No. 16-1027444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

RYAN AUSTIN COLLINS, Petitioner,v.

COMMONWEALTH OF VIRGINIA, Respondent.____________________On Writ of Certiorari

to the Supreme Court of Virginia____________________Brief Amicus Curiae of

Conservative Legal Defense and EducationFund, United States Justice Foundation,

Downsize DC Foundation, DownsizeDC.org,Restoring Liberty Action Committee, Gun

Owners Foundation, Gun Owners of America,Inc., Citizens United Foundation, CitizensUnited, The Heller Foundation, and PolicyAnalysis Center in Support of Petitioner____________________

JOSEPH W. MILLER HERBERT W. TITUS*U.S. Justice Foundation ROBERT J. OLSON 932 D Street, Ste. 2 WILLIAM J. OLSONRamona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amici Curiae WILLIAM J. OLSON, P.C.USJF and RLAC 370 Maple Ave. W., Ste. 4

Vienna, VA 22180MICHAEL BOOS (703) 356-5070

Citizens United wjo@mindspring.com1006 Pennsylvania Ave SE Attorneys for Amici CuriaeWashington, DC 20003

Attorney for Amici Curiae *Counsel of RecordCitizens United and November 20, 2017Citizens United Fdn.444444444444444444444444444444444444444444

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TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF THE AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT

I. THE AUTOMOBILE EXCEPTION CONFLICTSWITH FOURTH AMENDMENT PROPERTY RIGHTS . 4

A. Automobiles and Other Moving VehiclesAre Protected Fourth Amendment“Effects” . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Automobile Exception Is Based onthe Erroneous Claim that ReadilyMobile “Effects” Deserve Less FourthAmendment Protection . . . . . . . . . . . . . . . 6

C. The Automobile Exception Cannot BeJustified by an Appeal to a “LesserExpectation of Privacy” . . . . . . . . . . . . . 11

II. THIS CASE REQUIRES THE COURT TO RE-EVALUATE THE AUTOMOBILE EXCEPTION . . . . 13

A. This Case Cannot Be Decided withoutApplication of Jones and Jardines . . . . . 13

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B. The Automobile Exception Cannot Be Applied to Override Fourth Amendment Protections . . . . . . . . . . . . . 17

C. Probable Cause that the Motorcycle Was Contraband Does Not Obviate theWarrant Requirement . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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TABLE OF AUTHORITIESPage

HOLY BIBLEJudges 21:25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

U.S. CONSTITUTIONAmendment II . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19Amendment IV . . . . . . . . . . . . . . . . . . . . . . 2, passim

CASESCady v. Dombrowski, 413 U.S. 433 (1973) . . . . . . 18California v. Carney, 471 U.S. 386 (1985) . 2, passimCoolidge v. New Hampshire, 403 U.S.

443 (1971) . . . . . . . . . . . . . . . . . . . . . . 16, 20, 21Florida v. Jardines, 569 U.S. 1 (2013) . . . . 3, passimHorton v. California, 496 U.S. 128 (1990) . . . 20, 21Maryland v. Dyson, 527 U.S. 465 (1999) . . . . . . . 19New York v. Class, 475 U.S. 106 (1986) . . . . . . . . 20South Dakota v. Opperman, 428 U.S.

364 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16United States v. Ackerman, 831 F.3d 1292

(10th Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . 10United States v. Jones, 565 U.S. 400

(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, passim

MISCELLANEOUS2 W. Blackstone, Commentaries on the Laws of

England (U. Chi. Facs. ed. 1766) . . . . . . . . 9, 10H. Titus and W. Olson, “U.S. v. Jones: Reviving

the Property Foundation of the Fourth Amendment,” 3 CASE W. RES. JOURNAL OF LAW, TECHNOLOGY & INTERNET 243 (Jan. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

