2493 (recognizing that police officers can apply for search warrants remotely through telephonic or radio communications and that an e-mail warrant can often be obtained in less than 15 minutes).
30. See Kentucky v. King, 563 U.S. 452, 455 (“It is well established that ‘exigent circumstances,’ … permit police officers to conduct an otherwise permissible search without first obtaining a warrant.”).
31. See Florida v. Jardines, 569 U.S. 1, 6 (2013); see also United States v. Place, 462 U.S. 696, 707 (1983) (holding the minimal intrusion of a sniff of an automobile was constitutional).
32. See United States v. Beene, 818 F.3d 157, 164 (5th Cir. 2016) (holding only additional exigent circumstances are required to search a vehicle in a residential driveway); Scher v. United States, 305 U.S. 251, 253, 255 (1938) (holding a search of a car in a garage was appropriate when conducted as a search incident to an arrest, after a hot pursuit, conducted without objection, and on the admission of probable guilt).
33. See King, 563 U.S. at 469-70.
34. Cf. Riley, 134 S. Ct. at 2485 (discussing whether the application of an established Fourth Amendment doctrine to a particular scenario “would untether the rule from [its] justifications.”).