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Tuesday, January 09, 2018

Collins v. Virginia and the Remnants of Coolidge v. New Hampshire

Today, the Supreme Court heard argument in Collins v. Virginia, which addresses what limits, if any, remain on the “automobile exception” to the Fourth Amendment’s warrant requirement.  I have not yet had a chance to take a look at the transcript, and I may have further thoughts on this after I do.  But for those whose memory of criminal procedure is hazy, the Court has held in a long series of cases that police can generally search an automobile or other motor vehicle without a warrant as long as they have probable cause to think there is seizable evidence within.  The exception began as a sub-species of the “exigency” exception, the theory being that if police could not immediately search a vehicle, it could be easily driven away and out of the jurisdiction or, at least, would be much more difficult to later locate.  But the exception has morphed into a self-standing justification for dispensing with the warrant requirement such that the Court has applied it in cases where the car has already been impounded and there was no real danger of its being driven away.  The Court has also added a distinct justification to the exception:  the reduced expectation of privacy people have in their cars.

In Collins, Virginia police observed a motorcycle parked on Collins’s property within the curtilage of his house, and they had probable cause to believe that it had been used in a crime.  An officer entered the property, removed the motorcycle’s cover, and searched for and obtained the motorcycle’s VIN.  When he ran the VIN, he learned that the motorcycle had been stolen and Collins was later arrested for and convicted of receiving stolen property.

The Virginia Supreme Court affirmed his conviction, holding that the warrantless search of the motorcycle for its VIN was a reasonable Fourth Amendment search pursuant to the automobile exception.  In the U.S. Supreme Court, Collins challenges this determination given that the motorcycle was on his property, unlike the more typical case in which the automobile exception would apply, where the automobile is being driven on the highway when the police form probable cause to search it.  (Collins does not seem to challenge the removal of the motorcycle cover as a separate search, perhaps because there was obviously a motorcycle beneath it.)

Virginia relies heavily on two cases in which the Court approved warrantless searches of automobiles located on private property.  In Pennsylvania v. Kilgore (a companion case of Pennsylvania v. Labron), police searched a farmhouse with the consent of its owner and also searched Kilgore’s truck, which was parked in the driveway, finding cocaine.  The Pennsylvania Supreme Court held that the automobile exception did not apply because there were no exigent circumstances to justify dispensing with the warrant requirement.  The U.S. Supreme Court reversed per curiam, putting the final nail in the coffin of the idea that the automobile exception was somehow tied to the existence of an actual exigency.  But this case does not help Virginia very much, in part because the police already had consent to be on the premises (more on that below) but mostly because the U.S. Supreme Court simply did not address the issue whether and to what extent the automobile exception applies on private property; it addressed only the question of whether exigency is a separate and independent requirement to trigger the exception.

Virginia also relies on Scher v. United States, a Prohibition-era case in which federal agents followed Scher’s car from a public highway into Scher’s garage after having been informed that the car contained bootleg alcohol.  When an officer approached and questioned Scher in the garage, Scher admitted he had alcohol in the trunk.  The agent searched the trunk, found the alcohol, and arrested Scher.  The Court upheld the search but its reasoning is rather opaque.  Citing Carroll v. United States, the progenitor of the automobile exception, the Court first wrote “it seems plain enough that just before he entered the garage the following officers properly could have stopped [Scher’s] car, made search and put him under arrest. * * * Passage of the car into the open garage closely followed by the observing officer did not destroy this right.”  The Court then pointed out that “[n]o search was made of the garage.”  The Court then observed:  “Examination of the automobile accompanied an arrest, without objection and upon admission of probable guilt.”  Finally, the Court concluded:  “The officers did nothing unreasonable or oppressive,” citing Agnello v. United States, a search-incident-to-arrest case.

Scher’s mash-up of the automobile exception, hot pursuit, consent, and search-incident-to-arrest is worthy of a student’s C-minus test answer, and just as difficult to untangle.  But let’s try.  Reading the case most favorably for Virginia, it seems to say that the automobile exception applied in the moment before Scher entered his garage (by the way, the opinion does not make clear whether this was his garage, or just a garage, perhaps one he shared with others, but we’ll assume it was his).  Given that no warrant was needed to search the car at that moment, a hot-pursuit-type extension of the automobile exception is warranted given that probable cause was formed while the car was on the highway.  This is consistent with Chambers v. Maroney, in which the Court held that, because police had probable cause to search a vehicle at the time they stopped it, the automobile exception also encompassed a search that took place later after the car had been towed to an impound lot.  If that’s what Scher really means, it hardly helps Virginia, given that probable cause in Collins was formed after the motorcycle was already on Collins’s property within the curtilage of his house.

