Warrantless Searches of Automobiles on Private Property
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
Assume that the police have developed probable cause to think that the pistol used to murder a man is in Frank’s car. The car is parked in the driveway of Frank’s house. The driveway extends from a public street past the side of the house. About twenty feet from the street is a sidewalk that extends from Frank’s driveway to the front door of his house. The driveway continues another thirty feet beyond the spot where the sidewalk adjoins the driveway. Frank’s car is parked in that part of the driveway beyond the sidewalk that runs to his front door. May the police search Frank’s car where it is parked in his driveway without a warrant? A recent case decided by the Virginia Supreme Court, Collins v. Commonwealth,[1] provides some possible guidance to the answer to this question.
The Automobile Exception
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Although the language of that amendment is not clear as to when search warrants are required, for the most part, the United States Supreme Court has interpreted the Fourth Amendment as requiring warrants except under special circumstances.
One circumstance where the Court has held that the police do not need a warrant to search is often referred to as the automobile exception to the warrant requirement.[2] When the exception was first recognized by the Court in Carroll v. United States,[3] it was generally thought that the exception only applied in those situations where the police had probable cause to believe that contraband or evidence of a crime was in the vehicle and there was also reason to believe that the vehicle might be moved if the police delayed a search of the vehicle until a search warrant was obtained. In the Carroll case itself, the police had not arrested the driver of the car, even though they had probable cause to believe the car contained moonshine. Thus, it was reasonable to believe that the driver would have driven off with the car if the police had left it to obtain a search warrant.
However, subsequent cases have made it clear that the exception is broader than it might have appeared initially. For example, in Chambers v. Maroney,[4] the Court permitted a warrantless search of a car (under the automobile exception) that had been seized by the police and was in their possession at the stationhouse when the car was searched. In Pennsylvania v. LaBron,[5] the Court allowed a warrantless search of a car parked on the street under circumstances where there was no reason to think that any suspects were aware that the police were about to search the vehicle. Thus, there was no reason to think that the car would be moved while the police obtained a search warrant.
As a result of these (and other) cases, the present understanding of the automobile exception is that it permits warrantless searches of motor vehicles so long as 1) the police possess probable cause to think the vehicle contains contraband or evidence of a crime and 2) the vehicle is readily mobile. It is unnecessary to show the existence of a present risk that the vehicle will be moved at the time of the search.
There is one case, however, that adds a potential third condition to the automobile exception. In that case, Coolidge v. New Hampshire,[6] the police searched Coolidge’s car while it was parked in the driveway of his house. Although the police had a search warrant, the Court ruled that the warrant was invalid because it had been issued by the state Attorney General (acting as a justice of the peace), who was not a neutral and detached magistrate as required by the Fourth Amendment. Since the police could not rely on the authority of their search warrant to justify the search of Coolidge’s car, they turned to the automobile exception to justify the search.
The Supreme Court held that the search of Coolidge’s car without a valid search warrant (and therefore, a warrantless search) violated the Fourth Amendment. In so doing, the Court (in a 4-Justice plurality opinion) seemed to suggest that the problem with searching without a warrant in that case was that the rationales behind establishment of the automobile exception were not present in the case.
[S]urely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States -- no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, 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," despite its label, is simply irrelevant.
In short, the Court seemed to be saying that the police needed a search warrant because they had a clear opportunity to obtain one without jeopardizing the search. The problem with that interpretation, however, is that it seems inconsistent with the Court’s later holding in LaBron, where the police also seemed to have a clear opportunity to obtain a warrant before searching, but the Court clearly held that a warrant was not necessary. Unfortunately, the Court’s opinion in LaBron fails to address its impact on Coolidge.
There are at least a few possible ways to explain what is going on in these cases. One possibility is that LaBron overturned Coolidge without specifically saying so. There have been situations in the past where constitutional scholars have concluded that Court decisions had, in effect, made an earlier decision ineffective without expressly saying so. Courts even use a phrase to describe these situations: overruling a prior decision sub silentio.[7] However, that does not seem to be the situation here. Cases continue to cite Coolidge from time to time, suggesting that courts still consider Coolidge to be “good law.”
