A Few Thoughts on Collins v. Virginia

My take on a Fourth Amendment case that will be argued next Tuesday.

I noted yesterday that the Supreme Court will hear a double bill of Fourth Amendment cases next Tuesday. I wrote about Byrd v. United States yesterday. This post gives my take on the other case, Collins v. Virginia. Collins is an odd little case about the intersection of the curtilage doctrine and automobile searches. I think the Court should reverse the opinion below. This post will explain why, starting with the facts and the lower court opinion and then turning to the legal issues.

I. The Facts and the Opinion Below

The relevant facts are simple. An officer was looking for a particular motorcycle that was involved in some criminal activity. The officer came to the house where the motorcyle was expected to be, and he saw a tarp over what looked like the motorcycle in the house's driveway. The officer walked up the driveway and pulled the tarp off the motorcycle. With the tarp off, the officer could see that the motorcycle was indeed the one he was looking for. The officer recorded the VIN and license plate number, and then he put the tarp back on and left.

The question in Collins is whether the officer's conduct violated the Fourth Amendment. That divides into two questions. First, could the officer walk up the driveway and up to the tarp? And second, could the officer pull off the tarp? The Supreme Court of Virginia held that both steps were legal because the automobile exception to the warrant requirement applied. The officer had probable cause, and under the automobile exception the police can search a car without a warrant so long as they have probable cause. Collins filed a cert petition, pointing to a split on "whether the automobile exception applies to a vehicle located on residential private property."

II. The First Issue: Could the Officer Walk Up to the Tarp-Covered Motorcycle?

It seems to me that to resolve Collins, you need to break down the two questions and deal with them separately. Let's start with the first question, whether the officer could walk up the driveway right up to the tarp. I would think the answer depends on whether the motorcycle was parked on curtilage or was on open fields. (For a brief primer on the difference, see here.) If the bike was parked on open fields for Fourth Amendment purposes, then no Fourth Amendment search occured to approach it. If it was on curtilage, however, then the officer's approach needs to be within an implied license under Florida v. Jardines for it to satisfy the Fourth Amendment.

Virginia's brief argues that even if the bike was on curtilage, the automobile exception allows the entrance into the curtilage to search it. In effect, Virginia argues that the automobile exception allowing automobile searches implies a searching-to-get-to-the-automobile exception. From page 28 of the state's brief:

[B]y necessary implication, authorization to search an area gives authority to access the area. See [United States v. Ross (1982)] at 820-21 ("A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found."). Because Rhodes was permitted to search Collins's motorcycle, he was permitted to access it in order to search it.

But that can't be right. Fourth Amendment doctrine always works sequentially. You have to take each search and seizure separately. And the legal authorization to get to a place to conduct a search or seizure is always distinct from the legal authorization to conduct the search or seizure once you're there.

Consider the law of arrests. The government doesn't need a warrant to arrest a person under United States v. Watson (1976). However, the government does need a warrant to enter a house to arrest the person. See Payton v. New York (1980). The authority to make the arrest doesn't include the authority to enter the house to make the arrest. Entering requires its own justification. And the theory of the curtilage is that an entry into the curtilage is effectively entry into the home. Like entry into the home itself, entry into the curtilage requires a distinct justification.

The Court has emphasized this point with respect to another warrantless search/seizure exception, plain view. To make a plain view seizure or (less often) search, the government must first be lawfully in the place to make that seizure or search. The government can't use its justification to seize an item in plain view as a justification to search a place where the seizure will occur: "not only must the officer be lawfully located 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." Horton v. California (1990). As Footnote 7 of Horton explains, quoting the plurality opinion in Coolidge v. New Hampshire:

This is simply a corollary of the familiar principle . . . that no amount of probable cause can justify a warrantless search or seizure absent exigent circumstances. Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But 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.

I would think this is enough to resolve the first issue in Collins. The Court should reject the application of the automobile exception as a justificaton to approach the car. Depending on how the Justices resolve the second issue, they could then remand for consideration of whether the car was parked on the curtilage, and if so, whether walking up to the car was within any implied license (to the extent the issues were not waived, see page 32 of the Collins brief). Alternatively the Court could try to answer the curtilage/license questions if the Justices think the issues weren't waived, or just bypass them if they were waived. Either way, the curtilage/implied license questions seem like pretty small bore issues for the Supreme Court to decide. And there's not a lot of briefing of those issues on the government side given the focus on the automobile exception.

III. The Second Issue: Could the Officer Pull Off the Tarp?

If the Court ends up ruling that it was lawful to approach the motorcycle, or it otherwise decides to address it, it would then turn to the second question of whether the officer to could pull off the tarp. I think the answer to that, if the Court reaches it, should be "no."

It helps to break this issue down into two sub-questions. First, does the automobile exception apply to a parked vehicle located where this vehicle was located? And second, is pulling the tarp off a motorcycle a search that falls within the category of an automobile search? I would think that the first answer should likely be "yes" but that the second answer should likely be "no."

On one hand, I see the automobile exception as applying to parked vehicles. If you first conclude that the police walked up to the motorcyle lawfully, then the fact that it is parked—or even inside the curtilage—doesn't seem to change the basic set of concerns articulated in automobile exception cases like Pennsylvania v. Labron and California v. Carney.

On the other hand, it seems a stretch to me to say that pulling off a tarp over a motorcycle is a vehicle search triggering the automobile exception. Granted, I agree that the automobile exception applies to motorcycles, too. As Carney suggests, the "automobile" exception is really a vehicles exception. But I would be wary of saying that pulling a tarp off a vehicle is a search of the vehicle. The tarp was a cover over the vehicle, not part of the vehicle itself. It wasn't something that attaches to or is part of the vehicle when it moves.

That matters, I think, because Fourth Amendment law has long developed different rules for searching containers and searching cars. See, e.g., United States v. Ross (1982). The automobile exception allows warrantless searches of cars, but it does not allow warrantless searches of containers. It seems to me that a tarp or car cover is akin to a container for the car. In the language of Ross, it's like the "paper bag or knotted scarf" that may be flimsy but nonethless serves the critical job of concealing possessions from outside observation.

Put another way, if the police see a large tarp over something and suspect there's a vehicle underneath, the Fourth Amendment justification they need to pull off the tarp shouldn't depend on whether they turn out to be right. Pulling off a tarp strikes me as a search of the container akin to opening up a box, not a search of whatever happens to be underneath the tarp. And because searches of containers require a warrant, I don't think that pulling off the tarp can be justified by the automobile exception. I could imagine the government trying some other arguments to try to justify pulling off the tarp. But they don't appear to make them here, so on the issues briefed I would think the state hasn't made the case that the search was lawful.