Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded in Austin, Texas, after teaching advanced search and seizure to Texas DPS and some local agencies. The question comes up perpetually: you start a traffic stop, the driver pulls into their own driveway, and by the time you make contact you have probable cause there is evidence in the car.
Hey guys, it’s Anthony Bandiero, broadcasting from Texas. I’m actually in Austin at the DOT building, which is kind of like a palace around here. It’s a brand new building, but I’m here not teaching DOT, but teaching the Texas DPS and also some local agencies. We did advanced search and seizure. We did advanced traffic stops.
All right, so I want to answer a question. This is a question that comes up just perpetually. It’s about vehicles on curtilage.
The scenario is this. If we try to stop a vehicle, but it’s close to their house, they pull into their driveway and we effectuate our traffic stop. Again, we start that traffic stop before they pulled into the driveway. We make contact. We then have probable cause that they have evidence in the vehicle. At the end of the day, can we search their vehicle?
Does the motor vehicle exception apply on curtilage?
All right, well, let me try to give you an answer.
Number one is, generally speaking, the motor vehicle exception does not apply to curtilage. We know that from a case called Collins v. Virginia. In that case there was a stolen motorcycle on curtilage. The Supreme Court held that the seizure of that motorcycle was not lawful under the motor vehicle exception.
And the reason why it makes sense is that the motor vehicle exception does not have any exigency built into it. The motor vehicle exception is really based on a reduced expectation of privacy. But if a vehicle is on curtilage, then they actually do have an expectation of privacy, to keep uninvited visitors off of it.
Can consent get you into a car parked in the driveway?
Now, the second thing is consent. When a car pulls into a driveway, they make contact with you, they seem like they’re kind of cooperative, you have probable cause, hopefully they would be cool with you just seizing the evidence. Maybe it’s implied consent because they’re not saying anything. I think those are debatable cases, but at least you have something to work with.
But if the person is telling you, in no uncertain terms, hey, do not search my car, you’re not welcome here, well, you’re going to have to make a decision. Okay, what are you going to do?
How do you decide whether the driveway is curtilage?
Well, here’s my advice. First of all, are you on curtilage? Are you on an area that’s adjacent to the home? The use is for domestic life.
Driveways can definitely, obviously, where you park your car can certainly be part of domestic life and part of your home. That’s the Supreme Court case where the carport was.
Is there any sight screening? Is there any enclosure? That’s the first thing. Ask yourself, do I think that this part of the driveway, is it close enough to the home that it’s going to be part of the curtilage?
Okay. The next thing is, if it is, then I don’t think you should search it unless you have exigency. I just don’t see the authority. There is no court case out there that says if the vehicle is on curtilage you can search it with probable cause. If they said that, they would be disingenuous about Collins.
A lot of courts struggle with the curtilage piece. They’ll say, well, that piece of the driveway is not curtilage and so forth. But if they do say it’s curtilage, we’re going to have a problem.
What did the Illinois court say about agency policy?
So I would say a 2019 case out of Illinois is a good case. I’ll put it in the comments below.
This is where an officer towed a car. It’s not similar facts, but he towed a car from a person’s driveway because the policy said he had to, because the guy was a DUI suspect. And when he was asked why he did it, he says, well, my policy says to do it. And this is probably like the state law, and that’s how we just do business.
And the court said, well look, your policy is not the Constitution. You cannot basically take people’s cars from their curtilage unless you have exigency, a warrant, or their consent.
And that’s the right answer. It kind of goes back to what we have here. You just can’t search cars on curtilage just because you have PC. You’re going to need something more than that. There’s a few other cases out there, too.
What should you do if they refuse consent?
So at the end of the day, I can’t tell you to do it, because I don’t think you have the authority. I think you’re making bad case law if you do it.
You are going to have to slow it down and get a warrant if they don’t give you consent. It’s just the way it is. The world is kind of moving to more and more warrants.
The good news is that every day that goes by, warrants get easier to get. A lot more electronic. Cops in Utah, for example, get them in their car within 15 minutes.
So that’s my answer. I hope you appreciate where I’m coming from on this. I hope you understand what the law is.
The short version
- “Generally speaking, the motor vehicle exception does not apply to curtilage. We know that from a case called Collins v. Virginia.”
- Why it makes sense: “the motor vehicle exception does not have any exigency built into it,” and a car on curtilage regains an expectation of privacy.
- Cooperative driver, implied consent, no objection. “I think those are debatable cases, but at least you have something to work with.”
- Run the curtilage question first: proximity to the home, use for domestic life, sight screening, enclosure.
- “There is no court case out there that says if the vehicle is on curtilage you can search it with probable cause. If they said that, they would be disingenuous about Collins.”
- A 2019 Illinois decision on an officer towing from a driveway on department policy: “your policy is not the Constitution.”
- “You are going to have to slow it down and get a warrant if they don’t give you consent.”
- “Every day that goes by, warrants get easier to get.”
Related from Blue to Gold
- Towing a Fleeing Suspect’s Car From a Driveway
- Can a Recreational Vehicle (RV) Have Curtilage?
- Searching a Parked and Unoccupied Car in New Jersey With PC
This article is an edited transcript of Roadside Chat EP#827. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