The most helpful precedent for Collins, as the title of this post suggests, is Coolidge v. New Hampshire.  There, after Coolidge’s arrest, state police, acting without a valid warrant, took custody of two cars that were parked on his driveway.  Incriminating evidence found within was used against Coolidge at trial.  The Court assumed that police had probable cause to search but held that the police needed a warrant, rejecting the State’s contention that the automobile exception applied.  The Court famously wrote:  “The word `automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.”  One problem for Collins is that Part II.B. of the opinion in Coolidge, rejecting applicability of the automobile exception, was joined by only four Justices.  Another problem for Collins is that this portion of the opinion rejects the applicability of the automobile exception because there was no exigency.  But, again, the Court has subsequently and definitively, in cases such as Labron/Kilgore, rejected such a limitation on the exception.

Still, one can read Coolidge as rendering the automobile exception inapplicable when the automobile is located on private property.  Part II.D. of that opinion, joined by a majority of the Court, consisted of a broadside against the reasoning of Justice White’s dissent, which would have upheld the search of car under both the “plain view” and the automobile exceptions.  The majority in Part II.D. attacked this position on the ground that Justice White had ignored a basic distinction in Fourth Amendment law between searches that take place on a person’s own premises and those that take place elsewhere.  Thus, while only a plurality in Coolidge supported the now-discredited view that the automobile exception applies only where is some exigency that excuses the failure to get a warrant, a majority seems to have held that the exception does not apply where the automobile is located on private premises.  This also distinguishes Kilgore: although the automobile search there took place on private property, it does not appear that it was Kilgore’s property, and the police had the consent of the landowner to be there.

It seems to me that this is the basic problem with Virginia’s position:  it treats the entry onto Collins’s land and search of his motorcycle essentially as a single, continuous intrusion.  But it is not.  We are taught that when evaluating police actions against the constraints of the Fourth Amendment, we should take a piecemeal approach and analyze each separate intrusion separately.  And here there were two intrusions:  the entry onto Collins’s land and then the search of the motorcycle.  The Court’s recent re-invigoration of the so-called “trespass” test in Florida v. Jardines suggests why that is important.  If the police conducted a search simply by entering the property and approaching the covered motorcycle in order to obtain information, then the automobile exception does not even come into play.  To put it another way, to borrow from the Court’s “plain view” jurisprudence, the automobile exception should not apply unless the police have lawful access to the automobile in the first place.  And that ought to depend on where exactly on the property the motorcycle was.  If it was where any member of the public might have encountered it on the way to the front door, one could say that the police had lawful access to it, and a search then conducted with probable cause might well fall within the automobile exception.  But if not, then the police breached the Fourth Amendment before they even searched for the motorcycle’s VIN and the automobile exception could not repair that breach.

Posted by Michael J.Z. Mannheimer on January 9, 2018 at 08:29 PM in Constitutional thoughts | Permalink

Comments

Thanks for that interesting post , the respectable author of the post , justifiably , claims that :

It seems to me that this is the basic problem with Virginia’s position: it treats the entry onto Collins’s land and search of his motorcycle essentially as a single, continuous intrusion. But it is not. We are taught that when evaluating police actions against the constraints of the Fourth Amendment, we should take a piecemeal approach and analyze each separate intrusion separately.

End of quotation :

So , in accordance , he has ignored it seems , that cover on that motorcycle . It may have significance it seems . Because if one introduces here , justifiably , the " plain view " doctrine , then , the machine was covered it seems . That is to say , that whether intentionally or not , the owner of that motorcycle , had enhanced reasonable expectation for privacy ( by covering it ) let alone while parked in private property . So , we have another separate phase it seems , within that analysis , ignored by the author of the post it seems .

Thanks

Posted by: El roam | Jan 10, 2018 12:09:16 PM

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