Transcripts For CSPAN3 Collins V. Virginia Oral Argument 20180124

Fourth amendment. This oral argument is about an hour. Well hear argument next in case 161027 collins versus virginia. The warrant requirement for the home cannot be overthrown by the automobile exception. Under the commonwealths argument, on probable cause alone, an officer may search a vehicle anywhere that he finds it, and may go anywhere that he needs to in order to access that vehicle. That rule cannot survive foundational Fourth Amendment principles. Searches of the home in curtilage without a warrant are presumptively unreasonable as this court has often recognized. The rule we ask this court to adopt is that the automobile exception does not apply to a vehicle found in the curtilage of the home. Suppose the police have probable cause to believe that the vehicle is stolen, and they even get a warrant to inspect the vehicle, but the vehicle is parked in this port. Do they need a warrant to go get the car for which they have a warrant . Well, your honor, the warrant would specify the place to be searched for the car. And so commonly a warrant would say, for instance, the dwelling and curtilage to look for this motorcycle. So the warrant that authorizes the search of the motorcycle would, by its terms, authorize the intrusion into the curtilage. What if it didnt . So they have a warrant, here, lets say, to search for they have probable cause to search this thing covered by a tarp. They have a warrant to search this motorcycle because its been involved in criminal activity, they want to get the vehicle Identification Number from it. And they see it. Lets say its parked two feet from the curb, but arguably or its parked where it is here, maybe in the curtilage, maybe not in the curtilage, that warrant would be insufficient . Well, your honor, the Fourth Amendment, by its terms, requires the warrant to specify the place to be searched. So if theyve seen the motorcycle in that spot and they get a warrant, the warrant would say this house on delmeda avenue, may have included the picture and it would by its terms authorize the access to that. This is my question about your argument based on the curtilage. We ask whether a search within or outside the curtilage in order to determine whether the Fourth Amendment applies at all. But thats not really the question here. Because there is probable cause. And there is the Motor Vehicle exception to the warrant requirement. So the issue is not whether there was a search. Yes, there was a search. And yes, i note, if it was the curtilage, then there was an intrusion on the protected area. But the warrant the Motor Vehicle exception to the warrant requirement, i take it, is based on two things. One, is the risk that the vehicle is going to be moved during the time when the warrant is sought. And second, is a consideration on the other side of the risk that if theres not a warrant, the police will be wrong about probable cause and the degree of intrusion on property on legitimate property interests that occur in that situation. Its a balancing. Its not a consideration of whether its on the curtilage or not. And its hard to see why the balance is any different here than it would be if this motorcycle had been parked on the street. The risk that it will be moved seems to be almost exactly the same. And what is the additional invasion of privacy . The invasion of privacy thats involved in walking a few feet up a driveway and the home is not even mr. Birds home. Why does the balance come out different here . Well, your honor, so heres the way that i think about that. If youre looking at the terms that support the automobile exception, you have ready mobility and you have the lessened expectation of privacy. But the curtilage and the home are essentially more important concerns than that. So, for instance, if i had a fist full of cocaine and im out in public, the cocaine is extremely readily mobile. Theres nothing that is easier to dispose of than a fistful of cocaine. If ive got a sink, it can be gone in seconds. Its extremely readily mobile. Nor in the cocaine itself is there any expectation of privacy. Its illegal to possess it already. But if im standing in, say, my living room or my garage with a fistful of cocaine, the court would require a warrant for the police to come to that address and look for that and get me. Yeah, well, i think the privacy interests would be quite different if this was in the house or if it was in the garage. But this is not in either of those places. Its in a spot thats visible from the street. Right . Its visible from the street from directly at the end of the driveway, yes, your honor. It is obscured from any distance in either direction by the brick walls that surround where this motorcycle was on three sides, one side being the house. So the motorcycle here is five feet from the side of the house. And to the extent that curtilage is at issue, curtilage has been waived by the commonwealth by not arguing it below, and this is a clear case for curtilage given the distance from the house. How much does your argument depend on us viewing this as two things, one a trespass on private property, the curtilage, and then a search within that private space . Is your argument hinge on that distinction . Well, i think we make that distinction because its important just to make sense of the Fourth Amendment to think about it step by step. And there are two searches here. The first is the intrusion into the curtilage under jardeans which is clearly a search outside of any implied license, and the second is the removal of the cover from the motorcycle, which is similar to opening a container to find a vehicle inside, or perhaps opening the door to a car or removing a cover from a car. If this motorcycle were parked on a street and it was covered by a tarp, you would say the Motor Vehicle exception doesnt apply because its covered by a tarp . No, your honor, if it were parked on the street then the automobile exception would apply. Whats the relevance of the tarp . The relevance of the tarp is essentially that there is a there is some expectation of privacy in a tarp, particularly placed within the curtilage of the home. So the location of the motorcycle is very important here. So what difference does it make that the tarp was there . The tarp perhaps makes it