Supreme Court: Get a Warrant Before You Invade Somebody’s Curtilage

Why, it was just last month—no, wait, it was in 2012—that I last mentioned “curtilage,” after it was mentioned in John Elwood’s “Relist & Hold” column at SCOTUSblog. I considered mentioning it again in a post the next day, prompted by a reader email asking, “What the f*** is ‘curtilage’?” But then I realized I didn’t actually know what it was, and in the course of looking it up I suddenly got very sleepy and never finished that post.

I pulled up that draft again later, after noticing that the Ninth Circuit had mentioned “curtilage” in a then-recent decision, Sims v. Stanton. But it appears that, coincidentally, I suddenly got very sleepy and never finished that post.

Let’s try once more, now that the Supreme Court has mentioned it in Collins v. Virginia (SCOTUSblog, opinion) in which it held 8-1 that the cops need a warrant to enter your curtilage even if they are doing so to search a vehicle parked there.

Curtilage,” it turns out, is the area immediately surrounding a home, including any nearby gardens and structures and so forth. The answer to your follow-up question, who cares, is that in legal terms this is the area within which you may be considered to have a “reasonable expectation of privacy” for Fourth Amendment purposes. “Because the curtilage is part of the home,” as the Ninth Circuit has put it, “searches and seizures in the curtilage without a warrant are also presumptively unreasonable.”

As you may recall if you’re not a government official, the Fourth Amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ….” (Emphasis added.) On the other hand, it does not guarantee security to people out in an “open field,” as the Supreme Court told these bootleggers in 1924, and as it reminded these growers of “marihuana” 60 years later. (Oh, now you’re interested.) So what about the area between where your house stops and the “open fields” begin? What exactly is my “curtilage” and how do I know when somebody’s in it? Hey, good questions.

Which I would very likely become too sleepy to answer, so it’s a good thing that they weren’t really at issue in today’s opinion, which involved a motorcycle parked on a driveway. Applying sort of a know-it-when-you-see-it test, the Court had little trouble holding that a driveway, or at least this driveway, is within the “curtilage” of the home. The question was whether the officer needed a warrant to enter it given that he was doing so in order to search a vehicle—which can usually be done without a warrant.

For the facts of the case, I’m going to refer you to my previous writeup of Collins, in January, which I just now located. The delay was because I was searching for “curtilage,” a word that I didn’t mention in the earlier post because I was far more interested in the fact that Mahesha Subbaraman’s amicus brief had gotten the Chief Justice to mention Ferris Bueller during oral argument. The case itself was kind of a close call, I ultimately decided, but again, I was way more interested in the Ferris Bueller aspect, as you probably are, too.

But to summarize, the officers involved had twice previously chased, but did not catch, a guy on a black-and-orange motorcycle. After locating what they believed was the same motorcycle in images on Collins’s Facebook page, they paid him a visit. There in the driveway, visible from the street but within the curtilage, was a motorcycle. But it was covered by a tarp! What to do? What they did is enter the property, without getting a warrant, to lift said tarp, run the plates, confirm it was the same bike, replace said tarp, then go back outside curtilage to wait for suspect. The Virginia state courts said, fine, mainly because this was a vehicle and vehicles can be easily moved, justifying an exception to the warrant requirement. The Supreme Court reversed.

Writing for an 8-1 majority, Justice Sotomayor said that “the scope of the automobile exception extends no further than the automobile itself.” That is, it justifies a search of the automobile, not “any space outside an automobile” just because an automobile happens to be in it. On the particular facts here, I think, there are reasonable arguments both ways. But the Court was basically drawing a line here limiting the auto exception and enforcing the “curtilage” rule. That seems like the right answer to me, and six other justices (“other” than Sotomayor, I mean, not me) also agreed.

Who did not? Well, Justice Alito dissented, saying not only that this was an easy case but that the other justices all exhibited a “misunderstanding of Fourth Amendment basics.” (I would summarize his view as: Curtilage? Schmurtilage.) As the final move in this most recent charm offensive, Alito suggested that if the Court’s view is the law, then “the law is a ass.” See C. Dickens, Oliver Twist 277 (1867). That would be a better argument, I think, if he had gotten even one other justice on board with his view.

Wait, we’re missing one: Justice Thomas. He concurred, but only because he believed he was bound by existing precedent to do so. But Thomas being Thomas, he couldn’t just cast his vote accordingly. No, he drafted a pretty lengthy concurrence in order to present his view that the whole exclusionary rule should be thrown out. All should be as it was at the time of the Founders, Thomas generally believes, which is why he believes among other things that teachers can beat your children. (Not even kidding, unless he’s changed his mind about that recently.) The Founders didn’t exclude evidence, he says, so we shouldn’t, either.

I suppose it is at least mildly comforting that there’s still only one vote for that option.