No. 16-1027
================================================================

In The

Supreme Court of the United States
---------------------------------i--------------------------------RYAN AUSTIN COLLINS,
Petitioner,
v.
COMMONWEALTH OF VIRGINIA,
Respondent.
---------------------------------i--------------------------------On Writ of Certiorari to the
Supreme Court of Virginia
---------------------------------i--------------------------------BRIEF OF AMICUS CURIAE
RESTORE THE FOURTH, INC.
IN SUPPORT OF PETITIONER
---------------------------------i--------------------------------MAHESHA P. SUBBARAMAN
Counsel of Record
SUBBARAMAN PLLC
222 S. 9th St., Ste. 1600
Minneapolis, MN 55402
(612) 315-9210
mps@subblaw.com
November 17, 2017
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 i
TABLE OF CONTENTS
Page
Table of Authorities .............................................

ii

Interest of the Amicus Curiae .............................

1

Summary of the Argument ..................................

2

Argument .............................................................

3

I.

II.

This case is not about the “automobile exception” to the Fourth Amendment ...........

3

A. The automobile exception legitimizes
warrantless searches of vehicles—not
warrantless searches for vehicles that
are stolen property or contraband.......

4

B. The common law of the founding era
required warrants for police searches
aimed at uncovering contraband or
stolen property in private places .........

7

The Court should not recognize a “garage
exception” to the Fourth Amendment ....... 12
A. A “garage exception” to the Fourth
Amendment would abrogate the timehonored common law protection of the
home against warrantless searches .... 13
B. A “garage exception” to the Fourth
Amendment would abrogate the reasonable expectation of privacy that
homeowners maintain in regard to
containers on their property ............... 19

Conclusion............................................................ 22

 ii
TABLE OF AUTHORITIES
Page
CASES
Agnello v. United States, 269 U.S. 20 (1925) ........ 15, 20
Arizona v. Hicks, 480 U.S. 321 (1987)...........................6
Arkansas v. Sanders, 442 U.S. 753 (1979) ....................6
Ashley v. Peterson, 25 Wis. 621, 1870 Wisc.
LEXIS 96 (1870) ......................................................12
Boyd v. United States, 116 U.S. 616 (1886) ............ 8, 18
Byrnside v. Burdett, 15 W. Va. 702 (1879) ..................12
California v. Acevedo, 500 U.S. 565 (1991) ......... passim
California v. Carney, 471 U.S. 386 (1985) ....................6
Camara v. Mun. Court, 387 U.S. 523 (1967) ..............21
Cardwell v. Lewis, 417 U.S. 583 (1974) .................... 5, 6
Carroll v. United States, 267 U.S. 132 (1925) .......... 2, 5
Collins v. Commonwealth, 790 S.E.2d 611 (Va.
2016) ................................................................ passim
CRST Van Expedited, Inc. v. EEOC, 136 S. Ct.
1642 (2016) ..............................................................10
Fairchild v. St. Paul, 49 N.W. 325 (Minn. 1891)...........4
Florida v. Jardines, 133 S. Ct. 1409 (2013)............ 4, 14
Georgia v. Brailsford, 3 U.S. 1 (1794) .........................18
Grumon v. Raymond, 1 Conn. 40 (1814) ......................9
Illinois v. Rodriguez, 497 U.S. 177 (1990) ..................14
Johnson v. United States, 333 U.S. 10 (1948).............10

 iii
TABLE OF AUTHORITIES – Continued
Page
Kelly v. Hochberg, 217 P.3d 699 (Or. Ct. App.
2009) ........................................................................11
Kyllo v. United States, 533 U.S. 27 (2001) ............ 14, 21
Luis v. United States, 136 S. Ct. 1083 (2016) .............15
Maryland v. Dyson, 527 U.S. 465 (1999) ....................16
Miller v. United States, 357 U.S. 301 (1958) ..............18
New York v. Class, 475 U.S. 106 (1986) ........................6
Payton v. New York, 445 U.S. 573 (1980) ....................14
Pennsylvania v. Labron, 518 U.S. 938 (1996) ...............6
People v. Case, 190 N.W. 289 (Mich. 1922) ..... 7, 8, 9, 11
Riley v. California, 134 S. Ct. 2473 (2014) .................18
Silverthorne Lumber Co. v. United States, 251
U.S. 385 (1920) .................................................... 3, 18
State v. Ochoa, 792 N.W.2d 260 (Iowa 2010) ..............14
Temperani v. United States, 299 F. 365 (9th Cir.
1924) .................................................................. 14, 15
United States v. Ackerman, 831 F.3d 1292 (10th
Cir. 2016) .................................................................10
United States v. Ross, 456 U.S. 798 (1982) ... 6, 13, 19, 21
Virginia v. Moore, 553 U.S. 164 (2008) .........................7
Weeks v. United States, 232 U.S. 383 (1914) ..............22
Wyoming v. Houghton, 526 U.S. 295 (1999) ......... 20, 22