INTEREST OF THE AMICI CURIAE1

Conservative Legal Defense and Education Fund,United States Justice Foundation, Downsize DCFoundation, Gun Owners Foundation, Citizens UnitedFoundation, The Heller Foundation, and PolicyAnalysis Center are nonprofit educational and legalorganizations, exempt from federal income tax undersection 501(c)(3) of the Internal Revenue Code (“IRC”). DownsizeDC.org, Gun Owners of America, Inc., andCitizens United are nonprofit social welfareorganizations, exempt from federal income tax underIRC section 501(c)(4). Restoring Liberty ActionCommittee is an educational organization. Theseorganizations were established, inter alia, for purposesrelated to participation in the public policy process,including conducting research, and informing andeducating the public on the proper construction ofstate and federal constitutions, as well as statutesrelated to the rights of citizens, and questions relatedto human and civil rights secured by law.

These amici have been active in the protection ofthe Fourth Amendment. Many of these amici filed twoamicus briefs in this Court in United States v. Jones,as well as filing the only amicus brief in support of thepetition for certiorari in this case.2

1 It is hereby certified that counsel for the parties have consentedto the filing of this brief; that no counsel for a party authored thisbrief in whole or in part; and that no person other than theseamici curiae, their members, or their counsel made a monetarycontribution to its preparation or submission.

2 Brief Amicus Curiae of United States Justice Foundation, et al.in Collins v. Virginia (Mar. 27, 2017).

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SUMMARY OF ARGUMENT

Petitioner’s brief presents a compelling argumentas to why the so-called “automobile exception” shouldnot be permitted to trump the Fourth Amendment’sprotections of the home and its curtilage in this case. In reality, though, no judicially created “exception”should be permitted to trump any of the FourthAmendment’s protections. Yes, the home is “firstamong equals,” but “persons,” “papers,” and “effects”are just that — equals — and thus equally deservingof this Court’s protection.

Over several decades, this Court’s automobileexception has been invoked to allow the Governmentto run roughshod over Fourth Amendment protections. In this case, Virginia’s highest court has permitted anexception that applies to an automobile to become anexception that now permits the police to search andseize without a warrant any “person,” “house,” “paper,”or “effect,” if in the vicinity of an automobile — or amotorcycle.

In 1985, this Court took a pragmatic approach tothe Fourth Amendment in California v. Carney —applying the automobile exception based on theperceived needs of 20th century law enforcement tocarve out an exception to the Fourth Amendment’swarrant requirement carefully crafted in the 18th

century. Relying on an atextual “expectation ofprivacy” standard, this Court labored to make it easierfor the police to do their job, disregarding theimportant limitations imposed on the Government bythe framers and the people in the U.S. Constitution.

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In 2012, however, this Court rejected the primacyof the “expectation of privacy” analysis in FourthAmendment cases, returning to First Principles inUnited States v. Jones. There, the Court faithfullyapplied the Constitution’s unchanging 18th centuryprinciples to a 21st century problem — and establishedthat the Fourth Amendment’s protections apply just asstrongly today as they did when adopted. Then, thisCourt protected an automobile — an “effect” — fromwarrantless interference of the police in placing a GPSdevice, based on the common-law trespass rule, whichis equally protective of real property and personalproperty, including automobiles, which have alreadybeen deemed to be “effects.”

Although at one time at common law “immoveable”property was often given greater protection than“moveable” property, no such distinction existed by1766 when Blackstone wrote his Commentaries. There, he explained that both categories of propertywere “regard[ed] ... nearly, if not quite, equal....” ThisCourt recognized in Jones, and the next yearreiterated in Florida v. Jardines, that its “reasonable-expectation-of-privacy” test must not be allowed todisplace or diminish the common-law trespassory testthat long preceded it.

At each stage of this litigation, Petitioner hasmade a Jones-based property argument — that, byentering the curtilage of his home and rummagingaround therein, the police violated the FourthAmendment’s property rights “baseline.” The trialcourt did not understand this argument, the Court ofAppeals dismissed it without serious consideration,

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and the Supreme Court of Virginia ignored it. Hopingfor a similar result, the Government has attempted todivert the focus of this Court from the central FourthAmendment property issue. It is now the duty of thisCourt to restore order in Virginia and again demandthe Fourth Amendment as written be honored by theGovernment.

