Justices Gorsuch and Sotomayor Unlikely Allies in Police Search Cases

WASHINGTON (CN) – Supreme Court Justices Sonia Sotomayor and Neil Gorsuch formed an uncommon team on Tuesday when both questioned government attempts to undercut citizen protections against police searches.

Sotomayor, an Obama appointee, and Gorsuch, a Trump pick, appeared on the same side at oral arguments on Tuesday in two cases concerning law enforcement’s ability to search vehicles.

The first case raised the question of whether a man driving a car his fiancée rented had a reasonable expectation of privacy in the car, while the second probed the limits of a recognized exemption to warrant requirements when police seek to search vehicles.

Government lawyers argued in both cases that law enforcement should be free to search the vehicles, but Gorsuch and Sotomayor struggled with the limits of the lawyers’ claims.

“So, if there is no real distinction, as Justice Gorsuch suggested, you’re asking us to expand the automobile exception dramatically and to basically make an all-time exception forever?” Sotomayor asked during Tuesday’s second hearing.

The first case of the day revolved around Terrence Byrd, who entered a conditional guilty plea after a police traffic stop revealed heroin and body armor in the trunk of a car rented from Budget. Although Byrd was driving the car, his fiancée had signed the rental agreement and he was not an authorized driver on it.

Byrd lost his challenge to the search when the Third Circuit found the officers had a good reason to perform the traffic stop and search the car and that Byrd did not have full protection against searches because he was not authorized to drive the car.

Robert Loeb, who argued for Byrd, said it would be unusual for the court to decide a rental agreement could determine a man’s constitutional rights, and that because Byrd’s fiancée allowed him to use the car, he enjoyed an expectation of privacy.

“Our rule is that if you are given permission by the renter to store items, your personal items in the trunk, you have a reasonable expectation of privacy in it,” Loeb said.

Some of the justices struggled with where Loeb’s argument would end. Justice Samuel Alito posed a hypothetical in which a family gave the keys to their home to their cat sitter with the instructions that he could not let anyone else in the house. If the sitter then let a friend sell drugs out of the house, Alito wondered whether that friend would have a reasonable expectation of privacy.

Loeb said exceptions exist for people whose “mere presence is criminal,” but Alito found it difficult to see the distinction between the hypothetical drug dealer and Byrd.

“What is the difference between the kid who’s selling drugs from the house and Mr. Byrd who’s using the car to transport drugs?” Alito asked.

But Assistant to the Solicitor General Eric Feigin had similar trouble convincing the justices that the government had a right to search the car. He argued Byrd did not have privacy expectations because he was simply an “interloper” in the agreement between the rental company and his fiancée.

“As I was saying to Justice Alito, the Fourth Amendment rights are personal, and here petitioner, like other unauthorized drivers, simply has no connection to the car at all,” Feigin said. “He is a stranger to the relationship between Budget and Reed.”

Gorsuch jumped on this point, saying Byrd should have a right to keep the government out of the car just as he would be able to block private citizens from entering it.

“So someone in [this] position would have a right, I think you’d agree, to exclude someone who’s attempting to get in the car to hijack it, car-jack it,” Gorsuch said. “You’d also have a right to throw out a hitchhiker who had overstayed his welcome. And so I think you’re having to argue that the government has a special license that doesn’t exist for any other stranger to the car.”

Gorsuch and Sotomayor were similarly tough on the state’s position in the second case of the day, which featured an orange-and-black motorcycle that became infamous to two Albemarle County, Virginia, police officers who lost the bike in separate high-speed chases.

The officers ran the plates on the motorcycle, discovered it had been stolen and eventually tracked the distinctive bike over social media to a house in Charlottesville, Virginia. The officers went to the house, and from the street saw something that looked like a motorcycle covered with a tarp and parked on a concrete pad at the end of the driveway.

They walked up the driveway and uncovered the motorcycle, which was in fact the bike that had eluded them. They eventually arrested Ryan Collins, who was later convicted of possessing stolen property.

Collins tried to suppress the search before the trial court, arguing the officers’ search of his property was unlawful. When he lost the case, a Virginia appeals court agreed with the trial court, and the Virginia Supreme Court also affirmed. All three courts reasoned the vehicle exemption to the Fourth Amendment allowed the officers to search the motorcycle without a warrant.

Because vehicles are mobile and officers have limited time to track them down, law enforcement does not have to follow the same warrant requirements to search them, the exception says.

Matthew Fitzgerald, an attorney for the Richmond firm McGuire Woods who argued for Collins, told the justices that officers have traditionally needed warrants to search the area directly around a house, known as the curtilage. He also argued the vehicle exemption should not apply because the motorcycle was parked so close to the home.

“Under the commonwealth’s 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,” Fitzgerald told the justices. “That rule cannot survive foundational Fourth Amendment principles. Searches of the home and curtilage without a warrant are presumptively unreasonable, as this court has often recognized.”

Virginia Acting Solicitor General Trevor Cox argued a vehicle parked in plain sight does not enjoy the same protections as a car parked somewhere like a garage.

Cox’s arguments did not seem to convince Gorsuch, Sotomayor or the liberal-leaning justices. Gorsuch questioned whether the government could simply use the logic of the vehicle exemption to justify searching a house for papers if the house has a fireplace in which a suspect could easily burn evidence.

Sotomayor similarly suggested the government could push the exemption to places that would undermine previous understandings of the Fourth Amendment.

“Well that goes back to my basic question, which is how do I differentiate the car in the garage or the car through a window that you can see?” Sotomayor asked. “You would say that exigent circumstance, that’s what [the] Virginia court appeared to say, that it created an absolute rule. The police can break into anything, go anywhere they see a car, whether they [are] at that place legitimately or not.”

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