particularly clear that the officer was undergoing a search, not just, say, walking where he could have said, oh, this is almost counsel, lets change the hypothetical. Is there still a violation under your theory of law if the motorcycle was in plain view in the curtilage, and he just walked onto the curtilage . I dont know where the vin is on the motorcycle, by the way. In a car, its within the car. So you have to open the car door. But lets assume that you have to move something in the motorcycle. I dont know, do you . I dont think you would have to move something on the motorcycle. And so lets just assume that. No top on it. Does your argument still stand . Yes, your honor. So if the motorcycle is where the motorcycle is in this case, but there is no cover on it, there is a Fourth Amendment violation, and that is well, why . Because, i mean, suppose the policeman is standing on the sidewalk. He the window of the house is quite close, and there inside he sees a huge pile of cocaine. I thought, but perhaps ive got it mixed up, i thought that seeing something that is an illegal substance that can be easily disposed of in about 3 seconds would, in fact, justify, create an exigent circumstance under which the policeman could enter. Am i wrong about that . Close, your honor. So what is the law there . If an officer standing on the sidewalk looks into the window of a house and sees a pile of drugs through the window. Yeah. That creates probable cause that would permit the officer to get a warrant to go in the house. He gets a warrant and they throw it all down the sink. Because there is nothing by the time he comes back. I thought that was an example of an exigent circumstance. You know the area of this law better than i do, i guess. That isnt . Its not impossible that there would be an exigent circumstance. Ive given you the facts. The facts are, theres a big pile of cocaine right there, and somebody wandering around inside, and cant he what is an exigent circumstance if it isnt that . Its particularly important to that hypothetical that theres someone wandering around outside. He has reason to think theres somebody in the house. Right. So its certainly possible that it could be created if theres a person if thats an exigent circumstance and you happen to see now, changing the situation, you happen to see a motorcycle, which is a rather unusual shape, and happens to look identically like the one that you know was just stolen, you cant go and go look at it . You have to get a warrant . Of course they drive away in the meantime, but nonetheless youre there by yourself, no other policeman. Its in the window, okay. Or its in the driveway. Why cant you . Just to be clear in this case the Supreme Court of virginia steered away from exigency and said, no, were not i know that. Thats why i thought the tarp made a difference. And thats why i thought this was a case about a tarp. Oddly enough, and not a case about whether you have an exigent circumstance. It is not case you just told me im wrong. This is not an exigency case. The Supreme Court of virginia specifically no, i know that. What im trying to get at is i suddenly thought i dont understand this case because you said the circumstance is the same without a tarp. Thats what confused me. Thats why i asked the question. So the officer testified that when he arrived at the property there was no one home. And the exigency, the relevant exigency, were there one here, would be imminent destruction of evidence. And he testified that no one was there. The motorcycle is under a tarp. He has a picture or a cover. He has a picture of the motorcycle, in exactly the same place from facebook, which he must know was taken at least a few hours earlier because hes been with the person who he believes owns the motorcycle in the meantime. So theres no obvious exigency here. Mr. Fits im sorry. There is no exigency here and that would be an issue for remand. Could i go back to the exchange you had with Justice Alito. When you gave the hypothetical about drugs, he said that would be different, different in a home. But here you have the motorcycle parked out in the open on the driveway in this enclosure where you can see it from the street. And i guess this is the question i want to ask you. If there is that difference, like in a home you better have a warrant. But here its out on the street. But in the curtilage, in the curtilage, and thats established. Yes. Its not disputed here. How far are we committed by jardeans to treat the curtilage exactly as a home . That seems to be important. Given the things you and Justice Alito agreed on. How far do we say, look, what jardeans said or what weve said in other cases is we have to treat the curtilage exactly as we would the home, even though you can actually see the motorcycle on the curtilage . Yes, your honor. So in jardeans, the court said, the curtilage is protected as part of the home itself for Fourth Amendment purposes. And even the court in jardeans and at the time the court was quoting oliver the 1984 case that recognized open fields and said the same thing. And the idea that curtilage is protected as part of the home itself is important, and i think isnt it whose curtilage it is. Here were told that there was a close relationship between the defendant and the homeowner. But suppose there werent that close relationship. Suppose it was a brand new girlfriend, and who never stayed overnight, he was hopeful, but he hasnt. Its parked the same way. So you may, your honor, be it sounds like you are describing a difficult case of Fourth Amendment standing or right to object. This court is very clearly said in minnesota versus olson that the overnight guest has the right to object, and thats the status in this case. At minimum. I mean, really, its his family, the mother of his child, his child who lives there, and she is the lessee. He spends several nights a week there. On the other end of the spectrum, being in a place for a couple hours to do business would not create a right to object. To the extent connection to the property, connection to the curtilage would be treated the same way as connection to the house. Coming back to justice to the question. Did we say in jardeans that the curtilage is to be treated the same as the house for all Fourth Amendment purposes . I thought the issue in jardeans was whether was