ARGUMENT

I. THE A U T O M O B I L E E X C E P T I O NCONFLICTS WITH FOURTH AMENDMENTPROPERTY RIGHTS.

A. Automobiles and Other Moving VehiclesAre Protected Fourth Amendment“Effects.”

In his Summary of Argument, Petitioner contendsthat the Virginia Supreme Court erred in adopting “a‘bright-line’ rule that the automobile exception trumpsthe Fourth Amendment protections for the home andcurtilage.” Brief for Petitioner (“Pet. Br.”) at 8. Theseamici agree. As Petitioner points out, “[t]he FourthAmendment presumptively requires a warrant tosearch a home” including “the curtilage, which is ‘partof the home itself for Fourth Amendment purposes.’” Pet. Br. at 8 (citing Florida v. Jardines, 569 U.S. 1, 6(2013)). In fact, this same presumption should applyequally to “persons ... papers, and effects....”

To be sure, Jardines acknowledges “when it comesto the Fourth Amendment, the home is first amongequals” (id. at 6) — as Petitioner avers (Pet. Br. at 10)

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and as the constitutional text attests. See UnitedStates v. Jones, 565 U.S. 400, 404-05 (2012). However,in Jones, the Court emphasized that the FourthAmendment protects “private property” generally,spelling out four independent categorical propertyinterests, none of which is less important thananother. See id. at 404.

Even more aptly here, the Jones Court specificallyruled that “[i]t is beyond dispute that a vehicle is an‘effect’ as that term is used in the Amendment.”3 Id. at404. At issue in Jones was whether it was permissiblefor the Government to conduct a warrantless search byattaching a GPS device to an automobile. Unhesitatingly, the Court ruled in the negative,without voicing any regard for the fact that thetracking device was being used “to monitor thevehicle’s movements on public streets.” Id. at 402. Without discussing the “automobile exception,” theCourt ruled that the Government’s intrusion onJones’s vehicle violated the Fourth Amendment’s“common-law trespass” rule, which is equallyprotective of personal and real property. Id. at 404-05.

Just as there is no modifier limiting “houses,”there is no modifier attached to “persons,” “papers,” or“effects.” Whatever presumption applies to “houses”should apply to the others. Indeed, the Jones Courtruled, the “text of the Fourth Amendment reflects itsclose connection to property,” and the common law oftrespass, whether applied to real property or personal

3 See Pet. Br. at 26.

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property, would offer the same constitutionalprotection. Id. at 405. As Petitioner contends here,the automobile exception not only “trumps FourthAmendment protections for the home and curtilage”(Pet. Br. at 1), but also erases the Amendment’swarrant protection of an important category of“effects” just because, in the Court’s eyes, motorvehicles are “readily mobile,” offering only a “fleeting”target for a constitutionally valid search. SeeCalifornia v. Carney, 471 U.S. 386, 390-91 (1985).

B. The Automobile Exception Is Based onthe Erroneous Claim that Readily Mobile“Effects” Deserve Less FourthAmendment Protection.

As pointed out by Petitioner, the Supreme Courtexplained in Carney that the automobile exception issupported by two rationales. Pet. Br. at 18. First, theCourt stressed that the automobile’s intrinsic “readymobility” necessitated less Fourth Amendmentprotection because, as a practical matter, theautomobile “‘creates circumstances of such exigencythat ... rigorous enforcement of the warrantrequirement is impossible.’” Carney at 391. Second,the Court added, “‘less rigorous warrant requirementsgovern because the expectation of privacy with respectto one’s automobile is significantly less than thatrelating to one’s home or office.’” Id. at 391.