 iv
TABLE OF AUTHORITIES – Continued
Page
CONSTITUTIONAL PROVISION
U.S. Const. amend. IV ......................................... passim
OTHER AUTHORITIES
1 JOSEPH CHITTY, A PRACTICAL TREATISE ON THE
CRIMINAL LAW (1841) .................................................9
5 RICHARD BURN & JOSEPH CHITTY, THE JUSTICE
OF THE PEACE & PARISH OFFICER (1831)..................12
AJ LaTrace, The Famous Ferrari House from
‘Ferris Bueller’ Has Finally Sold, CURBED CHICAGO, May 30, 2014, http://bit.ly/2zWKBLm ..........17
Alex Harris, Full Garage? No Problem! Couple
Stores Car Inside the House During Hurricane
Matthew, MIAMI HERALD, Oct. 7, 2016, http://
hrld.us/2dSKjLO .....................................................16
David Z. Morris, Today’s Cars Are Parked 95% of
the Time, FORTUNE, Mar. 13, 2016, http://for.tn/
1ppncsK ...................................................................18
Dennis Rodkin, Here’s Why That Ferris Bueller
House Is So Hard to Sell, CHICAGO MAG., Aug.
7, 2013, Aug. 7, 2013, https://goo.gl/cpNxiW ..........16
FERRIS BUELLER’S DAY OFF (Paramount Pictures
1986) ........................................................................16
Florida Man Parks BMW Vehicle in His Living
Room to Protect It from Hurricane, FOX 5
NEWS-D.C., Oct. 10, 2016, http://bit.ly/2AJDXoW........16

 v
TABLE OF AUTHORITIES – Continued
Page
Matt Schmitz, How Many Cars Does the Average
American Own, CARS.COM, Mar. 15, 2017, http://
bit.ly/2ms7ZVE........................................................18
Vanessa Rownaghi, Driving Into Unreasonableness: The Driveway, the Curtilage, & Reasonable Expectations of Privacy, 11 AM. U. J.
GENDER, SOCIAL POLICY & LAW 1165 (2003) .............5

 1
INTEREST OF THE AMICUS CURIAE1
Restore the Fourth, Inc. (“Restore the Fourth”) is a
national, non-partisan civil liberties organization dedicated to the robust enforcement of the Fourth Amendment to the U.S. Constitution. Restore the Fourth
believes that everyone is entitled to privacy in their
persons, homes, papers, and effects and that modern
changes to technology, governance, and law should foster—not hinder—the protection of this right.
To advance these principles, Restore the Fourth
oversees a network of local chapters, whose members
include lawyers, academics, advocates, and ordinary
citizens. Each chapter devises a variety of grassroots
activities designed to bolster political recognition of
Fourth Amendment rights. On the national level, Restore the Fourth also files amicus curiae briefs in significant Fourth Amendment cases.2
---------------------------------i---------------------------------

1

This amicus curiae brief is filed with the written consent of
all parties in this case. No counsel for a party authored this brief
in whole or in part; nor did any person or entity, other than Restore the Fourth, Inc. and its counsel, contribute money intended
to fund the preparation or submission of this brief.
2
See, e.g., Brief of Amicus Curiae Restore the Fourth, Inc. in
Support of Petitioners, Hernandez v. Mesa, No. 15-118 (U.S. filed
Dec. 9, 2016); Brief of Amicus Curiae Restore the Fourth, Inc. in
Support of Plaintiff-Appellee Araceli Rodriguez, Rodriguez v.
Swartz, No. 15-16410 (9th Cir. filed May 7, 2016); Brief of Amicus
Curiae Restore the Fourth, Inc. in Support of DefendantAppellant Stavros M. Ganias, United States v. Ganias, No. 12-240cr (2d Cir. filed July 29, 2015) (en banc).