Another way to view Coolidge is to emphasize that the portion of the opinion finding that the police needed a warrant for the search of Coolidge’s car was only adopted by four Justices. Since four is less than a majority of the Court, this part of the decision arguably does not constitute a precedent that is binding in the future. However, as indicated in the previous paragraph, many cases continue to cite this aspect of Coolidge, suggesting that courts frequently treat this part of Coolidge as binding precedent, in spite of the fact that only four Justices subscribed to it.[8]
Yet another way to view the present status of Coolidge is to try to “reconcile” it with other automobile exception cases. When lawyers and judges engage in this process, they attempt to find a way to conclude that a case can be viewed as consistent with existing case law. The critical question posed is whether there is something about the case at issue (in this instance, the Coolidge case) that is significantly different from the other cases which seem to contradict it.
What is different in Coolidge from Carroll, Chambers, and LaBron is that the car searched in Coolidge was located on private property when it was searched, whereas the cars searched in the other three cases were either in a public place when they were searched or were in public when the police seized the car (and then later searched it).
The Virginia Supreme Court decision in Collins makes it clear that the court takes this latter view of Coolidge. In other words, Coolidge is viewed by the Virginia Supreme Court as adding a third condition for a warrantless search of a motor vehicle – that the vehicle is not on the defendant’s private property. In addition, the opinion provides some useful insights as to how the court intends to apply the “private property” limitation established by the plurality opinion in Coolidge. Unfortunately, it also leaves at least one very critical question unanswered [i.e., whether Coolidge would protect against warrantless searches in the driveway beyond the route one would take to access the front door of the residence].
The Facts in Collins
On two separate occasions in the summer of 2013, two different officers (Officers Rhodes and McCall) of the Albemarle County Police Department had an encounter with an orange and black motorcycle on the highway. On both occasions, the officer had cause to stop the motorcycle for a traffic violation, but on both occasions the motorcycle fled from the officers at such a high rate of speed that the officers discontinued pursuit of the motorcycle. The motorcycle was rather distinctive, with chrome accents and a “stretched out” rear wheel characteristic of motorcycles that have been modified for drag racing.
When the two officers involved in the incidents compared notes, they discovered that the driver of the motorcycle on both occasions was wearing jeans and “Timberland-type-style boots.” As a result of the similarities in the appearance of the motorcycle, the apparel worn by its driver, and the behavior of the motorcycle driver when approached by the officers, the officers concluded that their encounters had involved the same motorcycle and driver.
One of the officers had been able to video record some of the incident in which he had been involved. As a result, he obtained a still photo of the motorcycle, including its license plate. A run of the license plate through the DMV database indicated that the tag had been inactive for several years. Officer Rhodes questioned Eric Jones, the last registered owner of the motorcycle. Jones informed Rhodes that he had sold the motorcycle to Ryan Collins, prior to the eluding incidents with the police.
Rhodes visited Collins’ Facebook page, where he saw photographs of a motorcycle fitting the description of the one Rhodes and McCall had encountered in the eluding incidents. In the photos, the motorcycle was in the driveway of a residence. One of the Facebook pictures showed a silver Acura parked in front of the same residence.
On September 10, 2013, Collins attempted to register a silver Acura at a local DMV office. DMV officials summoned the police because DMV records indicated that the Acura had been stolen. Officers Rhodes and McCall both heard this report on the radio. Because they recognized Collins’ name from their investigation of the motorcycle incidents, they both went to the DMV office. When questioned about the motorcycle, Collins denied any knowledge at all about either the motorcycle or the residence shown in the Facebook photos where the motorcycle was parked.
From other sources, Officer Rhodes learned the that address of the residence in the Facebook photos was a location in Charlottesville, near the Charlottesville-Albemarle County line. Rhodes drove to the address and observed what appeared to be a motorcycle parked in the driveway, covered with a white tarp. Despite the tarp, Rhodes could see that the motorcycle had a “stretched out wheel” and chrome accents like the ones on the motorcycle that had fled from him earlier that summer.
Rhodes walked “a car length or two” up the driveway, uncovered the motorcycle, and wrote down its vehicle identification number (VIN). A computer check of the VIN revealed that the motorcycle had been stolen in New York. Rhodes continued surveillance of the residence until, a short time later, Collins was dropped off at the residence. After Collins entered the residence, Rhodes knocked on the front door. Collins eventually admitted to Rhodes that he knew the motorcycle had no title when he purchased it from Eric Jones, and Rhodes arrested him for receiving stolen property.
The Automobile Exception
Collins moved to suppress the evidence of the motorcycle’s VIN as the product of an unconstitutional search of the motorcycle (or, as we will see, an unconstitutional search of the tarp). The Virginia Court of Appeals upheld the search as an exigent circumstances search, citing the ready mobility of the motorcycle, Collins’ awareness that the police had suspicions about the motorcycle, and Collins’ quick change of clothes into clothing appropriate for a motorcycle ride after his arrival at the residence.