Throughout his brief, Petitioner has ably arguedthat neither of these rationales supports theapplication of the automobile exception to the facts ofthis case. See Pet. Br. at 10-38. Although this Court

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could readily reverse with a decision limited to thefacts of this case, these amici urge this Court to fullyimplement the venerable Fourth Amendment propertyprinciples recently rediscovered and restored to theirrightful place in Jones and Jardines. AlthoughPetitioner rightly argues that, like Jardines concernsthe Fourth Amendment’s protection of his propertyinterest in the curtilage of the home (see Pet. Br. at 8-15 and 33-37), he does not focus on the Jones rulingupon which Jardines rests. See Pet. Br. at 26 and 36. A careful examination of both Jones and Jardines nowreveals that both rationales upon which this Court hasrelied to support the automobile exception conflictdirectly with the property principles laid down andapplied in those two watershed cases.

As the 1985 Carney Court explained, theautomobile exception did not originate with anexamination of the Fourth Amendment text, but grewout of a series of cases wherein the Court had graftedinto the text an exception on the pragmatic groundthat the “ready mobility” of the automobile wouldmake it too difficult for the Government to enforce thelaw and at the same time conform its action to theConstitution’s warrant requirement. See Carney at390-91.

In Jones, the Court took a very different approach, beginning and ending its analysis with First Things —the original meaning of the Fourth Amendment text. See Jones at 404. To that end, Justice Scalia notedthat the Government had, by the installation of theGPS device on a privately owned motor vehicle,“physical[ly] intru[ded]” upon the owner’s private

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property which “would have been considered a ‘search’within the meaning of the Fourth Amendment when itwas adopted.” Id. at 404-05. And it was that originalmeaning of the Fourth Amendment that controlled theinstallation of the GPS device, not the felt necessitiesof modern law enforcement.

The contrast of methodology and constitutionalphilosophy between the 1985 Carney Court and the2012 Jones Court could not be more stark. The Carneymajority focused on tailoring a late 18th centurycovenant protecting individual rights, trimming it tofit the current policy preferences of law enforcement. The Jones majority focused on the judicial task ofapplying the permanent principles as written in a 1791text to modern law enforcement technologicaldevelopments. In 2012, the Constitution-as-it-was-written won out, restoring “Fourth Amendmentjurisprudence [to its historic] tie[] to common-lawtrespass.” Jones at 405. So after Jones, the thresholdinquiry is an historic one, a search for the originalprinciples embraced by the text of the FourthAmendment.4 According to Jones, for most of ourhistory, the Fourth Amendment was understood toembody an aversion for government trespass upon theareas (“persons, houses, papers, and effects”) itenumerates. Id. at 405.

If the automobile exception is to be justifiedaccording to the property principle embraced in Jones,

4 See H. Titus and W. Olson, “U.S. v. Jones: Reviving the PropertyFoundation of the Fourth Amendment,” 3 CASE W. RES. JOURNALOF LAW, TECHNOLOGY & INTERNET 243 (Jan. 2013).

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there must be evidence in the common law at the timeof the founding of a principled distinction between“moveable” and “immoveable” property. No suchevidence has been offered. Rather, there is excellentauthority to support the absence of such a distinction.

In his chapter on the rights of things personal,Blackstone introduces his topic with the observationthat there was a time when “things moveable [were]not [as] esteemed [as] things that are in their naturemore permanent and immoveable,” but that those dayshad faded, and by the 18th century Blackstone couldwrite that there was ample evidence of comparabilitybetween the “more permanent and immoveable, aslands, and houses” and “all a man’s goods andchattels”:

since the introduction and extension of tradeand commerce, which are entirely occupied inthis species of property, and have greatlyaugmented it’s quantity and of course it’svalue, we have learned to conceive differentideas of it. Our courts now regard a man’spersonalty in a light nearly, if not quite, equalto his realty.... [2 W. Blackstone,Commentaries on the Laws of England, 384-85(U. Chi. Facs. ed. 1766).]