 2
SUMMARY OF THE ARGUMENT
The Court granted review in this case to decide if
“the Fourth Amendment’s automobile exception permits a police officer, uninvited and without a warrant,
to enter private property, approach a house and search
a vehicle parked a few feet from the house.” Cert. Pet.
i. Unfortunately, this case has nothing to do with the
automobile exception. The automobile exception legitimizes the “warrantless search of an automobile”—it establishes that after stopping a car, the police may with
probable cause (but without a warrant) tear up the upholstery, for example, or open up a suitcase that is
stored in the trunk. California v. Acevedo, 500 U.S. 565,
579 (1991) (emphasis added); see also Carroll v. United
States, 267 U.S. 132, 153 (1925).
What happened in this case, however, was a warrantless search for an automobile. In particular, the police decided to search for a stolen motorcycle under a
tarp within the curtilage of a home even though the
police did not have a search warrant for the home or
for the tarp. To bless this search under the Fourth
Amendment, the Court would have to create a new exception to the Fourth Amendment: the garage exception. This new exception would establish that the
police may conduct warrantless searches for a stolen
or contraband vehicle anywhere the police have probable cause to believe the vehicle is located or garaged.
The Court should refuse to create a garage exception to the Fourth Amendment. As this case shows, a
garage exception would abrogate the time-honored

 3
common law protection of homes against warrantless
searches—a protection that applies with full force even
when police officers otherwise have probable cause to
search a home. A garage exception would also abrogate
the reasonable expectation of privacy that homeowners maintain in regard to containers on their property.
A garage exception would thus “reduce[ ] the Fourth
Amendment to a form of words.” Silverthorne Lumber
Co. v. United States, 251 U.S. 385, 392 (1920).
---------------------------------i---------------------------------

ARGUMENT
I.

This case is not about the “automobile exception” to the Fourth Amendment.

Officer David Rhodes wanted to find a stolen orange-and-black Suzuki motorcycle that had been used
to elude the police in two traffic incidents. See Collins
v. Commonwealth, 790 S.E.2d 611, 612–14 (Va. 2016).
Officer Rhodes’ investigation led him to the home of
Ryan Austin Collins (Petitioner), where Rhodes could
see from the street “what appeared to be a motorcycle
covered with a white tarp” parked in Collins’ driveway.
Id. Officer Rhodes then “walked onto the property” without first obtaining a warrant and “[w]hile standing on
the driveway . . . uncovered the motorcycle.” Id. Officer
Rhodes concluded that the motorcycle “appeared to be
the same orange and black Suzuki” that he was looking
for. Id.

 4
A. The automobile exception legitimizes
warrantless searches of vehicles—not
warrantless searches for vehicles that
are stolen property or contraband.
Based on the above facts, the Virginia Supreme
Court concluded that what occurred in this case was,
in essence, a search of a vehicle for a vehicle. See id.
at 617 (“[W]e hold that Officer Rhodes’ warrantless
search of the motorcycle was justified . . . .”). If this
analysis is correct, then the Fourth Amendment’s automobile exception would come into play. Under this
exception, the police may conduct a warrantless search
of a vehicle so long as the search is supported by facts
that otherwise establish probable cause for the search.
See California v. Acevedo, 500 U.S. 565 (1991).
To explain the automobile exception, however, is to
lay bare the problem with applying it in this case: one
cannot search a motorcycle to find a motorcycle. This
is “reasoning in a circle”—one has already found what
one is looking for. Fairchild v. St. Paul, 49 N.W. 325, 326
(Minn. 1891). The dissent below recognized this: “Officer Rhodes did not search an automobile, he searched
a tarp.” Collins, 790 S.E.2d at 621 (Mims, J., dissenting). Or, to be more precise, Officer Rhodes searched a
tarp located within the curtilage3 of Collins’ home in
3

“Curtilage” describes the area “immediately surrounding
and associated with the home,” making it “part of the home itself
for Fourth Amendment purposes.” Florida v. Jardines, 133 S. Ct.
1409, 1414–15 (2013) (quotation marks omitted). The Virginia Supreme Court did not express any doubt that Collins’ driveway was
part of the “curtilage” of his home. Rightly so. “Because the driveway is frequently (if not always) used for domestic purposes and

 5
order to find a stolen motorcycle. See id. at 614 (majority op.).
That removes this case from the realm of the automobile exception. In Carroll v. United States, 267
U.S. 132, 147–53 (1925), the Court announced this
exception. The Court explained that there was “a necessary difference” under the Fourth Amendment between “a search of a store, dwelling house or other
structure” and “a search of a ship, motor boat, wagon
or automobile, for contraband goods.” Id. at 153. Because a “vehicle can be quickly moved out of the locality,” the Court held that “contraband goods concealed
and illegally transported in an automobile or other vehicle may be searched for without a warrant.” Id.
On every major occasion the Court has spoken
about the automobile exception since Carroll, the Court
has stuck to the above view of the exception. The Court
has defined the exception’s scope in terms of a warrantless search of a vehicle—i.e., a search for something, usually contraband, located inside a vehicle.4 In
commonly functions as an access route to the home, a per se rule
acknowledging it as part of the home’s protected curtilage is entirely appropriate.” Vanessa Rownaghi, Driving Into Unreasonableness: The Driveway, the Curtilage, & Reasonable Expectations
of Privacy, 11 AM. U. J. GENDER, SOCIAL POLICY & LAW 1165, 1192
(2003).
4
In Cardwell v. Lewis, the Court upheld the “warrantless examination of the exterior of a car”—namely, “examination of [a]
tire on [a] wheel and the taking of paint scrapings from the exterior of [a] vehicle left in [a] public parking lot.” 417 U.S. 583, 591–
92 (1974). The Court based this conclusion primarily on the fact
that a car “travels public thoroughfares where both its occupants and
its contents are in plain view.” Id. at 590. The Court thus implicitly