whether officers who did not have probable cause were permitted to walk up to the front of the house . At which point they acquired probable cause. Well, yes, your honor. So jardeans identified a search, and it identified a search of the home based on actions taken exclusively in the curtilage of the home. And the majority essentially said, as i read it, that the officers acted beyond the scope of the implied license when they brought a drug dog, and they spent a few minutes in the curtilage, sniffing around, thats not what there would be an implied license to do, which is essentially just a knock and talk. So its a search of the curtilage, and the court stopped there. This court stopped there, but of course it was affirming the florida Supreme Court, which had thrown out the search for lack of a warrant based on the protection of the curtilage. Counsel, we permit the police to seize items in plain view in a home. They get a search warrant for the home. They see an item that they have probable cause to believe is incriminating evidence. They can seize it. Justice breyer said exigent circumstances permit the police to seize items. I think the assumption, or not the assumption, the premise of all of those cases is that the police are there legitimately. If you have a warrant, you are permitted to be there. In jardeans, you could couldnt seize the incriminating evidence wafting from the house because you didnt have a right to be in the curtilage. And so isnt there a difference when you are in the street, as these Police Officers were, they have a right to be on the street, they have a right to look at whatever is visible, and they could see the motorcycle from there, so is this a plain view case . Is this an exigent circumstance case . Thats why i thought that Justice Breyer was asking whether the search of the tarp was part of this. Because was this in plain view in essence . As i understood it they werent sure it was the same motorcycle. I thought the wheel was the same. Im not sure why they needed that if they knew the motorcycle was stolen, or did they not know yet that it was stolen . The record is unclear, and we would not we dont believe that the officer thought the motorcycle was stolen. He was looking for the motorcycle how do you attribute the way im looking at this, which is the police are standing there. They see something and have probable cause to believe that its incriminating evidence. How is that different than being inside the home with a warrant . And again, im not sure i see the difference, although the tarp is a difference because they are lifting theyre searching Something Else besides the motorcycle. So, your honor, this is not a plain view case because in horton versus california, the court said in order for plain view to apply to allow the seizure of the thing, the officer must have a right of access to the thing itself. So theres no right of access. Theres no implied license to go into the curtilage to look for evidence that you have seen. And so seeing the motorcycle from the street in this case is just like seeing the motorcycle or seeing drugs through the window of a house. Do you dispute the fact that they had probable cause to believe that the thing that they saw covered by the tarp was the motorcycle they were looking for . We do not dispute that. Okay. And so ultimately here, this is a fairly straightforward case, i think, the motorcycle is five feet you dont dispute in other words, you, in your view, you agree that the policeman standing on the sidewalk knows that that item covered by, or at least has probable cause to believe, covered by the tarp is the possibly stolen motorcycle, you agree with that . He has probable cause to believe that is the motorcycle that eluded him in traffic, that he was looking for. Of course there could be other things under the tarp as well as the motorcycle. He didnt really have to lift the tarp at all. Well, he wanted to lift the tarp to be sure. Thats his decision. He didnt have to. In your view he could have just grabbed the whole thing, tarp and all, if he had access. Well, he didnt have access. I know that. But im saying if hed had access to it, if theyd said please come to my curtilage. Now, if that had given him access, he could have just grabbed the whole thing, tarp and all. Is your view im saying, do you agree i thought from what you just said, i was surprised but i thought that now you do agree that that is the case, he could just grab the whole thing . Do you agree with that or dont you agree with it . No, your honor. He is investigating the crime of eluding him in traffic. Ultimately that is a crime committed by the driver. I think we got confused about that. The police were looking for him because he eluded them by speeding away. The evidence of the theft comes when they see the number after they lift the tarp. Yes, your honor. Now, there is some it is agreement in the record about that. But the officer testified he went to the house solely to look for the motorcycle that had eluded him, he was asked, was the motorcycle did you think the motorcycle was contraband . And he said no. So he was looking into the eluding, and when he ran the vin number he found that it was stolen. So he didnt know this was stolen property yet, the vin number this is like jardeans, the vin number gave him that information. That is what he stated, yes. You could see under the tarp, right, some identifying characteristics in the extension of the wheel that allowed it to go 140 miles an hour, and the color scheme and all that . Well, you couldnt see the color scheme. But you could see the basis for the probable cause is he has the facebook picture that shows the motorcycle not under a tarp and then he gets to the house and its under a cover, in the same spot. But its probably cause to arrest the driver. Its not probable cause to arrest the motorcycle. Its the driver that he was charging elusive driving. It is a Police Investigation in which hes ultimately trying to find the driver. First by verifying he is finding the motorcycle. You cant seize the motorcycle, putting aside the curtilage question . You have probable cause to believe that this person was driving that type of motorcycle. Its an honest question. I dont know the answer. Dont you have probable cause to then seize the instrumentality of the crime . I think that you