Elaborating further, Blackstone explained that:

Chattels personal are, properly and strictlyspeaking, things moveable; which may beannexed to or attendant on the person of theowner, and carried about with him from one

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part of the world to another. Such areanimals, household-stuft, money, jewels, corn,garments, and every thing else that canproperly be put in motion, and transferredfrom place to place. [Id. at 387.]

Although there was a categorical distinction atcommon law between immoveable real property,including “houses,” and moveable things, such as“papers” and “effects,” the common law of trespassapplied to them both. And, as Jones declared, since“our Fourth Amendment jurisprudence has been tiedto common-law trespass, at least until the latter halfof the 20th century,” it was time to return to theconstitutional text which made no distinction betweenmoveable and immoveable property, treating “persons,houses, papers, and effects” as equally protected fromunreasonable searches and seizures.

Applying the Fourth Amendment and the Jonesdecision to a search of email attachments (i.e., digitalpapers and effects), then-Judge Gorsuch explained: “the warrantless opening and examination of(presumptively) private correspondence that couldhave contained much besides potential contraband forall anyone knew ... seems pretty clearly to qualify asexactly the type of trespass to chattels that theframers sought to prevent when they adopted theFourth Amendment.” United States v. Ackerman, 831F.3d 1292, 1307 (10th Cir. 2016). And, as Justice Alitonoted in his concurring opinion in Jones: “At commonlaw, a suit for trespass to chattels could be maintainedif there was a violation of ‘the dignitary interest in theinviolability of chattels’....” Jones at 419, n.2 (Alito, J.,

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concurring). Truly, adherence to Jones leaves no roomfor the automobile exception.

C. The Automobile Exception Cannot BeJustified by an Appeal to a “LesserExpectation of Privacy.”

As Petitioner points out in his brief, the CarneyCourt attempted to bolster the automobile exception bythe proposition that, because “automobiles carry alower expectation of privacy,” the exception stillapplies, even if a particular motor vehicle is not“readily mobile.” See Pet. Br. at 18. Petitioner rebutsthe applicability of this rationale to the facts of thiscase involving a motorcycle parked within thecurtilage of a home in which the owner has a highexpectation of privacy. See, e.g., Pet. Br. at 15-16. Inreality, though, the Jones property principle does notrequire the Court even to reach the privacy issue.

In Jones, Justice Scalia devoted a good portion ofthe Court’s opinion to establishing that the Court’s“reasonable-expectation-of-privacy test has been addedto, not substituted for, the common-law trespassorytest.” Jones at 409. And, as Justice Sotomayorexplained further in her concurrence, this Courtacknowledged that “the Fourth Amendment is notconcerned only with trespassory intrusions onproperty” (id. at 414):

Rather, even in the absence of a trespass, “aFourth Amendment search occurs when thegovernment violates a subjective expectation of

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privacy that society recognizes as reasonable.” [Id.]

Thus, Justice Sotomayor concluded, the Court’s“reasonable-expectation-of-privacy test augmented,but did not displace or diminish, the common-lawtrespassory test that preceded it.” Id. (emphasisadded). Yet that is exactly what the automobileexception has done, and more particularly did here —negating the common-law trespassory test as appliedto a motorcycle, an “effect” in its own right, andtherefore, within the protective shield of theAmendment.

In Jardines, decided a year after Jones, the Courttook the opportunity to reaffirm the primacy of theproperty principle established in Jones. It declined toconsider the Florida government’s argument that theFourth Amendment was not violated because the useof a dog to investigate the curtilage of a home does notimplicate any “legitimate privacy interest[s].” Id. at10. In explanation, the Court reiterated what it hadpreviously stated in Jones, that the reasonable-expectation-of-privacy test may “add” but “not subtractanything from the Amendment’s protections ‘when theGovernment does engage in [a] physical intrusion of aconstitutionally protected area.’” Jardines at 5.

In short, Jones and Jardines preclude not just theapplication of the automobile exception in this case,but also preclude the application of that exception inevery case because the exception’s very design andeffect is to “lessen” the Fourth Amendment protectionagainst warrantless searches of automobiles. In every

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such case, the automobile exception would underminethe “Fourth Amendment’s property-rights baseline.” Jardines at 11.

