Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded at our CSSI class in Irving, Texas, on day four of the five-day program. Kevin, one of the students going through the class, worked the question with me on camera. The question comes from an officer in Utah.
What we’re doing here is I want to basically have all the students here experience what we experience, which is we get questions from around the United States. We get questions about things that officers face every day. So we can show you cases, and Carroll and Gant and, you know, all these cases. But how about things that these officers are facing every day, things that you face every day, right? When you’re out there.
So I’m going to ask you a question and you just give me your feedback about what would you tell an officer if this was your officer.
He says: “I initiated a traffic stop and the driver pulled into a back alley detached garage.” Now, the officer says he appeared to be like eluding us, right? Probably not stopping immediately and going into the house or the garage. “I investigated the driver DUI and while conducting a standardized field sobriety test, a different officer took his canine out and ran the canine around the car, and the car is in this detached garage.” That’s important. “The driver’s ultimately arrested for DUI and the vehicle was impounded. My question is, are these lawful? Number one, was it lawful to run the canine? And number two, what do you think about maybe taking the car from the detached garage?”
Is a detached garage protected by the Fourth Amendment?
Kevin’s answer: once he pulled into the garage, it’s going to be considered curtilage. You’re going to have a curtilage issue there. Then a home issue.
Correct. You would say that the structure, though it’s not attached to the home, and we don’t have a map of this, but no matter what, a curtilage structure is protected by the Fourth Amendment.
So in US versus Dunn, I mean, the manner in which it’s used, the screening, the proximity to the home, and you know, I think the way he’s describing here I would consider it curtilage. So we do have a Fourth Amendment issue here.
Can police chase someone into their garage just because they did not stop?
Now, what about getting into the garage itself, right? Because there is a case called Lange versus California that basically kind of cautions officers to say, “Look, if you are going to, you know, somebody’s eluding you and you’re going to chase them into a garage, you do got to be a little careful, right?”
Because there is no automatic rule to get into a home just because somebody’s not stopping and they go in. And some people say, “Whoa, so Anthony, is this a home base?” Yes. I mean, it is home base. I’m sorry to say it like that, but it is, right? There is a home base rule under the Fourth Amendment.
Does a DUI investigation create exigency to enter the garage?
However, it’s not like it’s that hard to articulate exigency.
Do you think if the officer had objective reason to believe the person was DUI, that that would be some form of exigency to get into the garage? Kevin says yes. And you would agree the fact that the evidence is dissipating. They’ve already made bad judgments by fleeing the police. What’s normally in houses? More alcohol.
And would they have a motive, and an opportunity, and ability, right? Those three main things that courts look at, to keep consuming alcohol so that they actually almost ruin the evidence that you would have about the alcohol? Absolutely. It’s actually a golden ticket out of a DUI, right?
So you’re good with the entry. So am I.
Can a K9 sniff a car parked on curtilage?
Now, what about the canine sniff?
No. I’m not okay with that. You’re bringing the dog in to sniff around. It’s considered on curtilage at that point. There’s a Jardines issue there.
Yeah, Jardines is all about being lawfully present, right? So I’m not okay with that one, because it is on curtilage.
And also, do you need that canine to confirm your suspicions about the guy being intoxicated? No. It’s not a DUI drug. You don’t sniff the guy and say, “Yeah, he sits down.” You’re like, “This guy’s over a 0.08.”
So you don’t like the canine sniff. I got to tell you, I don’t like it either. Because again, it’s a Jardines issue. It’s also a home entry issue, because the garage is probably part of the home, you know, structurally, right?
Now, he does say the garage is kind of like open. I’m maybe picturing like a carport. But you’re going back to Jardines, and to Dunn on curtilage.
Can you impound a car out of someone’s own garage?
Now let’s talk a little bit quickly about impounding a car, towing a car from a garage. I got to say that I would be a little careful about this.
I have talked about this issue many times on this channel: when the government takes a vehicle, they do so for one of five reasons.
Number one is the policy mandates it. However, if your policy mandates it, it’s because it’s a community caretaking rationale, which may or may not exist. The courts have been very clear. The Supreme Court and local courts have been very clear that your policy, even though it mandates tows, still has to contemplate a community caretaking rationale.
Now, I agree that if a policy says, “We shall tow cars for DUIs,” I do believe that is a community caretaking rationale in general. The problem is this vehicle is actually on home base, and I just don’t, I think that the community caretaker rationale has actually been eliminated. Because the guy could, I guess you know, get the car released from the tow yard and bring it back to exactly where it’s supposed to be, which is at home.
Kevin’s pushback: well, if they get out of jail they can go back and get into the car. Well, I guess they can go back and get the car out of the tow lot too. So if you put a hold on the car, I guess that’d be more convincing to me.
So: policy requires it. The law requires it, and some states require a tow under these situations for DUIs. It’s evidence of a crime, and that means you’re going to hold it for trial. You’re going to forfeit it, you’re going to take it as proceeds of a crime, like selling drugs. And the community caretaker policy. So I think I had all five, if not, but the point is, that’s, I would be concerned about the impoundment. I think that it’s a little suspect here that the vehicle is literally in their garage.
The short version
- Once he pulled into the garage, it’s going to be considered curtilage. Then a home issue. A curtilage structure is protected by the Fourth Amendment, whether or not it’s attached.
- Lange versus California cautions officers. There is no automatic rule to get into a home just because somebody’s not stopping.
- It’s not like it’s that hard to articulate exigency. The evidence is dissipating, and what’s normally in houses? More alcohol.
- I’m not okay with the canine. It’s a Jardines issue, and Jardines is all about being lawfully present.
- You don’t need the canine to confirm your suspicions about the guy being intoxicated. It’s not a DUI drug.
- I would be concerned about the impoundment. It’s a little suspect that the vehicle is literally in their garage.
I think this is actually happening more and more, by the way. It seems like there’s an epidemic around the country of people just pulling into their driveway thinking they’re getting home base. That’s right, and in some ways they do, but some ways they don’t.
Until next time my friends, keep making good case law.
Related from Blue to Gold
- Can a Driveway Traffic Stop Allow a K9 Sniff?
- Can You Tow a Suspect’s Vehicle From Inside the Garage?
- Can an Officer Enter a Garage Just to Close It?
This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#1017