 6
this regard, the Court has determined that the exception covers the interior of a vehicle, enclosed or obscured parts of a vehicle (e.g., trunks and glove
compartments), and containers stored in a vehicle. See,
e.g., Maryland v. Dyson, 527 U.S. 465, 467 (1999) (bags
in a car trunk); Pennsylvania v. Labron, 518 U.S. 938,
939–40 (1996) (car trunk and truck floor); Acevedo, 500
U.S. at 567, 580–81 (bags in a car trunk); New York v.
Class, 475 U.S. 106, 112–14 (1986) (obscured dashboard vehicle identification number); California v. Carney, 471 U.S. 386, 388, 394 (1985) (interior of a mobile
home); United States v. Ross, 456 U.S. 798, 801, 825
(1982) (bags in a car trunk); Arkansas v. Sanders, 442
U.S. 753, 755, 766 (1979) (suitcase in a car trunk).
The present case, by contrast, concerns a police
search for—not of—a vehicle in a home driveway.5 And
that distinction is of vital importance because in “determining whether a search or seizure is unreasonable,

acknowledged that the automobile exception—as opposed to the
plain-view exception—is focused on searches of “the interior of [a]
car.” Id. at 591.
5
After uncovering the motorcycle parked on Collins’ driveway, Officer Rhodes did perform a search of the vehicle to the extent that he looked for the motorcycle’s vehicle identification
number. See Collins, 790 S.E.2d at 614. But that VIN search cannot be conflated with Officer Rhodes’ initial entry onto the curtilage or uncovering of the motorcycle. Cf. Arizona v. Hicks, 480 U.S.
321, 324–25 (1987) (officer’s movement of a record player was a
search apart from the officer’s initial entry into an apartment). It
is those earlier searches that are at issue here in terms of whether
they also fit under the automobile exception.

 7
we begin with history. We look to the statutes and common law of the founding era to determine the norms
that the Fourth Amendment was meant to preserve.”
Virginia v. Moore, 553 U.S. 164, 169 (2008). This approach ensures that the Fourth Amendment continues
to “afford[ ] the protection that the common law [of the
founding era] afforded.” Acevedo, 500 U.S. at 583–84
(Scalia, J., concurring). “[T]hat includes the requirement of a warrant, where the common law would have
required a warrant.” Id.
B. The common law of the founding era required warrants for police searches
aimed at uncovering contraband or stolen property in private places.
The history and common law of the founding era
reveal that a special warrant was required to authorize
searches for contraband or stolen property in private
places. This is best seen in James Otis’s argument on
behalf of a group of colonial merchants against Crown
officers seeking to broaden their customs inspection
power in America. See People v. Case, 190 N.W. 289,
300–01 (Mich. 1922) (Wiest, J., dissenting) (detailing
Otis’s speech). Otis explained in his argument that “[i]t
had been a common practice, till of late years, for the
[Crown] officers of the customs, with no authority but
that derived from their commissions, to enter warehouses, and even dwelling-houses, and search them for
contraband goods.” Id.

 8
Otis continued: “The people being naturally indignant, that the sanctity of their homes should be violated, and for such a purpose . . . the custom was
gradually limited, till only special warrants were issued for searching particular places, in which there
was reason to believe that smuggled goods were concealed . . . .” Id. But the “revenue officers were not satisfied with the[se] limited powers”—they wanted
general authority to “break open and ransack any
houses that [they] saw fit.” Id. And once this general
authority was given to them, they quickly became “inquisitor-general[s] for the whole province, opening the
dwelling-place and exposing the property of every inhabitant to [their] perquisition.” Id.
Otis’s argument changed the nation. John Adams
remarked that “American Independence was then and
there born.” Id. The same may be said of the Fourth
Amendment, which bars “unreasonable searches” by
requiring search warrants to be issued based “upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.” The Amendment
thus codifies the “special warrants” that Otis described
as the product of founding era outrage against warrantless searches of private places like homes for contraband. The Framers recognized that without the limits
set by the Fourth Amendment on police searches, “the
liberty of every man” would rest “in the hands of every
petty officer.” Boyd v. United States, 116 U.S. 616, 625
(1886).

