Contributions

Cars in Castles: The Fourth Amendment’s Automobile Exception and the Curtilage of the Home

by Kristin Mul­vey1

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

* * * * *

[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.

* * * * *

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.

* * * * *

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

 

Notes:

1. 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.”).