do, your honor, but the curtilage i know the curtilage you cant really set that aside. Maybe this is the same question Justice Breyer was asking, but lets say the motorcycle was on the covered with a tarp, on the sidewalk, the little path to go to the door, in other words a place where he did have a license to go, right, he said im just going to go knock and talk, and its right there, would he have no. He couldnt seize that even with probable cause . That is outside the implied license of his ability to go and knock and talk at the door of that residence, your honor. He cant stop to perform additional searches or seizures. In other words, you have a license to go to the door and knock but you cant look at anything in the way. You sort of have to block it off. No, you have the right its an honest question, i dont know the answer. Dont you have probable cause to seize the instrumentality of the crime . I think that you do, your honor. But the curtilage, we cant set that aside lets say the motorcycle was covered with a tarp on the side not the sidewalk, the little path to go to the door, the place where he did have a license to go, right . He said im going to knock and talk, and its right there. No he couldnt seize that even with probable cause . No, that is outside the implied license of his ability to go and knock and talk at the door of that residence, your honor. So he cant stop to perform additional searches or seizures its not additional search. In other words, you have a license to go to the door and knock, but you cant look at anything in the way . You sort of have to block it off . No, you have the right to use your eyes. But you dont have the right to go beyond what a reasonably respectful person approaching the door would do, and stopping to examine or seize a motorcycle would be outside of that implied license. Now of course here the motorcycle is not even on the path to the front door. Hes not going to the front door. He testified he was not knocking and talking. He walked up solely to take the cover off, to see if this was the motorcycle that he had probable cause to think that it was. He had probable cause. I thought you admitted he had probable cause to believe that the thing covered by the tarp was the motorcycle that had eluded him by driving 140 miles an hour. Yes. Right . Yes. He has probable cause to search that motorcycle to find the vehicle Identification Number, which will tell him the owner of the motorcycle, which will help him arrest the person who committed this crime, right . Yes. So the case comes down to this. If the motorcycle were parked on the street or maybe further down the driveway and therefore not in the curtilage, they wouldnt need a warrant, they could search it. But because it was parked a few feet further away, although in a spot thats visible from the street, they could search it in the first instance because of the risk that the motorcycle would be taken away. But in the second instance, moved a few feet further up the driveway, still visible from the street, cant they cant search it because of the additional invasion of privacy that is involved in walking those few feet up the driveway. Yes, your honor. Thats what the case comes down to . Yes, the protections of the curtilage of the home, protected as part of the home itself, and for good reason. Officers are prevented from going into the curtilage of a home to prevent them from being, say, in the backyard where there might be a parking area where people are parking. To keep them from going into garages and things like that. The curtilage could the police have an interest in seizing or securing this motorcycle as soon as possible . No, your honor. Theres no exigent circumstance leave it sit there a couple of days and just get around to it . Isnt this, a, a dangerous item and it was used for a dangerous purpose . And the instrumentality and evidence of a crime . And its movable . Its the exactly the same as if he had seen something readily movable like drugs through the window of a house. He would have to get a warrant for that and its the same here. There are 49 other states in the federal government. The federal government has just been here and said the home is the core of the Fourth Amendment. Its the same as if it were a car but the car were unrepaired, all the tires were off the car and the hood was up and the engine was taken out, the same, no difference . Well, your honor, this court readily mobile can include a car thats wrecked. At some point maybe it becomes but readily mobile is not something thats examined on a casebycase basis you think its irrelevant, the immobility and ease of moving it, its irrelevant to this case, thats what you want us to see . It is not any more readily mobile than things that require a warrant mobility is irrelevant to this case . Yes, i will say that. I finally reserve the balance of my time. Thank you, counsel. Mr. Cox . Mr. Chief justice and may it please the court, officer rhodes search of the motorcycle should be upheld for three reasons. First, the search occurred outside the firm bright line of the house where the justifications for the automobile exception fully apply. Second, officer rhodes had probable cause before he ever stepped foot in your brief you seem to say that youre not you dont seem to say, you say youre not taking a position on whether an officer can break into a garage or walk into a garage thats closed but not locked. So you seem to be suggesting that the mobility of the automobile, wherever it is, permits the police to enter . Is that by force or without force . This court has never said that the mobility changes depending on where it is will you answer my question . That seemed to be what the court below us was saying, which is where the item is located is irrelevant. If its an automobile, whether in a garage or the motorcycle parked inside the living room, some people park their bikes inside, actually. Doesnt matter where it is, that that gives the police the right to enter and search . The Supreme Court of virginia did not impose that restriction, and this court has never ton that either. We think that it would make sense if the court were to draw a line here, although its not necessary, if it were to draw a line, it would make sense to draw it youre saying its not necessary, because the facts dont support it. But does the