Vehicle. That rule cannot survive foundational Fourth Amendment principles. Searches of the home in curtilage without a warrant are presumptively unreasonable as this court has often recognized. The rule we ask this court to adopt is that the automobile exception does not apply to a vehicle found in the curtilage of the home. Suppose the police have probable cause to believe that the vehicle is stolen, and they even get a warrant to inspect the vehicle, but the vehicle is parked in this port. Do they need a warrant to go get the car for which they have a warrant . Well, your honor, the warrant would specify the place to be searched for the car. And so commonly a warrant would say, for instance, the dwelling and curtilage to look for this motorcycle. So the warrant that authorizes the search of the motorcycle would, by its terms, authorize the intrusion into the curtilage. What if it didnt . So they have a warrant, here, lets say, to search for they have probable cause to search this thing covered by a tarp. They have a warrant to search this motorcycle because its been involved in criminal activity, they want to get the vehicle Identification Number from it. And they see it. Lets say its parked two feet from the curb, but arguably or its parked where it is here, maybe in the curtilage, maybe not in the curtilage, that warrant would be insufficient . Well, your honor, the Fourth Amendment, by its terms, requires the warrant to specify the place to be searched. So if theyve seen the motorcycle in that spot and they get a warrant, the warrant would say this house on dell mead avenue, may have included the picture and it would by its terms authorize the access to that. This is my question about your argument based on the curtilage. We ask whether a search within or outside the curtilage in order to determine whether the Fourth Amendment applies at all. But thats not really the question here. Because there is probable cause. And there is the Motor Vehicle exception to the warrant requirement. So the issue is not whether there was a search. Yes, there was a search. And yes, i note, if it was the curtilage, then there was an intrusion on the protected area. But the warrant the Motor Vehicle exception to the warrant requirement, i take it, is based on two things. One, is the risk that the vehicle is going to be moved during the time when the warrant is sought. And second, is a consideration on the other side of the risk that if theres not a warrant, the police will be wrong about probable cause and the degree of intrusion on property on legitimate property interests that occur in that situation. Its a balancing. Its not a consideration of whether its on the curtilage or not. And its hard to see why the balance is any different here than it would be if this motorcycle had been parked on the street. The risk that it will be moved seems to be almost exactly the same. And what is the additional invasion of privacy . The invasion of privacy thats involved in walking a few feet up a driveway and the home is not even mr. Birds home. Why does the balance come out different here . Well, your honor, so heres the way that i think about that. If youre looking at the terms that support the automobile exception, you have ready mobility and you have the lessened expectation of privacy. But the curtilage and the home are essentially more important concerns than that. So, for instance, if i had a fist full of cocaine and im out in public, the cocaine is extremely readily mobile. Theres nothing that is easier to dispose of than a fistful of cocaine. If ive got a sink, it can be gone in seconds. Its extremely readily mobile. Nor in the cocaine itself is there any expectation of privacy. Its illegal to possess it already. But if im standing in, say, my living room or my garage with a fistful of cocaine, the court would require a warrant for the police to come to that address and look for that and get me. Yeah, well, i think the privacy interests would be quite different if this was in the house or if it was in the garage. But this is not in either of those places. Its in a spot thats visible from the street. Right . Its visible from the street from directly at the end of the driveway, yes, your honor. It is obscured from any distance in either direction by the brick walls that surround where this motorcycle was on three sides, one side being the house. So the motorcycle here is five feet from the side of the house. And to the extent that curtilage is at issue, curtilage has been waived by the commonwealth by not arguing it below, and this is a clear case for curtilage given the distance from the house. How much does your argument depend on us viewing this as two things, one a trespass on private property, the curtilage, and then a search within that private space . Is your argument hinge on that distinction . Well, i think we make that distinction because its important just to make sense of the Fourth Amendment to think about it step by step. And there are two searches here. The first is the intrusion into the curtilage under jardeans which is clearly a search outside of my implied license, and the second is the removal of the cover from the motorcycle, which is similar to opening a container to find a vehicle inside, or perhaps opening the door to a car or removing a cover from a car. If this motorcycle were parked on a street and it was covered by a tarp, you would say the Motor Vehicle exception doesnt apply because its covered by a tarp . No, your honor, if it were parked on the street then the automobile exception would apply. Whats the relevance of the tarp . The relevance of the tarp is essentially that there is a there is some expectation of privacy in a tarp, particularly placed within the curtilage of the home. So the location of the motorcycle is very important here. So what difference does it make that the tarp was there . The tarp perhaps makes it particularly clear that the officer was undergoing a search, not just, say, walking where he could have said, oh, this is almost counsel, lets change the hypothetical. Is there still a violation under your theory of law if the motorcycle was in plain view in the curtilage, and he just walked onto the curtilage . I dont