The Virginia Supreme Court agreed to hear Collins’ appeal of the decision of the Court of Appeals and elected to decide the case on the basis of the automobile exception, rather than the exigent circumstances exception. In doing so, it rejected the argument adopted by the sole dissenting Justice in this case that the search did not fall under the automobile exception because it was the tarp covering the motorcycle that Officer Rhodes searched to gain sight of the VIN, not the motorcycle. The court noted that in order to view the search in this case as a search of the tarp, the purpose in removing the tarp would have had to have been to determine what was under the tarp. However, it was readily apparent from the contours of the tarp that a motorcycle was under it. The purpose in removing the tarp was to obtain access to the VIN, not to determine what was under the tarp. In addition, the court noted that both the prosecution and the defendant had often referred to the search at issue in this case as a search of the motorcycle.
The court also rejected an argument that the search could not be justified under the automobile exception because the motorcycle was not about to be moved and, in any event, could have readily been prevented from being moved by blocking the driveway with the officer’s patrol car. The court noted that this argument misses the point of the automobile exception, that it is a “vehicle’s inherent mobility – not the probability that it might be actually set in motion – [that] is the foundation of the automobile exception’s mobility rationale.”
The court then addressed the most significant aspect of this case – i.e., the fact that the motorcycle was on private property when it was searched without a warrant. The court noted that, in a footnote, the Virginia Court of Appeals had appeared to rely on the plurality opinion in Coolidge as a basis for stating that “the Supreme Court has suggested that a search of a vehicle on private property requires more than mere mobility, as is generally sufficient under the automobile exception.”[9] The Virginia Supreme Court indicated that this statement was “misguided” because the Virginia Supreme Court had previously held that “there is no reasonable expectation of privacy in a vehicle parked on private property yet exposed to public view.”[10] (Emphasis added).
The court then resolved the Collins case by citing United States v. Brookins,[11] a decision of the 4th Circuit Court of Appeals, noting the similarities between the two cases. In Brookins, the Suffolk police had conducted a probable cause search of a car parked in a private driveway without a warrant and found contraband in the car. (The opinion is unclear as to whether the car was in the driveway along the path that a visitor would take to the front door of the residence where it was parked). In upholding this warrantless search, the 4th Circuit rejected a “bright-line rule, whereby the automobile exception may never apply when a vehicle is stationed on private, residential property.”
Unfortunately, in relying on the Brookins case, the Virginia Supreme Court does not specify how the search of Collins’ motorcycle is different from the search of Coolidge’s car – a search that was found impermissible by the Supreme Court under the automobile exception (at least in the plurality opinion in that case). Equally unfortunate is that a careful reading of Brookins also fails to reveal a clear discussion of what distinguishes the search of Brookins’ car from the search of Coolidge’s car. The 4th Circuit says in Brookins that the plurality opinion in Coolidge “declined to apply Carroll under circumstances evincing no exigency whatsoever,” but the court makes no effort to explain what exigency existed in Brookins.
As a result, Collins is a somewhat confusing decision. The decision makes it (relatively) clear that Virginia appellate courts are going to treat the plurality opinion in Coolidge as binding precedent and that they will not view that opinion as prohibiting all warrantless searches of vehicles on private property. However, it is impossible (in my opinion) to draw much more guidance from the decision.
Where Does Collins Leave Us?
In my opinion, the decision in Collins is correct, but it missed a great opportunity to clarify a somewhat murky situation. The question that remains after Collins is when does Coolidge prohibit a warrantless search of a motor vehicle on private property? The opinion in Collins does not provide an answer to that question. In my opinion, the answer should depend upon the location of the vehicle when it is searched.
Let’s look at the most likely situations involving the search of a motor vehicle at a suspect’s residence. In all of these situations, we will assume that the police possess probable cause that contraband or evidence of a crime is in the vehicle. The question is whether the vehicle may be searched without a warrant.
In the first scenario, the vehicle is parked on a public street in front of the suspect’s residence. It is clear that the police do not need a warrant to search it. This is the classic automobile exception search. The only possible significant difference between this situation and the one in Labron is that the car is parked in front of the suspect’s residence. However, a person has no reasonable privacy expectation in a public street, just because it happens to be in front of his home. Therefore, there is no reason to view this situation differently from the Labron situation.