logic of their holding and your position require that outcome . Do we basically say, contrary to our rule that the curtilage is not part of your home. We know it is. Thats what weve said in case after case. So do we say now the curtilage is not part of the home for purposes of automobiles . Then how do i fit in the line . Sure, there are a couple of things baked in. Let me try to answer them in turn. We dont read jardeans and the other court cases like oliver as saying that the curtilage in the home should be treated the same for all purposes. For determining ones reasonable expectations of privacy you might treat the curtilage in the home the same and thats what jardeans seemed to suggest. Cited to oliver, one of the curtilage cases in footnote 11 they say, we do not say the curtilage in the home should be treated the same for all purposes. While it might be true for determining the reasonable expectations of privacy, its not binding on courts to say whats reasonable and whats not, based on whats the curtilage and the home. The Supreme Court of virginia did not place restriction on the automobile exception applying in one place versus another because this court hasnt done that. If the court were to draw the line and i recognize that youre trying to decide a lot of cases here, not just this one, that would be a good place to do it because that is the firm bright line that the court has recognized in a lot of other cases as well. So under that rule, though, police could as i understand your position search for cars in garages, closed garages, carports, anywhere on a property, no matter how closely attached, or even if firmly attached to the house . No, not everywhere on the premises, your honor. Not in the house but on the curtilage a garage is often considered a part of the house. If we say thats curtilage, which a lot of cases in the past at least have suggested, and we deem a barn, a garage, curtilage, the police can without a war rapt search for a car there under your rule . If its not part of the dwelling. Fit is part of the dwelling, no, they could not search it. Not many people live in their garage. Some people do, and in barnes. But usually though reserved for cars and animals. S. But usually though reserved for cars and animals. Cars and animals. Youre suggesting in those places police can search without a warrant, correct . Garages are common hi used for a lot of residential purposes, they might have storage out there, an extra refrigerator, somebody might be living out there, if a teenager gets too rambunctious, put him out in the garage. I want to ask you two questions. The first is to be sure i have the basics right. Yes. Okay . The basics question is, weird hypothetical, but im using a weird hypothetical for illustration. The mad art burglar has just stolen the thinker. Rodans thinker from the museum, it weighs 2,000 pounds, and with his confederates hes put it in his new glass house. The policeman stopping on the sidewalk looks in the window and sees, my god, there it is, the thing hes just stolen. I thought the law is that that policeman cannot go into the house until he gets a warrant. Yes. Thats the law. Thats my understanding. The thinker is not going to escape, it weighs 2,000 pounds. Unless there is some exigent circumstance to justify it. Fine. The other principle is, its not the thinker. Its a wisp, a wispy bit of very suspicious drug smoke. As soon as he sees the smoker, as soon as he gets an inclination of a policeman around, i tell you where all that drug is going to be, right down the sink. Okay . In that case he doesnt need a warrant. Because theres exigent circumstance. Is that right . Thats right. If the destruction is imminent. In this case you dont have the exigent circumstance, youve ruled that out . I think you do have you might have it but thats not in front of us, thats not why we took the case, thats not what this is about, right . Theres a categorical exigency to automobiles theres two examples. One, its curtilage, not house. And two, it is a movable thing like a police like a car. Okay, so the question is, moreover, the policeman didnt know with any certainty, he certainly suspected, maybe had probable cause, but he didnt know thats the right motorcycle. If all those things are true, hypothetically, its as if, though its the curtilage, he saw in the middle of the driveway a box. And he thought inside that box there might an motorcycle, or drugs, or something. And can he go up, without a warrant, and without there being exigent circumstances, to open the box to look to see if inside there are drugs, or a motorcycle . I thought that was this case. And even though, and i think you want to say, yes, he can, if its a motorcycle, but not if its a box. A box carries a motorcycle like a tarp, you can say yes, you want to say yes, i would just wonder why. Its on the driveway. Its in part of his house. I know that the motorcycles movable. But there is no exigent circumstance. He wants to look into the box. Open the tarp. Why does the Fourth Amendment permit that . Okay, thats a long, long question. I just needed the basics. Now ive got to my point. Im sure youll correct me if i misstate what the hypothetical says. My understanding is that there was a virtual certainty here that this was the same motorcycle under the tarp. So there was not an uncertainty about what was under the box, as it were. The court, to the second part, the court has also treated other closed containers differently than vehicles. In the ross case, in acevedo, they have said, containers are different than automobiles, because of the move ability of them is just far greater than the move ability of other items. And there was a debate. There were some predecessors of yours on the court who wanted to suggest that closed containers should be treated the same. A couple of justices in coolidge who thought that was the case. They ended up in the dissent in ross. And certainly in the minority in acevedo. I thought your point was that you understood on the automobile exception for it to have include a categorical exigency aspect. In other words, while its not the case that you see the guy revving up the motorcycle, about to take off, which would be an exigent circumstance but you think because you want to extend or apply the automobile exception to stationary vehicles within the curtilage, because