 9
The same history attends government searches for
stolen property. It was “not at common law legal” during the founding era for government officers to be able
“to search all suspected places for stolen goods . . . because it would be extremely dangerous to leave it to
the discretion of a common officer to . . . search what
houses he thinks fit.” 1 JOSEPH CHITTY, A PRACTICAL
TREATISE ON THE CRIMINAL LAW 66 (1841). Officers
instead needed a particularized warrant and state
courts were vigilant in enforcing this rule. In Grumon
v. Raymond, for example, Connecticut’s high court
condemned a warrant that authorized the police to
“[s]earch every house, store or barn within the town of
Wilton that is suspected of having certain bags concealed in it, said to be stolen.” 1 Conn. 40, 43 (1814).
The court observed that “this warrant was such as no
justice ought to have issued.” Id.
In light of this history, the common law of the
founding era would have required a warrant for the
searches at issue in this case. Cf. Acevedo, 500 U.S. at
583 (Scalia, J., concurring). Officer Rhodes sought
without a warrant to uncover “contraband” or “stolen
property” in a private place—i.e., under a tarp within
the curtilage of a home. Collins, 790 S.E.2d at 617. This
is precisely the kind of police conduct that Americans
of the founding era most feared. Is it then “conceivable
that the [American] people . . . after so strenuously
fighting” warrantless searches of this kind “left a loophole” in the Fourth Amendment allowing them? Case,
190 N.W. at 301 (Wiest, J., dissenting).

 10
The question answers itself. “[W]e know the
Fourth Amendment is no less protective of persons and
property against governmental invasions than the
common law was at the time of the founding.” United
States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir.
2016) (Gorsuch, J.). Hence, given that the common law
of the founding era would have required a warrant in
this case and Officer Rhodes did not have one, the
Fourth Amendment invalidates Officer Rhodes’ conduct unless: (1) the record reveals some other common
law basis for excusing the warrant requirement; or (2)
the Court is prepared to recognize a brand new exception to the Fourth Amendment.6
The first circumstance does not apply here. The
decision below advances two main rationales for upholding Officer Rhodes’ warrantless conduct: probable
cause and the need to secure a vehicle (i.e., readily
movable property). See Collins, 790 S.E.2d at 617–18.
But neither of these rationales would have served during the founding era to excuse the common-law warrant requirement for a contraband or stolen-property
search of a private place, especially a home.
Writing for the Court in Johnson v. United States,
Justice Jackson makes it clear why the probablecause rationale is unavailing: “Any assumption that
6
While other established Fourth Amendment exceptions
(e.g., exigency) might in theory apply to Officer Rhodes’ conduct,
no basis exists for the Court to consider these exceptions because
either they were not raised or they were not decided below.
Cf. CRST Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642, 1654
(2016) (“[T]his is a court of final review and not first view.”).

 11
evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify officers in making a search without a warrant
would reduce the [Fourth] Amendment to a nullity and
leave the people’s homes secure only in the discretion
of police officers.” 333 U.S. 10, 14 (1948).
This leaves the vehicle-movability rationale,
which does not vitiate the common-law warrant requirement for two reasons. First, this rationale “makes
the thing sought for seizure the controlling idea”—i.e.,
the vehicle—when the common law of the founding era
protected private places like homes against warrantless searches regardless of the thing sought for seizure,
including contraband and stolen property. Case, 190
N.W. at 296 (Wiest, J., dissenting). Second, there is
nothing to indicate that the common law of the founding era would have allowed warrantless searches of
private homes or barns for stolen horses—a conveyance that raises the exact same kind of vehicle-movability concerns that automobiles and motorcycles do
today.7
In fact, the common law of the founding era and
later generations contemplated the opposite: that
searches for stolen horses in private places required a
warrant. As one legal treatise of the era explained, in

7
This analogy is especially apt given that motorcycles are
often described in the vernacular as “iron horses.” See, e.g., Kelly
v. Hochberg, 217 P.3d 699, 700 (Or. Ct. App. 2009) (“Plaintiff participated in an annual gathering of motorcycle riders from the
west coast, known as the Iron Horse Rodeo.”).

 12
the case of a person who suspected “his horse [to be]
concealed in the stable of another person,” a search
warrant was properly issuable based on the person’s
ability to “conscientiously swear [that] he suspects [the
horse] to have been stolen.” 5 RICHARD BURN & JOSEPH
CHITTY, THE JUSTICE OF THE PEACE & PARISH OFFICER
355 (1831); see also, e.g., Byrnside v. Burdett, 15 W. Va.
702, 715–16 (1879) (holding that a search warrant for
a stable and stolen horse was void for lack of a proper
oath); Ashley v. Peterson, 25 Wis. 621, 624, 1870 Wisc.
LEXIS 96, at *1–2, 4–5 (1870) (holding that a search
warrant for two stolen horses was void insofar as the
warrant effectively authorized the sheriff to “search
the premises of anybody in the town of Baraboo”).
II.

