By: Michael R. Stiff
Illinois state and federal courts have been ever expanding the protections afforded the owners of vehicles on private property, even when the vehicles are clearly abandoned and derelict. Municipalities with code enforcement issues relating to nuisance, abandoned, and derelict vehicles on private property must be aware of the Constitutional protections afforded to owners of these vehicles. In a recent United States Supreme Court decision, the Justices, in an 8-1 decision, held that the owner of a motorcycle had a greater 4th Amendment right when it was parked in a driveway and covered with a tarp.
In Collins v. Virginia, 138 S. Ct. 1663 (2018), a Virginia police officer investigating a complaint involving a motorcyclist who was excessively speeding located a motorcycle that matched the description of the offender’s vehicle. The officer observed the motorcycle parked in the driveway of a residence and covered with a tarp. The officer removed the tarp, ran the plate and VIN number, photographed the motorcycle. and replaced the tarp. Not only was the motorcycle the vehicle involved in the speeding incident, but it was also stolen.
Mr. Collins was charged and convicted of the theft. The Virginia state courts held that the search fell under the “automobile exception” to the 4th Amendment, and thus that it was justified even though the officer did not have a search warrant. The automobile exception relies on the understanding that vehicles can be easily moved from the scene before an officer can obtain a search warrant. Vehicles on public roads are generally subject to regulation while they are being operated, and when a police officer has probable cause to believe that a motor vehicle was used in the commission of a violation or crime on any public road, a warrantless search of the vehicle is generally justified.
However, the U.S. Supreme Court disagreed, holding that the defendant had a right of greater privacy because the motorcycle was parked within the “curtilage” of the home (i.e. the area immediately surrounding the house). Courts have found the curtilage to be more closely linked to the home and is therefore entitled to greater constitutional protection. The Court went on to determine that the automobile exception did not extend to the home or its curtilage, so the warrantless search was improper.
To read the case, click here.
Given these protections, municipal code enforcement officers are faced with the challenge of identifying the “owner” of a derelict and abandoned vehicle on private property. Many Illinois courts (federal and state) have held that removal of a broken out, burned and abandoned vehicle from private property still requires notice to the “owner”. When there is no license plate or registration which can be seen from the street or sidewalk, the code enforcement should first attempt to obtain consent from the property owner to enter the property to obtain the VIN or other information which might lead to identifying the owner. Absent such consent, the officer should first obtain a court order allowing access to the property. That is only the first step, as then the vehicle owner needs to be identified and provided notice of the intent to tow/remove. This presents even further headaches for the municipality, as locating and serving the owner can be difficult, and expensive.