II. THIS CASE REQUIRES THE COURT TO RE-E V A L U A T E T H E A U T O M O B I L EEXCEPTION.

A. This Case Cannot Be Decided withoutApplication of Jones and Jardines.

No doubt, the Government very much would likethis Court to resolve this case as though it were justanother “reasonable expectation of privacy” caseinvolving the “automobile exception.” That approachmight allow the Court to sanction the warrantlesspolice search of the curtilage of the home, without theneed to resort to the Fourth Amendment. Both the“reasonable expectation of privacy” test and the“automobile exception” are atextual — invented out ofwhole cloth by the Judiciary. Applying that exception,this Court could simply declare, as the court below did,that Mr. Collins had “no reasonable expectation ofprivacy in a vehicle parked on private property yetexposed to public view” (Collins v. Virginia, 790 S.E.2d611, 619 (Va. 2016)) and, for that reason, the FourthAmendment simply does not apply. Using those tests,the Court would not only bypass the text of the FourthAmendment, but also ignore its context, its purpose,and its common-law foundation. Rather than applyingthe law of the Constitution, this Court could, as in the

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days of the book of Judges, simply do what it feels isright in its own eyes.5

But this is not a case that can be resolved based onatextual “expectation of privacy” grounds. And prior“automobile exception” cases cannot be appliedmechanically to this case, as if that decades-oldexception exists in its own cocoon, and as though thisCourt’s historic return to the property foundation ofthe Fourth Amendment had not occurred. The truthis that Jones and Jardines, have dramatically changedthe legal landscape of the Fourth Amendment,particularly as it applies to intrusions onto realproperty.

As these amici curiae noted in their earlier amicusbrief filed in support of Collins’ Petition for Certiorari,Petitioner advanced a well-grounded, property-basedargument in the trial court, expressly and specificallyrelying on both Jones and Jardines. Thereafter,Petitioner forcefully made the same argument to theVirginia Court of Appeals, to the Supreme Court ofVirginia, and now to this Court. As amici detailed, thetrial court misunderstood Jones and Jardines, theCourt of Appeals casually dismissed those cases asirrelevant, and the Supreme Court of Virginia ignoredthem completely.6 See Amicus Br. of USJF, et al. inSupport of Pet. for Cert. at 8-9.

5 “In those days there was no king in Israel: every man did thatwhich was right in his own eyes.” Judges 21:25.

6 The Virginia Supreme Court did cite Jardines in a footnote. SeeCollins at 623 n.4.

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Petitioner has now, again, raised a separate andindependent property-based argument to this Court. See Pet. at i, 10, 16-17; see also Pet. Br. at 13-14, 35-36. In its Brief in Opposition to the Petition forCertiorari, the Government attempted to rephrase thequestion presented to omit any reference to “privateproperty.” Brief in Opposition at i. Then, like theSupreme Court of Virginia below, the Government’sbrief did not even address the property issue, onlyciting Jones and Jardines once each in passingfootnotes, without any description or application ofthose decisions, or any analysis of their application tothis case.7

The lower courts and the Government have chosensimply to ignore Petitioner’s property-based FourthAmendment argument, perhaps not favoring the resultthat such a property-based analysis clearly wouldrequire, and instead hoping the foundational issue willsimply pass unnoticed. It is now this Court’sresponsibility to faithfully apply the property rights“baseline” established in Jones and Jardines to thefacts of this case, which requires a re-examination ofthe automobile exception.

Understanding this Court’s rationale for itsautomobile exception is like playing a game of Whack-

7 But as amici noted previously, “how can a court decide a FourthAmendment case about automobiles, and completely ignore Jones? And how can it decide such a case about the curtilage of a home,without even discussing Jardines?” Amicus Br. of USJF, et al. insupport of Pet. Cert. at 9.