The Court should not recognize a “garage
exception” to the Fourth Amendment.

Since the common law of the founding era offers
no support for a warrantless police search of a home
(including its curtilage) for a stolen conveyance, the
only other way that Officer Rhodes’ conduct may be upheld in this case is if the Court recognizes a new exception to the Fourth Amendment: the garage exception.
This exception would establish that because of the inherent mobility of vehicles, the police may conduct
warrantless searches for a stolen or contraband vehicle
anywhere the police have probable cause to believe the
vehicle is located or garaged. This exception would be

 13
a bright-line rule, requiring no exigency and respecting
no distinction between public and private places.8
The Court should not go down this path. The “basic
rule of Fourth Amendment jurisprudence” is that
“searches conducted outside the judicial process . . . are
per se unreasonable.” Ross, 456 U.S. at 825. The Court
has recognized “a few specifically established and welldelineated exceptions” to this rule—but only a few. Id.
It does not behoove the Court to grow this list, especially when a purported exception has no basis in the
common law of the founding era. As shown above, recognizing a “garage exception” to the Fourth Amendment would be at direct odds with the founding era’s
commitment to limiting warrantless searches of private places. But that is not the worst of it.
A. A “garage exception” to the Fourth
Amendment would abrogate the timehonored common law protection of the
home against warrantless searches.
Time and again, this Court has emphasized the
special status of the home under Fourth Amendment.
“[W]hen it comes to the Fourth Amendment, the home
is first among equals. At the Amendment’s very core
stands the right of a man to retreat into his own home
and there be free from unreasonable governmental

8
All of this is visible in the decision below, which tracks
all the elements of the “garage exception” in affirming Officer
Rhodes’ conduct. See Collins, 790 S.E.2d at 617–20.

 14
intrusion.” Florida v. Jardines, 133 S. Ct. 1409, 1414
(2013) (quotation marks omitted). The Fourth Amendment accordingly draws “a firm line at the entrance to
the house”—including its curtilage—and this Court
has staked out a proactive role in ensuring that this
line is not crossed. Payton v. New York, 445 U.S. 573,
590 (1980); see Kyllo v. United States, 533 U.S. 27, 35–
36 (2001) (refusing to “leave the homeowner at the
mercy of advancing technology” that stood to diminish
the Fourth Amendment’s protection of the home).
The special place that the home occupies under
the Fourth Amendment is no accident. It traces back to
the frequent warrantless invasions of the home by
Crown agents during the founding era. These invasions were so disturbing that one British jurist was
compelled to declare that “to enter a man’s house by
virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition.” State v.
Ochoa, 792 N.W.2d 260, 270 (Iowa 2010) (quoting Chief
Judge Pratt). Based on this history, this Court has recognized that the “Fourth Amendment generally prohibits the warrantless entry of a person’s home,
whether to make an arrest or to search for specific objects.” Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).
A person’s home, in turn, consists of “not only the
main house, but all of the cluster of buildings convenient for the occupants of the premises.” Temperani v.
United States, 299 F. 365, 366–67 (9th Cir. 1924).
“Within this definition the garage comes clearly within
the protection of the Constitution.” Id. at 367. In Temperani v. United States, the Ninth Circuit enforced this

 15
protection, rebuking police officers who “entered the
garage” of a suspect without a warrant “to make a
search of the premises.” Id. The court explained that
“the violation of rights guaranteed by the Constitution
cannot be tolerated or condoned. If present laws
are deficient in not permitting [a] search in a constitutional way . . . the remedy is with Congress, not in
subterfuge or evasion.” Id.; see Agnello v. United States,
269 U.S. 20, 33 (1925) (endorsing Temperani).
The constitutional protection of a garage as part
of the home is relevant here because of the tarp that
Officer Rhodes had to remove to uncover the stolen motorcycle that he was looking for. See Collins, 790 S.E.2d
at 614. The tarp may be readily analogized to a garage
for the motorcycle, covering and storing the vehicle in
the same way that a full-fledged home garage would.
And once the tarp is viewed in this light, it becomes
apparent that affirming Officer Rhodes’ warrantless
conduct here “would unleash a principle of constitutional law that would have no obvious stopping place.”
Luis v. United States, 136 S. Ct. 1083, 1094 (2016).
This is because there is no material difference between the warrantless removal of a tarp on a home
driveway to pursue a probable-cause search for a stolen vehicle and any of the following acts:
x