you think all the guy has to do is he sees the police officer, he runs out of the house, starts it up, and goes away. Yes, your honor. I think thats one of the least controversial points in this case is that because this court has repeatedly held that a car doesnt actually have to be moving or with somebody there with a key ready to jump on it that goes back to my basic question. Which is, how do i differentiate the car in the garage, if or the car through a window that you can see. You about say that exigent circumstance thats what the Virginia Court appeared to say, that it created an absolute rule. The police can break into anything, go anywhere where they see the car, whether theyre at that place legitimately or not. Yes, this court has treated it as an absolute rule. And thats the rule you want us to uphold . It could. I mean, you could just apply that rule to this case and not make any new law then we should go ahead and do the same thing for drugs and papers too, because entech, we can overrule entech while were at it, going back to the founding. They have a fireplace, they have a chimney, they can destroy the papers we see through the window. Or the drug. We know they have indoor plumbing. They can be readily destroyed too. Whats the difference between the destruction of drugs and papers in a home and a car in the garage . So this gets to Justice Sotomayors question as well. There is a little bit less mobility inside the garage. Theres also more expectation of privacy in a garage the difference between opening a garage door and just walking out and getting into a car is de minimis. It happens just as quickly. What i said september totally satisfactory. In mcneely you said you dont really look at the policy justifications behind if the dissension, and there is no real dissension, why as Justice Gorsuch suggested, youre asking us to expand the automobile exception dramatically, and to basically make an alltime exception forever. Even if the driver even if the police know that the driver of this car is away on vacation and wont be returning for two weeks. Even if they know that, theyre not required to go to a magistrate and get a warrant . Your honor, thats been this courts law for decades. And i wouldnt see it as expanding it when i look at the automobile exceptions, history going back to carroll, it was actually an originalist opinion that looked at cars and analogized them to ships and vessels. Going all the way back to 1790. And said thats different than homes or curtilage. And cars are like vessels. On the open sea or in port. It never suggested that you can go look for one in a home. That was never the basis. It was, you can search something that is on the open seas or in a harbor or on the streets. Not that you can go into a home to find one. That seems to me categorically a category mistake youre making in your argument. Can you help me with that . I wouldnt say its a mistake in my argument, it would be maybe a mistake in the Supreme Courts jurisprudence not to limit it to that extent i cited the Supreme Courts jurisprudence in carroll, im not sure its fair to point the arrow in this direction. Carroll did involve a car that was on the street, but there have been many cases since then in the 90 years since carroll where its been applied when the car is totally immobile and not on the open road. It has been a trajectory of the vehicle exception ever since then mr. Cox, one of the things youre saying is we basically should give we shouldnt Pay Attention to the fact that this was on the curtilage. And you said earlier to a different question, you said, well, youre committed by jardeans to treat the curtilage as the home for expectation of privacy, but for other purposes you can make a distinction between the two. Id like to know more about that. For what other purposes can you make a distinction between the two . And why can you make a distinction between the two for those purposes when you cant make a distinction between the two for this fundamental question of where you have an expectation of privacy . Sure. Well, certainly oliver opened the door to that argument that the court said, were not saying its the same for all purposes. And one example that we cited on brief was the difference between santana and payton, where you can have a warrantless arrest outside the house, right, even if its on the front steps, but you cant have one inside. Because thats just beyond the pale. To be on the threshold, beyond the firm bright line this court has drawn. Another example im sorry, i just want to get the answer to my question. Which is, for what purposes would you treat the curtilage differently from the home, and why there but not for the reasonable expectation of privacy question . So for what purposes first, and then why . You cannot search inside the house without a warrant unless there are exigent circumstances or if theres consent. And thats a line that this court has drawn. And the automobile exception is also a categorical rule. We find them in friction. So the court has to decide whats reasonable mr. Cox, its really a simple question. For what purposes would you say that the curtilage is not the house . For purposes of when you have probable cause to search and a warrant exception applies, then you dont treat them the same. And why is that why would you not treat them the same for purposes of when you need a warrant, if you do treat them the same for deciding whether theres a reasonable expectation of privacy in them . Well, the court said in ross that when the automobile exception applies, you are committed to the same search with the same scope as you would be if you had a warrant. So the only thing thats different is having a warrant. And so as long as the investigating officer sticks to that as the officer did here, youre not going outside the scope of the warrant. See, i dont know, when i read jardeans, heres what i take it to say. I take it to say is home is the most sacrosanct of places. And actually we dont think the home stops at the door, we think that there are some areas, like the porch and like the driveway or whatever, and we can argue about exactly what those areas are. But there is some areas which are just as sacrosanct as your living room. Thats what i take jardeans to say. In that case i think you lose here. If thats the case, we have a much