Lifting car cover in a parking lot looking for vehicle involved in hit and run did not violate an expectation of privacy

The police did not violate defendant’s reasonable expectation of privacy in lifting the cloth car cover on his car in an apartment complex parking lot, and the trial court erred in suppressing the observation. The officer was looking for a vehicle involved in a hit and run, and he traveled through the parking lot, and saw the defendant’s partially covered car, stopped, and lifted the car cover seeing damage. State v. Allen, 216 Ariz. 320, 166 P.3d 111 (2007):

P15 However, the fact that Allen sought to hide the damage to his vehicle by using a car cover does not determine whether he had an objectively legitimate expectation of privacy in the exterior appearance of his car. “The test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity,” but instead “whether the government[al] intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); see also New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986) (“We have recently emphasized that efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist.”). Whether a particular expectation of privacy is recognized by society as objectively reasonable is a matter of constitutional law that we consider de novo. State v. Adams, 197 Ariz. 569, 572, P16, 5 P.3d 903, 906 (App. 2000).

P16 The United States Supreme Court has never held that there is a reasonable expectation of privacy in the exterior of a vehicle. To the contrary, in Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974), a plurality of the Court, after noting that “insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry[,]” id. at 591, held that “the examination of [a] tire … and the taking of paint scrapings from the exterior of [a] vehicle” do not implicate any cognizable Fourth Amendment privacy interest. Id. The plurality reasoned that no reasonable expectation existed in the exterior of an automobile because an automobile “seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and contents are in plain sight.” Id. at 590. In concluding that no Fourth Amendment violation occurred, the plurality stated:

In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the “search” limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed. Stated simply, the invasion of privacy, “if it can be said to exist, is abstract and theoretical.”

Id. at 591-92 (citation and footnotes omitted).

P17 Twelve years later, in New York v. Class, a majority of the Court expressly endorsed the Cardwell plurality’s conclusion that an examination of the exterior of a vehicle “does not constitute a [Fourth Amendment] ‘search'” because the exterior of a vehicle “is thrust into the public eye.” 475 U.S. at 114. In explaining that a motorist stopped for traffic violations does not have a constitutionally protected privacy interest in a VIN located in the interior of the vehicle on the dashboard but obscured from view by papers, the Court observed that the “VIN’s mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment.” Id. Thus, the court concluded, it was only when an officer actually reached into the interior of the vehicle to move papers that obstructed the VIN that a search under the Fourth Amendment occurred. Id. at 114-15. The Court went on to find that the search was not “unreasonable” under the Fourth Amendment because it was “no more intrusive than necessary” to fulfill the lawful objective of viewing the VIN. Id. at 118-19.