Warrantless opening of a shed to search for a
stolen vehicle that can be seen from a distance
through a gap in the shed doors;

 16
x

Warrantless lifting of closed garage door to
search for a stolen vehicle that is visible from
the street through a garage window;

x

Warrantless entry into a house to search for a
stolen vehicle that a porch window reveals to
be parked in the living room.9

A popular film affords a vivid way to appreciate
this point. In Ferris Bueller’s Day Off, protagonists Ferris Bueller and Cameron Frye decide to go for a joyride
in a 1961 Ferrari 250 GT California owned by Frye’s
father.10 The Ferrari is parked in the Fryes’ home garage: a spacious room surrounded by large glass windows overlooking a ravine.11 Bueller and Frye succeed
in taking the Ferrari, but in the course of returning it,
Frye accidentally causes the car to crash through one
of the garage’s glass windows and fall into the ravine
below. Assuming a movie in which this accident had
never happened—and one in which the police were engaged in an active investigation of a stolen Ferrari—
would the police have been free to enter the Fryes’
glass garage without a warrant so long as they had
9

The idea of a vehicle being parked in someone’s living room
is not as far-fetched as it might sound. See, e.g., Florida Man Parks
BMW Vehicle in His Living Room to Protect It from Hurricane,
FOX 5 NEWS-D.C., Oct. 10, 2016, http://bit.ly/2AJDXoW; Alex Harris, Full Garage? No Problem! Couple Stores Car Inside the House
During Hurricane Matthew, MIAMI HERALD, Oct. 7, 2016, http://
hrld.us/2dSKjLO.
10
FERRIS BUELLER’S DAY OFF (Paramount Pictures 1986).
11
See Dennis Rodkin, Here’s Why That Ferris Bueller House
Is So Hard to Sell, CHICAGO MAG., Aug. 7, 2013, https://goo.gl/
cpNxiW (“The 1974 pavilion . . . . has a kitchen and a bedroom,
but it’s mostly a four-car show garage.”).

 17
probable cause to believe the Ferrari was located
there?

Color photograph of the glass garage and
Ferrari depicted in Ferris Bueller’s Day Off.12
If the Court recognizes a “garage exception” to the
Fourth Amendment, the answer must be ‘yes’: the police may conduct a warrantless search of any place
they have probable cause to believe a stolen vehicle is
located. This would then legitimize Officer Rhodes’
warrantless search of the tarp in this case. It would
also open the home of every American to warrantless
police searches on a scale not countenanced since the
founding era. The vast majority of Americans own at

12

See AJ LaTrace, The Famous Ferrari House from ‘Ferris
Bueller’ Has Finally Sold, CURBED CHICAGO, May 30, 2014, http://
bit.ly/2zWKBLm (photo by Coldwell Banker Residential).

 18
least one car13 and “on average, cars are parked 95% of
the time.”14 If the mere presence of a vehicle on a home
driveway—or in a home garage—coupled with probable cause is all the police need to enter a home and
its curtilage, then the Fourth Amendment is “reduce[d]
. . . to a form of words.” Silverthorne Lumber Co. v.
United States, 251 U.S. 385, 392 (1920); cf. Riley v. California, 134 S. Ct. 2473, 2484, 2494–95 (2014) (recognizing the danger of warrantless cellphone searches
given the modern ubiquity of cellphones).
The fact that Officer Rhodes’ conduct in this case
was directed at a tarp rather than a full-fledged garage
makes no difference. The Fourth Amendment stands
for the proposition that the “poorest man may, in his
cottage, bid defiance to all the forces of the Crown.”
Miller v. United States, 357 U.S. 301, 307 (1958). This
means the police cannot get a free pass for a tarp,
which may be the only kind of garage that the poorest
man can afford. See Boyd, 116 U.S. at 616 (“It is the
duty of courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments thereon.”); Georgia v. Brailsford, 3 U.S. 1,
4–5 (1794) (Jay, C.J.) (“Justice is indiscriminately due
to all, without regard to numbers, wealth, or rank.”).

13

See Matt Schmitz, How Many Cars Does the Average American Own, CARS.COM, Mar. 15, 2017, http://bit.ly/2ms7ZVE.
14
David Z. Morris, Today’s Cars Are Parked 95% of the Time,
FORTUNE, Mar. 13, 2016, http://for.tn/1ppncsK.