In the second scenario, the vehicle is parked along the route that a visitor would take to visit the residence. A visitor going to the front door of the residence (or any other place on the property that a visitor would logically approach to determine if a resident was at home) would pass right by the vehicle in this scenario. The automobile exception would still seem to apply, since the vehicle has, in effect, been exposed to public view.[12] The invitation to the public[13] to come to a person’s “front door” means that anything seen by a person taking that route has been exposed to the public. Therefore, the police would not need a warrant, in my opinion, to search a vehicle parked in this location.
This is admittedly very similar to the Coolidge scenario. In Coolidge, the car was parked in his driveway, but the opinion goes no further in explaining the location of the car (the same deficiency displayed by the 4th Circuit Court of Appeals in its Brookins decision). It does state that the car was visible from the street and from inside the house, but that is all it says. The car may not have been located along the normal route that a visitor would take to the front door of the house (or any other route that a visitor would typically use to approach the residence to pay a visit). Therefore, the more logical approach is to base the analysis on whether the vehicle is located in an area that would be readily visible to a public visitor.
In the third scenario, the vehicle is parked within the curtilage of the residence, but not along the route a public visitor would take to the front door. (The curtilage is that area of a person’s property immediately surrounding the residence where activities associated with the home typically take place). The car might be in the driveway, but beyond the place where a public visitor would leave the driveway to approach the front door. Or the vehicle might be in the yard somewhere. Now the automobile exception should not apply. These areas have not been exposed to the public, and the privacy protections of the home should extend to them. Therefore, the police would need a warrant to search a vehicle located in any of these places. The key in this scenario is whether a normal visitor would pass by the car. If so, it is exposed to the public and falls within the automobile exception. If not, it falls outside the automobile exception.
The fourth, and last, scenario involves a vehicle parked on the suspect’s property but outside the curtilage. The Supreme Court has characterized these areas as open fields. The protections of the 4th Amendment do not extend to open fields. In Oliver v. United States,[14] for example, the Supreme Court held that the police did not intrude upon a reasonable expectation of privacy (and therefore were not searching under the 4th Amendment) when they climbed over fences on the defendant’s farm and located a patch of marijuana, even though the fence was marked with “no trespassing” signs. Since the minimal privacy expectations associated with motor vehicles located in public places do not require the police to have warrants to search these vehicles (with probable cause, of course), it is difficult to see why the police would need a warrant to search vehicles located in open fields.
In my opinion, both the U.S. Supreme Court and the Virginia appellate courts have a little bit of work to do to clarify the situations discussed in this article, involving searches of motor vehicles located on private property. Unfortunately, the Collins case does not do much of that work.
[2] It would probably be more appropriate to call this exception the motor vehicle exception, since the rationale for the exception would seem to apply equally to motor vehicles other than automobiles, such as boats, airplanes, or – as in the Collins case – motorcycles.
[5] 518 U.S. 938 (per curiam, 1996).
[7] See, for example, Adkins v. Children's Hospital, 261 U.S. 525, 564 (1923), where Chief Justice Taft, dissenting, said "[i]t is impossible for me to reconcile the Bunting Case and the Lochner Case, and I have always supposed that the Lochner Case was thus overruled sub silentio.”
[8] It may be that the Virginia Supreme Court views the plurality opinion in Coolidge as a binding precedent. In Thims v. Commonwealth, 235 S.E.2d 443 (1977), the court indicated that in Lugar v. Commonwealth, 202 S.E.2d 849 (1974), the Virginia Supreme Court had “assumed, without deciding, that the plurality opinion in Coolidge had precedential effect.” Although the court did not indicate in Thims that it was adopting the plurality opinion as a binding precedent, neither did it take this opportunity to say that it was not.
[9] This statement by the Court of Appeals was what lawyers call dicta. Dicta is a statement made in a judicial opinion that was unnecessary to the court’s decision in the case. It is not part of the reasoning that was used to decide the case. Since the Court of Appeals decided the Collins case on the basis of the exigent circumstances exception to the warrant requirement, it did not need to say anything about the automobile exception – except perhaps to explain why it was not relying on that exception.
[10] Citing Thims v. Commonwealth, 235 S.E.2d 443 (1977).
[11] 345 F.3d 231 (4th Cir. 2003).
[12] In the Thims case, referenced in endnote 8, the Virginia Supreme Court noted that “there is no reasonable expectation of privacy in a vehicle parked on private property yet exposed to public view.”
[13] Or what the Supreme Court refers to as a “license” to the public in Florida v. Jardines, 133 S.Ct. 1409 (2013).