harder case to make. But i dont rule jardeans as overruling santana, i dont read it as creating a knock and announce rule at the curtilage remind me what you said about the closed garage at the door. Would that be treated like the home . Yes. Now that there is a real problem. Because youre making a distinction between people who can buy houses with garages and people who are less wellheeled and have a port or patio for the car instead of a garage. So that distinction seems to me really troublesome. Between garage and carport. I guess what i would say is the Fourth Amendment protects the same quality of privacy, maybe not the same quantity of privacy, for everyone. Even the dun factors incorporate that. If you have enough money to build a huge wall, then thats going to impact the analysis of whether that area is protected or not. I dont know why youre im not sure why youre arguing if i understand your answers to justice kagan, you seem to say, okay, lets say the probable cause is based on the fact that you know that the drugs are in the by foot orange boxes and you see in the carport foot by foot orange boxes are and you seem to be treating that the same as the situation when you have the motorcycle or automobile. But i thought part of your argument was that the automobiles were inherently different because somebody could just jump on the motorcycle and ride away, while they wouldnt have the same mobility issues with respect to the box, the orange boxes. Now are you arguing is your argument extend to immobile items in the carport . Because its curtilage rather than the house . Or is it limited to the mobility or is it limited to the mobility thats characterized in the automobile semexception . Yes, thats just that. Tan tand the problem we had that was like the house. Which if you had the automobile in the house, which is not jay lenos house, where you have dozens of rare cars, or the porsche in farris buhler, are you saying you can go in there because its mobile . You dont recognize the distinction between the curtilage and house for purposes of the vehicles that are mobile . The court has laid down a categorical exception. If you were to draw the line we think its the house because its used in other Fourth Amendment jurist prudence. It doesnt need to reach that here. There are argument that is the mow abl mobility stays the same whether in the house or outside the house. But if you have to draw the line that is the sensible way to do it. The Fourth Amendment says people have right to be secure . Their homes, person and effects. So the curtilage issue goes to the question of whether it is a search of the home. If its not in the curtilage, then its not a search of the home. The Fourth Amendment doesnt apply. But once you get beyond that, it is a search of the home, the ultimate Fourth Amendment question is always is it a reasonable search. Thats where we are here. Is it reasonable . Its a balancing of interest. Thats what reasonableness meant at the end of the 18th century. Its what it means today. So have you to grapple with the real privacy interests involved in the case versus the other considerations, namely the mobility of the automobile. And that i understand your argument to be is why its reasonable to draw a distinction between an enclosed place, like the house or garage, and an open place like a driveway, even if it technically falls within the curtilage. Thats correct. And the search that occurred here was very reasonable. Limited in scope. See, the problem i have is the court basically said the absolute rule, not a balancing test. It said you can search any place where a car is. Because thats what the automobile exception permits h but thats a very broad statement that would permit search of the garage or the automobile inside the house. You have a strong argument and still with the court below if it had said given the nature of this drivers reckless illusion of the police previously, exigent circumstances existed in this case, all right, or Something Like we dont know where the owner is and he can come back immediately and get the car. Thats not the analysis the court made. Thats true. The court of appeals of virginia did decide on exigency grounds because mr. Collins had been alerted to the polices vehicle. It didnt reach that. It said the only automobile exception permits the search of any car no matter where it is in the home. Court of virginia but the court of appeals below them exigency grounds. Supreme court. Right. And they didnt make their own exigency analysis. We would rather win on the categorical exception. But clearly think there were exigent circumstances here beyond that in the automobile exception. That would be a question for reman because it wasnt reached by the virginia Supreme Court. We would be confident if it were remanded we would prevail on that, yes, your honor. Officer roads had probable cause before he knew it was stolen. He said the officer had probable cause to believe tit was stolen. And there was testimony to support that. Probable cause h you dont need a warrant, and thats the automobile exception. Is there any other exception like that where the test of whether you need if you have probable cause, forget it, forget the warrant, thats probable cause is enough . Well, i think under plain view, you would have to have some probable cause to believe what you were seeing was contraband or otherwise evidence of crime. I think there is some analysis going into knowing. The fact that this motorcycle was in plain view subject to the tarp being on it was a factor in the decision by the Supreme Court of the state of virginia, was it not . Hi thought they relied upon the fact that it was in plain view with the tarp on it. I think that is mentioned. But i think the probable cause that existed was formed at least in part by the comparison of the photograph on the facebook page. And when officer rose walked up at the end of the driveway and could see the same thing. But it was in plain view. It was. Its not as if there was a closed garage and they went in and opened the garage. Thats right. And you wouldnt be able to go up to the edge of the garage, assuming there was curtilage out there, and look in there. The probable cause was formed before he stepped foot on the driveway. Was there one search or two search there . We submit one search the search