know where the vin is on the motorcycle, by the way. In a car, its within the car. So you have to open the car door. But lets assume that you have to move something in the motorcycle. I dont know, do you . I dont think you would have to move something on the motorcycle. And so lets just assume that. No top on it. Does your argument still stand . Yes, your honor. So if the motorcycle is where the motorcycle is in this case, but there is no cover on it, there is a Fourth Amendment violation, and that is well, why . Because, i mean, suppose the policeman is standing on the sidewalk. He the window of the house is quite close, and there inside he see as huge pile of cocaine. I thought, but perhaps ive got it mixed up, i thought that seeing something that is an illegal substance that can be easily disposed of in about 3 seconds would, in fact, justify, create an exigent circumstance under which the policeman could enter. Am i wrong about that . Close, your honor. So what is the law there . If an officer standing on the sidewalk looks into the window of a house and sees a pile of drugs through the one i do. Yeah. That creates probable cause that would permit the officer to get a warrant to go in the house. He gets a warrant and they throw it all down the sink. Because there is nothing by the time he comes back. I thought that was an example of an exigent circumstance. You know the area of this law better than i do, i guess. That isnt . Its not impossible that there would be an exigent circumstance. Ive given you the facts. The facts are, theres a big pile of cocaine right there, and somebody wandering around inside, and cant he what is an exigent circumstance if it isnt that . Its particularly important to that hypothetical that theres someone wandering around outside. He has reason to think theres somebody in the house. Right. So its certainly possible that it could be created if theres a person if thats an exigent circumstance and you happen to see now, changing the situation, you happen to see a motorcycle, which is a rather unusual shape, and happens to look identically like the one that you know was just stolen, you cant go and go look at it . You have to get a warrant . Of course they drive away in the meantime, but nonetheless youre there by yourself, no other policeman. Its in the window, okay. Or its in the driveway. Why cant you . Just to be clear in this case the Supreme Court of virginia steered away from exigency and said, no, were not i know that. Thats why i thought the tarp made a difference. And thats why i thought this was a case about a tarp. Oddly enough, and not a case about whether you have an exigent circumstance. It is not case you just told me im wrong. This is not an exigency case. The Supreme Court of virginia specifically no, i know that. What im trying to get at is i suddenly thought i dont understand this case because you said the circumstance is the same without a tarp. Thats what confused me. Thats why i asked the question. So the officer testified that when he arrived at the property there was no one home. And the exigency, the relevant exigency, were there one here, would be imminent destruction of evidence. And he testified that no one was there. The motorcycle is under a tarp. He has a picture or a cover. He has a picture of the motorcycle, in exactly the same place from facebook, which he must know was taken at least a few hours earlier because hes been with the person who he believes owns the motorcycle in the meantime. So theres no obvious exigency here. Mr. Fits im sorry. There is no exigency here and that would be an issue for remand. Could i go back to the exchange you had with Justice Alito. When you gave the hypothetical about drugs, he said that would be different, different in a home. But here you have the motorcycle parked out in the open on the driveway in this enclosure where you can see it from the street. And i guess this is the question i want to ask you. If there is that difference, like in a home you better have a warrant. But here its out on the street. But in the curtilage, in the curtilage, and thats established. Yes. Its not disputed here. How far are we committed by jardeans to treat the curtilage exactly as a home . That seems to be important. Given the things you and Justice Alito agreed on. How far do we say, look, what jardeans said or what weve said in other cases is we have to treat the curtilage exactly as we would the home, even though you can actually see the motorcycle on the curtilage . Yes, your honor. So in jardeans, the court said, the curtilage is protected as part of the home itself for Fourth Amendment purposes. And even the court in jardeans and at the time the court was quoting oliver t 1984 case that recognized open fields and said the same thing. And the idea that curtilage is protected as part of the home itself is important, and i think isnt it whose curtilage it is. Here were told that there was a close relationship between the defendant and the homeowner. But suppose there werent that close relationship. Suppose it was a brand new girlfriend, and who never stayed overnight, he was hopeful, but he hasnt. Its parked the same way. So you may, your honor, be it sounds like you are describing a difficult case of Fourth Amendment standing or right to object. This court is very clearly said in minnesota versus olson that the overnight guest has the right to object, and thats the status in this case. At minimum. I mean, really, its his family, the mother of his child, his child who lives there, and she is the lessee. He spends several nights there. On the other end of the spectrum, being in a place for a couple hours to do business would not create a right to object. To the extent connection to the property, connection to the curtilage would be treated the same way as connection to the house. Coming back to justice to the question. Did we say in jardeans that the curtilage is to be treated the same as the house for all Fourth Amendment purposes . I thought the issue in jardeans was whether was whether officers who did not have probable cause were permitted to walk up to the front of the house . At which point they acquired probable cause. Well, yes, your honor. So jardeans identified