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A-Mole.8 Whenever one justification is knocked down,another pops up to take its place. See Amicus Br. ofUSJF, et al. in Support of Pet. for Cert. at 18, et seq. After years of continual expansion and pervasiveapplication of the automobile exception, “[t]he word‘automobile’” today has become precisely what thisCourt promised it would not — “a talisman in whosepresence the Fourth Amendment fades away anddisappears.” Coolidge v. New Hampshire, 403 U.S.443, 461 (1971). This case is the most recent — andthe most strained — attempt to invoke the automobileexception to circumvent the most central protectionsoffered by the Fourth Amendment. As Petitioner putsit, “[e]ssentially, the [lower] court held that theautomobile exception trumps Fourth Amendmentprotections for the home and curtilage.” Pet. Br. at 1.

As these amici discussed at the petition stage, themost recent iterations of the automobile exceptionrevolve around the notion that a person has a reducedexpectation of privacy in a vehicle in a public place. See South Dakota v. Opperman, 428 U.S. 364 (1976). Although a person may have a reduced expectation ofprivacy in his car being driven on the public streets,Jones made clear that his property rights are the samewherever he or his car is located — the police may notsearch or seize it without a warrant simply because itis in a place accessed by the public. In that sense, theautomobile exception undermines the property rightsbaseline — as it was applied not just by the SupremeCourt of Virginia, but also across the board. The

8 https://www.youtube.com/watch?v=D0n8N98mpes.

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automobile exception should be declared not just“merely dead,” but “really, most sincerely dead.”9

B. The Automobile Exception Cannot BeApplied to Override Fourth AmendmentProtections.

The Supreme Court of Virginia below applied theautomobile exception to a vehicle located on privateproperty based on a theory of what this Court has notdone. The court below noted that this Court has“never limited” the automobile exception and its pastcases “‘did not distinguish’” between public and privatespaces. See Pet. Br. at 7-8. Of course, the fact that a10-year-old’s parents have not specifically prohibitedhim from borrowing his dad’s Harley would be a poorargument that it is permissible to do so.

Although it is true that this Court has said theautomobile exception permits the police to search avehicle without a warrant in some circumstances, itcertainly has never approved of an accompanyingtrespass onto and search of the curtilage of a house. See Pet. Br. at 9-10. Similarly, even if the police hadthe authority to search a vehicle parked in a public lot,that would not give them permission to frisk theowner’s person for his keys when he returns with hisgroceries. Nor would the automobile exception givethe police permission to rummage through his papersand effects hoping to find a keycode, if the vehiclewere parked, for example, behind a gated fence at an

9 See Wizard of Oz, https://www.youtube.com/watch?v=PHQLQ1Rc_Js.

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office building or storage unit. The Supreme Court ofVirginia’s theory seems to be that the automobileexception can be used to excuse the police fromobtaining a warrant before they violate anything oranyone that stands in the way of getting at the vehicleto be searched. Viewed in that way, the “automobileexception” is not a “narrow exception” to the warrantrequirement, but rather a death blow to the warrantrequirement whenever an automobile is in the vicinity.

Of course, a warrant is not simply about requiringa showing of probable cause. Rather, the police mustalso specify the place to be searched and the things tobe seized. The purpose of a warrant, then, is torestrict the Government from going beyond the scopeof that for which probable cause exists, such asoccurred in this case. By eliminating the warrantrequirement any time an automobile is involved, theSupreme Court of Virginia has removed an importantlimitation on police activity. Whereas applying for awarrant requires the Government to announce its legaland factual theory and establishes a priorcommitment, the absence of a warrant absolves theGovernment from being pinned down in any way and,if needed, permits the police to say whatever isrequired to justify their actions after they havefinished searching and seizing.