of the motorcycle. Thats right. Why is that . Why isnt there search of the motorcycle but there is really the search of the curtilage which happened to be for the motorcycle, but search of the curtilage, its a different search entirely . We look at it as one search because it object of the search that you are entitled to search, whether its under a warrant or warrant exception. And you look at it by its not a separate search for each access point. You wouldnt have gotten two if you went to a magistrate. You wouldnt get a warrant to search the motorcycle and then another one to search the driveway. So we see it for one search as that reason. Does that mean without a warrant that you always have access to a place if there is a reason that you can see stg that you might find within the place . Im hesitant to speak beyond the automobile exception but i think the automobile exception would give you that ability unless there was some other rule that prevented you from doing it, such as automobile exception doesnt apply in the house. And ill say, to go back to Justice Gorsuch question to the original understanding of this all along its been based between vehicles and houses, dwellings. At first, it was the difference in mobility. But then later in cases like katie and card wall and carney, also speak of the privacy if you have a vehicle or fixed dwelling. So if the court were to draw a line, it it would certainly have some healthy pedigree in the previous courts decision. Unless there are further questions, thank you. Thank you, mr. Cox. Mr. Fitzgerald, four minutes remaining. Thank you. Just a few points. Rebuttal here. So the curtilage is protected as part of the home. And if we look back historically speaking h the automobile exception is borne at a traffic stop in the 1920s. The automobile exception as it is created makes sense in that context. But the automobile exception has grown r its become a categorical exception. We no longer look fok exigency on a casebycase basis. And now the automobile exception is literally knocking at the door of the house. And the question is whether to apply this exception created based on exigent circumstances in 1925 to a search of the curtilage of a home. And now on the states argument, even their back up argument, even what they give up, there easily could have been probable cause to think this motorcycle was at this residence if it were around hyped the house f the driveway went a little farther, and it should not be that searching for an automobile or what might be in an automobile would get police around a house like that, around to the backdoor, where there might be in this karks side door, sliding door, where if you are standing where this motorcycle is, you can see directly into the side door of the house. And you can see just a little bit at the petition of a pppend page 112. Curtilage is linked to the home this court said in jardinas. We submit that the bright line rules for officers which is when they go to a known address to look for contra brand, even readily mobile chondrontra branh them, they bring a warrant. If there are no further questions, i respectfully ask the court to reverse. Thank you, counsel. Case is submitted. On thursday, former secretaries of state, Henry Kissinger and george schults and former deputy of state testify before the Senate Armed Services committee on u. S. National security strategy. You can watch that live at 10 00 a. M. Eastern on cspan. And friday President Trump addresses the World Economic forum in davos, switzerland. First sitting u. S. President to address the forum since clinton. 8 00 a. M. Eastern on cspan 2. American history tv on cspan 3 this week in prime time. Tonight at 8 00 p. M. Eastern, historians attending the Conference Look at how American Veterans are being remembered and honored since world war ii. Thursday night at 7 00 p. M. Eastern, he liwe are live in mu on the 1968 vietnam war ted offense and battle of away. And 8 00 p. M. Western lincoln scholar Harold Holzer on Abraham Lincoln friends and enemy. Watch American History tv on cspan3. With landmark cases returning next month for season two, cspan senior history producer mark shared some background on the upcoming series. By popular demand returning. Its coducks with us and the National Constitution center. And as i listened to the callers this morning, they are talking about race, and powers of congress, constitution, and immigration. And so what we have in season two are landmark Supreme Court cases that take you through the history of the country and deal with all these cases that really have something to do with today. Along with the National Constitution center, we had a very, very long set of cases, and what we wanted to do was really take cases ahead of Human Interest story to them. Because in the end these cases effect human beings across the country. So the cases came down to did they have an impact in their time. Did they change the court. Did they change the country in their team. And how relevant are they today. And all of them are relevant today. First case mccul a versus maryland is overrule the state. Yick would versus hopkins, 188 6 all about immigration. Well have guests in washington and well have producer go out around the country to the places that helped sell the story. For wo well go to San Francisco about lawn droe mats. For civil rights cases that was case overturned t after that jim crow laws went into effect. Frederick douglas makes an amazing speech a week afterwards. So well take you to the place he makes the speech. So well talk about how these shows are relevant today. Be sure to watch season 29 p. M. Eastern live on cspan, cspan. Ord or listen with the radio app. And to help you better understand each case, we have a companion guide written by landmark cases volume two. The book costs 8. 95 plus shipping and handling. To get your copy go to cspan. Org landmark cases. Cspan where history unfolds daily. In 1979, cspan was created as a Public Service by americas Cable Television companies and brought to you by your cable or satellite provider. Next, discussion of a new study that examines the decline in manufacturing jobs. Economists address various factors, including trade and outsourcing. As well as trends in capital manufacturing. This hour and a half hosted by the Economic Policy institute in washington