Collins v. Virginia: A Recent Supreme Court Case Underscores The Importance of Curtilage in Search Cases
by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu
A recent article in the Virginia Criminal Justice Bulletin discussed Collins v. Virgina, a recent decision from the Virginia Supreme Court.[1] The article suggested that the court’s holding that the police did not need a warrant to search a motorcycle on private property failed to clarify whether there are some circumstances where a search of a motor vehicle on private property will require a search warrant.[2] Another recent article in the Virginia Criminal Justice Bulletin noted that the U.S. Supreme Court had granted certiorari in the Collins case and would be deciding the case soon.[3] The Supreme Court handed down its decision on May 29, 2018, holding 8-1 that, since the motorcycle was parked within the curtilage of the home, the 4th Amendment required a warrant to search it.
The Facts in Collins
The earlier Virginia Criminal Justice Bulletin article gave this description of the facts in the Collins case:
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 that the 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 Supreme Court’s Holding
The first Virginia Criminal Justice Bulletin article argued that the decision of the Virginia Supreme Court in this case left something to be desired because the court did not clarify the impact on the automobile exception of Coolidge v. New Hampshire.[4] In Coolidge, the Supreme Court held that a warrantless search of Coolidge’s car, parked on his own property, required a warrant. That decision seemed inconsistent with other decisions in which the Supreme Court permitted warrantless searches of motor vehicles, so long as the vehicle was readily mobile and there was probable cause to think that contraband or evidence of a crime was in the vehicle. In Collins, the motorcycle was on private property, raising the obvious question of whether the holding in Coolidge applied and required the police to act with a warrant.
The Virginia Supreme Court held that the officers did not need a warrant to search the motorcycle in Collins. The court indicated that in a previous decision, it held that “there is no reasonable expectation of privacy in a vehicle parked on private property yet exposed to public view.”[5] The court cited a 4th Circuit Court of Appeals case, U.S. v. Brookins,[6] as precedent for its holding that the automobile exception permitted the warrantless search in Collins. However, the 4th Circuit failed in Brookins to clarify why Coolidge did not apply in that case.
The court said that Coolidge “declined to apply [the automobile exception] under circumstances evincing no exigency whatsoever.” This statement amounts to a kind of double negative. When stated positively, it suggests that the only time the police need a warrant to search an automobile on private property is when there is some exigency that justifies dispensing with a warrant. Unfortunately, the court made no effort to explain what the exigency was in Brookins. Similarly, the Virginia Supreme Court did not point to any exigency in Collins that would make Coolidge inapplicable. As a result, the Virginia Supreme Court’s decision in Collins remained unclear as to when the police would need a warrant to search a motor vehicle on private property. As we shall see, the U.S. Supreme Court’s decision in Collins eliminates much of this uncertainty, while introducing new uncertainties.
For the Supreme Court majority in Collins, the critical fact is that Collins’ motorcycle was parked within the curtilage of his home when the police searched it.[7] The Court indicated that “[i]n physically intruding on the curtilage of Collins’ home to search the motorcycle, [the police] not only invaded Collins’ Fourth Amendment interest in the item searched, i.e., the motorcycle, but also invaded Collins’ Fourth Amendment interest in the curtilage of home.” The question then was whether the automobile exception justified that intrusion.
The key to the answer to that question, according to the Court, was whether the automobile exception provided the police “a lawful right of access” to the motorcycle. The answer was that it did not, because the automobile exception “does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.” Thus, the rule established by the Court is clear: absent some clear exigent circumstance, the police may not search a motor vehicle located in the curtilage of the home without a warrant.
New Uncertainties
The clarification to the automobile exception provided by Collins is that we can state now with confidence that the police need a warrant to search a motor vehicle located in the curtilage of the home even if the vehicle is exposed to public view.[8] The new uncertainty created by the decision concerns how we define curtilage. It may seem odd to suggest that this is a new uncertainty since the concept of curtilage has existed in Anglo-American law for decades.[9] A common definition of curtilage is the area immediately surrounding the home, used for private activities associated with the use of the home. This definition is easily stated but not so easily applied.
The Supreme Court attempted to clarify the concept somewhat in United States v. Dunn. The issue in that case was whether the police needed a search warrant to look inside a barn on Dunn’s property that contained an amphetamine laboratory. The barn was located on Dunn’s 198-acre ranch, 50 yards from Dunn’s residence. The Court held that the police did not need a search warrant because the barn was not located within the curtilage of the residence. In order to make a determination of whether an area is within the curtilage, the Court indicated that courts should apply four factors: (1) how close the area is to the home; (2) whether the area is within an enclosure that surrounds the home; (3) what kinds of activities take place within the area; and (4) the steps taken by the resident to keep the area from being observed by persons passing by the area.