Moreover, the automobile exception has given lawenforcement officials a dangerous tool to employ thatjeopardizes other protections in the Bill of Rights,including Second Amendment rights. For example, inCady v. Dombrowski, 413 U.S. 433 (1973), the Courtwas confronted with the search of a heavily damaged

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automobile that had been towed to a service station. The vehicle was not inherently mobile and, indeed,was obviously immobile. Id. at 435-37. However, theCourt nevertheless assumed that there was still anexigency, since the police suspected the vehicle tocontain a firearm, and alleged a search was necessarysupposedly to “‘protect the public from the possibilitythat a revolver would fall into untrained or perhapsmalicious hands.’” Id. at 443. To justify the expansionof the automobile exception to apply to a situationwhere the automobile had no mobility, the Courtinvented a new justification — that automobiles andtheir drivers are heavily and pervasively regulated. Id. at 441. Writing for the majority, Justice Rehnquistadmitted “that this branch of the law is something lessthan a seamless web,” id. at 440, admitting that theCourt had now expanded the automobile exception tocases where none of the original justifications existed. Id. at 442-43.

C. Probable Cause that the Motorcycle WasContraband Does Not Obviate theWarrant Requirement.

The Government goes to great lengths to arguethat the police officers had probable cause to believethat the motorcycle at Collins’ house was stolen at thetime they entered Collins’ property to check the VIN. Br. in Op. at 2-4. The Government argues that thepolice, believing Collins’ motorcycle to be contraband,had the absolute right to search the motorcycle,“‘without more.’” See Maryland v. Dyson, 527 U.S.465, 467 (1999). Of course, if the police had probablecause to believe a carport contained a stolen weed

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whacker instead of a motorcycle, they would not bepermitted to trespass and rummage around for itwithout first obtaining a warrant. Indeed, even if anitem is contraband (as was Collins’ bike), and even ifit is in plain view (as Collins’ bike may have been), thepolice still have no right to enter private property tosearch or seize it. As this Court has held, “not onlymust the officer be lawfully located in a place fromwhich the object can be plainly seen, but he or shemust also have a lawful right of access to the objectitself.”10 Horton v. California, 496 U.S. 128, 137(1990). Indeed, the Court has held that “even wherethe object is contraband, this Court has repeatedlystated and enforced the basic rule that the police maynot enter and make a warrantless seizure.”11 Coolidgev. N.H., 403 U.S. 443, 468 (1971).

Accordingly, it does not really matter whether thepolice had probable cause to believe the motorcyclewas stolen (and thus was contraband), probable causeto believe it was the vehicle that had eluded them (andarguably an instrumentality), or both, as theGovernment argues. Br. in Opp. at 15. In eachsituation, it is not the illegal nature or use of a vehicle

10 As Petitioner makes clear in his brief, the police had no suchlawful right. Pet. Br. at 13-14 (discussion of Jardines).

11 The Government attempts to liken this case to New York v.Class, 475 U.S. 106 (1986) where this Court held that a VINnumber is “ordinarily in plain view” and thus subject to noreasonable expectation of privacy. Class at 114. Of course, eventhough the officer may lawfully read the VIN number, he still“must also have a lawful right of access to the object itself.” Horton at 137.

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which permits the police to search and seize on privateproperty — according to Horton and Coolidge — it isits vehicular nature. Indeed, it is the automobileexception itself that the Government argues permits itto dispense with the warrant requirement and enterthe curtilage of a home and rummage around within.

CONCLUSION

For the foregoing reasons, the decision of theVirginia Supreme Court should be reversed.

Respectfully submitted,

JOSEPH W. MILLER HERBERT W. TITUS*U.S. Justice Foundation ROBERT J. OLSON 932 D Street, Ste. 2 WILLIAM J. OLSONRamona, CA 92065 JEREMIAH L. MORGAN

Attorney for Amici Curiae WILLIAM J. OLSON, P.C.USJF and RLAC 370 Maple Ave. W., Ste. 4

Vienna, VA 22180-5615MICHAEL BOOS (703) 356-5070

Citizens United wjo@mindspring.com1006 Pennsylvania Ave SE Attorneys for Amici CuriaeWashington, DC 20003

Attorney for Amici CuriaeCitizens United and *Counsel of RecordCitizens United Fdn. November 20, 2017