{"id":1756,"date":"2008-04-06T18:46:59","date_gmt":"2008-02-05T06:26:31","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-02-05T06:26:31","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1756","title":{"rendered":"Car in driveway not per se subject to search; PC always required"},"content":{"rendered":"

Defendant’s car parked in his driveway could not be searched because there was no probable cause, citing, inter alia, Coolidge<\/em><\/a>. United States v. Smith, 533 F. Supp. 2d 227 (D. Mass. 2008):<\/p>\n

At least five Circuit Courts have held that the motor vehicle exception applies even when a car is parked on a private driveway. See, e.g., United States v. Hines<\/em>, 449 F.3d 808 (7th Cir. 2006); United States v. Brookins<\/em>, 345 F.3d 231 (4th Cir. 2003); United States v. Fladten<\/em>, 230 F.3d 1083 (8th Cir. 2000); United States v. Markham<\/em>, 844 F.2d 366, 368 (6th Cir. 1988); United States v. Hamilton<\/em>, 792 F.2d 837, 843 (9th Cir. 1986). The Fourth Circuit has suggested, however, that “heightened privacy interests may be triggered when a vehicle is encountered on private property”, Brookins, 345 F.3d at 237 n.8, and the Fifth Circuit has stated that the motor vehicle exception “may not apply when a vehicle is parked at the residence of the criminal defendant challenging the constitutionality of the search.” United States v. Fields<\/em>, 456 F.3d 519, 525 (5th Cir. 2006). <\/p>\n

The First Circuit Court of Appeals has had at least one occasion to decide whether to apply the motor vehicle exception to an automobile parked in a private driveway. In United States v. Moscatiello<\/em>, 771 F.2d 589 (1st Cir. 1985), the First Circuit upheld the search of an automobile parked in a private driveway, stating that, although it was parked on private property, it was not parked on the defendant’s property and furthermore that the police had pursued the automobile into the driveway (rather than it having been parked there indefinitely). Id.<\/em> at 599-600, vacated on other grounds by Murray v. United States<\/em>, 487 U.S. 533, 108 S. Ct. 2529, 101 L. Ed. 2d 472 (1988). In this case, it is unclear whether 227 Washington Street served as Smith’s residence although he declared in an affidavit that it was not. This Court need not decide the scope of the motor vehicle exception or whether the Mazda was parked at Smith’s residence because, notwithstanding those contingencies, there was no probable cause to search the vehicle.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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