a search, and it identified a search of the home based on actions taken exclusively in the curtilage of the home. And the majority essentially said, as i read it, that the officers acted beyond the scope of the implied license when they brought a drug dog, and they spent a few minutes in the curtilage, sniffing around, thats not what there would be an implied license to do, which is essentially just a knock and talk. So its a search of the curtilage, and the court stopped there. This court stopped there, but of course it was affirming the florida Supreme Court, which had thrown out the search for lack of a warrant based on the protection of the curtilage. Counsel, we permit the police to seize items in plain view in a home. They get a search warrant for the home. They see an item that they have probable cause to believe is incriminating evidence. They can seize it. Justice breyer said exigent circumstances kmerpermit the po to seize items. I think the assumption, or not the assumption, the premise of all of those cases is that the police are there legitimately. If you have a warrant, you are permitted to be there. In jardeans, you could couldnt seize the incriminating evidence wafting from the house because you didnt have a right to be in the curtilage. And so isnt there a difference when you are in the street, as these Police Officers were, they have a right to be on the street, they have a right to look at whatever is visible, and they could see the motorcycle from there, so is this a plain view case . Is this an exigent circumstance case . Thats why i thought that justice br Justice Breyer was asking whether the search of the tarp was part of this. Because was this in plain view in essence . As i understood it they werent sure it was the same motorcycle. I thought the wheel was the same. Im not sure why they needed that if they knew the motorcycle was stolen, or did they not know yet that it was stolen . The record is unclear, and we would not we dont believe that the officer thought the motorcycle was stolen. He was looking for the motorcycle how do you attribute the way im looking at this, which is the police are standing there. They see something and have probable cause to believe that its incriminating evidence. How is that different than being inside the home with a warrant . And again, im not sure i see the difference, although the tarp is a difference because they are lifting theyre searching Something Else besides the motorcycle. So, your honor, this is not a plain view case because in horton versus california, the court said in order for plain view to apply to allow the seizure of the thing, the officer must have a right of access to the thing itself. So theres no right of access. Theres no implied license to go into the curtilage to look for evidence that you have seen. And so seeing the motorcycle from the street in this case is just like seeing the motorcycle or seeing drugs through the window of a house. Do you dispute the fact that they had probable cause to believe that the thing that they saw covered by the tarp was the motorcycle they were looking for . We do not dispute that. Okay. And so ultimately here, this is a fairly straightforward case, i think, the motorcycle is five feet you dont dispute in other words, you, in your view, you agree that the policeman standing on the sidewalk knows that that item covered by, or at least has probable cause to believe, covered by the tarp is the possibly stolen motorcycle, you agree with that . He has probable cause to believe that is the motorcycle that eluded him in traffic, that he was looking for. Of course there could be other things under the tarp as well as the motorcycle. He didnt really have to lift the tarp at all. Well, he wanted to lift the tarp to be sure. Thats his decision. He didnt have to. In your view he could have just grabbed the whole thing, tarp and all, if he had access. Well, he didnt have access. I know that. But im saying if hed had access to it, if theyd said please come to my curtilage. Now, if that had given him access, he could have just grabbed the whole thing, tarp and all. Is your view im saying, do you agree i thought from what you just said, i was surprised but i thought that now you do agree that that is the case, he could just grab the whole thing . Do you agree with that or dont you agree with it . No, your honor. He is investigating the crime of eluding him in traffic. Ultimately that is a crime committed by the driver. I think we got confused about that. The police were looking for him because he eluded them by speeding away. The evidence of the theft comes when they see the number after they lift the tarp. Yes, your honor. Now, there is some it is agreement in the record about that. But the officer testified he went to the house solely to look for the motorcycle that had eluded him, he was asked, was the motorcycle did you think the motorcycle was contraband . And he said no. So he was looking into the eluding, and when he ran the vin number he found that it was stolen. So he didnt know this was stolen property yet, the vin number this is like jardeans, the vin number gave him that information. That is what he stated, yes. You could see under the tarp, right, some identifying characteristics in the extension of the wheel that allowed it to go 140 miles an hour, and the color scheme and all that . Well, you couldnt see the color scheme. But you could see the basis for the probable cause is he has the facebook picture that shows the motorcycle not under a tarp and then he gets to the house and its under a cover, in the same spot. But its probably cause to arrest the driver. Its not probable cause to arrest the motorcycle. Its the driver that he was charging charging elusive driving. It is a Police Investigation in which hes ultimately trying to find the driver. You cant seize the motorcycle, putting aside the curtilage question . You have probable cause to believe that this person was driving that type of motorcycle. Its an honest question. I dont know the answer. Dont you have probable cause to then seize the instrumentality of the crime . I think that you do, your honor, but the curtilage i know the curtilage you cant really set that aside. Maybe t