Fortunately, the curtilage issue was not terribly difficult in Collins. The Court went to great lengths to describe the location of the motorcycle, but the picture below does much to clarify the situation (and is clearly “worth a thousand words”). From this picture, it is apparent that the motorcycle was very close to the residence and should be considered unquestionably to be within the curtilage. However, not all situations will be so straightforward.
Orin Kerr, a highly respected Fourth Amendment scholar, blogged some comments about curtilage the day the Court handed down its Collins decision.[10] His view is that the Court is being too optimistic in its assessment that curtilage is a concept “easily understood from our daily experience.”[11] He poses this interesting question: “If you showed people pictures of different houses, and asked if a particular spot near any particular house was curtilage – explaining the [definition] to them, not giving them the label – would there be rough consensus or would opinions be all over the map?” Kerr’s comments suggest that he believes consensus will often be unlikely.
The Impact of Collins
The earlier Virginia Criminal Justice Bulletin article about Collins concluded with an analysis of four common scenarios involving searches of a motor vehicle at a residence. Let’s re-examine those scenarios and evaluate them with the holding in Collins in mind.
“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.”
There is nothing in Collins to suggest a change in this conclusion.
“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.”
The effect of Collins on this situation is not as clear. Kerr addresses this situation in his blog posting on Collins.
[I]magine the more routine case of a car parked in a driveway in front of a house. Maybe the car is parked in front of an attached garage, or perhaps it is in front of a detached garage some yards from the house. Should that be an easy curtilage issue under Collins, or should it get a complex 4-factor analysis under Dunn? Is Collins just about the special case of a space enclosed by walls right up to the house that happens to be a driveway, or is it a general ruling that applies to driveways?
The wisest conclusion with regard to this situation at present is that the police officer who searches a motor vehicle parked in a driveway without a warrant does so with considerable risk that the fruits of the search will be suppressed. There is a substantial possibility that a judge will consider the driveway part of the curtilage.
“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 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.”
Collins affirms this conclusion. The only caveat concerns the statement about the car being “in the yard somewhere.” In most instances, the yard of a residence is likely to be considered part of the curtilage, but that conclusion might not hold if the yard is very large in size. In that situation, the case may turn on how far the vehicle is from the residence.
“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…. Since the minimal privacy expectations associated with motor vehicles located in public places do not require the police to have warrants to search [those] 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.”
Nothing in Collins changes this analysis.
The earlier Collins article concluded by stating that “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.” The Colllins decision does a good deal of that work, but some work remains.
[1] 790 S.E.2d 611 (2016).
[2] Call, “Warrantless Searches of Automobiles on Private Property,” Virginia Criminal Justice Bulletin, Vol. 2, No. 1 (June, 2017).
[3] Call, “The 2017-18 Supreme Court Term: The Court’s Focus on Privacy Issues,” Virginia Criminal Justice Bulletin, Vol. 3, No. 1 (March 2018).
[4] 403 U.S. 443 (1971).
[5] Citing Thims v. Commonwealth, 235 S.E.2d 443 (1977).
[6] 345 F.3d 231 (4th Circ. 2003).
[7] It appears from the facts in this case that the motorcycle was actually parked at the home of Collins’ girlfriend. Because the motorcycle was not parked at his own home, the government could have argued that Collins lacked standing to raise the issue of whether the police needed a warrant to search his motorcycle. (See the discussion of United States v. Byrd in another article in this issue of the Virginia Criminal Justice Bulletin). However, the prosecution did not raise the issue. What’s more, the facts also suggest that Collins often stayed at his girlfriend’s house. This would have provided Collins a strong basis for arguing that he possessed standing to raise the warrant issue. It is also interesting to note, that the Court refers to the home where the motorcycle was parked repeatedly in its opinion as Collins’ home.
[8] While the majority opinion resolves some of the ambiguity created by Coolidge, it does so without ever referring to that case.
[9] See, for example, Hester v. United States, 265 U.S. 57 (1924); Oliver v. United Sates, 466 U.S. 170 (1984); United States v. Dunn, 480 U.S. 294 (1987); and Florida v. Jardines, 569 U.S. 1 (2013). For an interesting Virginia case illustrating the significance of curtilage, see Robinson v. Commonwealth, 639 S.E.2d 217 (2007) and a discussion of the case at Call, “The Virginia Supreme Court Issues An Important Ruling About the Authority of the Police to Make Warrantless Entries Onto Residential Property,” Virginia Police Legal Bulletin, Vol. 2, No. 2 (September 2007).
[10] Orin Kerr, “Collins v. Virginia and ’the Conception Defining the Curtilage’,” https://reason.com/volokh/2018/05/29/collins-v-virginia-and-a-though-on-curt/ (retrieved 6/4/2018).
[11] Oliver, p. 182, n. 12.