 19
B. A “garage exception” to the Fourth
Amendment would abrogate the reasonable expectation of privacy that homeowners maintain in regard to containers
on their property.
One way to look at a tarp covering a vehicle parked
on a home driveway is as a makeshift garage. Another
way is as a container. The latter perspective matters
because “the Fourth Amendment provides protection
to the owner of every container that conceals its contents from plain view.” Ross, 456 U.S. at 822–23. This
protection then provides independent confirmation
that: (1) upholding Officer Rhodes’ warrantless tarp
search here would require the Court to recognize a
new “garage exception” to the Fourth Amendment; and
(2) recognizing a “garage exception” would undermine
the Fourth Amendment’s protection of the home and
its containers on an equal basis.
All of this stems from how the Fourth Amendment
limits container searches. Fourth Amendment protection of any given container “varies in different settings.” Ross, 456 U.S. at 823. For example, bags “carried
by a traveler entering the country may be searched at
random by a customs officer.” Id. The same bags may
not be searched during a traffic stop, however, absent
probable cause. See Acevedo, 500 U.S. at 580 (“The police may search an automobile and the containers
within it where they have probable cause to believe
contraband or evidence is contained.”).

 20
Containers thus absorb the Fourth Amendment
status of their surroundings. When a container is located in a place where Fourth Amendment protection
is at its lowest, like at the border, the container takes
on this quality and may be searched without cause.
And when a container is located in a place that is already subject to search under the Fourth Amendment,
the container may be treated as an extension of the
place. For example, if “there is probable cause to search
. . . a car,” then the police may also search containers
in the car without needing to show “individualized
probable cause for each one.” Wyoming v. Houghton,
526 U.S. 295, 302 (1999).
What about a container located in a home—a place
where Fourth Amendment protection is at its peak? The
same principle applies. The container may be searched
only on terms equal to those of the place where the container is located. For the home, those terms are as follows: “Belief, however well founded, that an article
sought is concealed in a dwelling house furnishes no
justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.”
Agnello v. United States, 269 U.S. 20, 33 (1925); see id.
at 32 (“[I]t has always been assumed that one’s house
cannot lawfully be searched without a search warrant,
except as an incident to a lawful arrest therein.”).
No search of a container located in a home (or
within its curtilage) may therefore rest on probable

 21
cause alone—a warrant for the home or the container
is required. Cf. Ross, 456 U.S. at 821 (“[A] warrant that
authorizes an officer to search a home . . . also provides
authority to open closets, chests, drawers, and containers in which the [object sought] might be found.”). Officer
Rhodes’ warrantless tarp search must then fail under
the Fourth Amendment.15 Cf. Camara v. Mun. Court,
387 U.S. 523, 528–29 (1967) (“[E]xcept in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it
has been authorized by a valid search warrant.”).
The only way for the Court to reach the opposite
conclusion is by recognizing a new exception to the
Fourth Amendment that fits the contours of Officer
Rhodes’ conduct—i.e., the “garage exception.” This
would then result in a house divided under the Fourth
Amendment, with the containers of a home receiving
less constitutional protection than the home itself.
That is reason enough for the Court to reject the “garage exception.” There is “no exception to the warrant
requirement for the officer who barely cracks open the
front door and sees nothing but the nonintimate rug on
the vestibule floor.” Kyllo, 533 U.S. at 37. There is also
no exception to the warrant requirement for the officer

15
This Court’s precedents dispose of any suggestion that the
menial or inexpensive nature of a tarp weighs against affording
this container the same Fourth Amendment protection as other
containers that may be found within the home or its curtilage. See
Ross, 456 U.S. at 822 (highlighting the Court’s “virtually unanimous agreement” that “a constitutional distinction between ‘worthy’ and ‘unworthy’ containers would be improper”).

 22
who removes a tarp that contains a vehicle parked
within the curtilage of a home.
---------------------------------i---------------------------------

CONCLUSION
The Fourth Amendment establishes that a person’s home is their “castle” and it is “not to be invaded
by any general authority to search.” Weeks v. United
States, 232 U.S. 383, 390 (1914). That principle was violated here when Officer Rhodes conducted a warrantless search of a tarp within the curtilage of Petitioner’s
home. That Rhodes was searching for a stolen vehicle
does not excuse the violation. The “ready mobility” of a
stolen vehicle may, of course, “create[ ] a risk” that the
vehicle “will be permanently lost while a warrant is obtained.” Houghton, 526 U.S. at 304. But that risk cannot justify putting a hole in the Fourth Amendment big
enough to drive a Ferrari through—or, for that matter,
a stolen orange-and-black Suzuki motorcycle.
Respectfully submitted,
MAHESHA P. SUBBARAMAN
Counsel of Record
SUBBARAMAN PLLC
222 S. 9th St., Ste. 1600
Minneapolis, MN 55402
(612) 315-9210
mps@subblaw.com
Counsel for Amicus Curiae
Restore the Fourth, Inc.
Dated: November 17, 2017