WHEN IDLING CAR IN YOUR OWN DRIVEWAY BECAME ILLEGAL IN AMERICA

How many of you have woken early one cold winter morning raced to your car in the driveway, cranked it up and turned on the heater to warm it for the kids? Or better yet, how many of you have gone to your car in the driveway to crank it up during the summer to get the car cool, leaving the vehicle unattended in your driveway while you go back inside to get the kids? Did you know in some places this is illegal? Welcome to lovely Roseville, Michigan (near Detroit) whose nanny-statism knows no bounds. You see, the City of Roseville passed a municipal ordinance (under the guise of public safety) criminalizing persons who leave their car unattended (even if on your own property) and idling. Here is the ordinance:

Why would any liberty-loving government pass such a crazy law? The police say it is the danger of innocent owners becoming victims of theft. Roseville authorities claim 7,000 cars were stolen in SE Michigan in 2015 when keys were left inside and running unattended . In essence, the government is targeting innocent owners (for their own good), the same owners the criminals target. Pick your poison. Who should the innocent owner fear most here, a potential criminal or a well-intentioned government bureaucrat?

According to media outlets, 24 year old Taylor Trupiano awoke on the morning of January 5, 2017 to a brisk 5 degree Fahrenheit Michigan morning. He ran outside to start his 1997 Chrysler Concorde to warm it up for his girlfriend’s two year old child who suffered from cerebral palsy.[1]

Taylor Trupiano with his girlfriend and the child whom he started car

up for on 5 degree Michigan January morning.

Photo from Mitch Hotts of The Macomb Daily

When he came back out, he found a ticket on his windshield for leaving the car unattended while idling with the keys in it.

If you think Roseville or Michigan is an outlier here, other states and local jurisdictions have similar laws on the books. According to the EPA, 31 states or their localities have similar laws.[2] Interestingly, neither Michigan nor Roseville are listed.

After he received the citation, Trupiano took to social media: “Let’s all take a moment to thank officer dips—t K. Keary for wasting the taxpayer’s money and giving me a ticket for warming up my car in my own damn driveway.”[3] This prompted the Chief of the Roseville Police Department James Berlin to quip “You see the disparaging comments he made about my officer? Drop dead.”[4] As of this post, Trupiano’s post has been shared 14,086 times.

THE TRIAL

Mr. Trupiano’s attorney, Nicholas Somberg, challenged the officer’s public safety justification for enforcement of the ordinance against his client-“The officer said this is a public safety issue.” Somberg said. “When I cross-examined him I said did you knock on the door? The car was right next to the house. Did you knock on the door and let him know? He said no. So you left the car just as you found it running with nobody there. Did that improve the safety of it, no.” Here is a video of Somberg discussing it.

In a pretrial motion to dismiss, the defense and after testimony was taken by the Court, Somberg argued the ordinance does not apply to a citizen in his own driveway. The Court rejected this defense, and found Trupiano guilty.

DEFECTIVE CITATION

In addition to the absurdity of the law, the officer cited the incorrect ordinance on the ticket. According to Fox 2 Detroit, “The ticket shows ordinance listed as 99006 but there is no ordinance in the city or state that corresponds to 99006. Under the description of the offense, it lists VEH/MOTOR ON UNATTENDED 895. Ordinance 895 is listed as being part of ‘rodent control’ on Roseville’s website.” Of course there is the possibility that the ticket pictured by the defendant was not the same charging instrument as the one turned into the Court so there may be a properly executed citation before the Court we do not know about. Sometimes officers will hand a ticket to an accused that’s different than the citation ultimately turned into the court. Additionally, the City may have nolle prossed the original citation and rewritten the citation so as to charge the proper offense. We just don’t know. Nonetheless, it reflects poorly on the City.This is an independent ground for the citation to be dismissed (and I would presume the officer could re-write the ticket).

The Officer testified under oath that he was driving his patrol vehicle near the home of the defendant and that his attention was drawn to the defendant’s vehicle by the exhaust coming from the exhaust pipe and “at first glance, I saw no one inside the vehicle or around the vehicle.” The officer then stopped his patrol vehicle directly in front of the defendant’s home. The officer did not see anyone in the car or looking out of a window, and no one was in the yard. The officer then decided to approach the vehicle and look inside of it. The car was unlocked and the keys were in the ignition. The officer then walked back to his vehicle and ran the tag information to determine who the registered owner was.

The officer testified that the defendant’s vehicle was “the rear bumper of the vehicle was no more than 3 foot away from the sidewalk.” It was not on the side of the home, rather “it was in the front part of the driveway.” The officer testified that for the duration of his investigation, no one came out of the home, and that from the time he stopped to investigate until the time he left, between 10 and 12 minutes passed. The owner never came out and there was “no one there to take care of the vehicle.” After issuing the ticket, the officer left the vehicle idling, just as he found it. The officer attempted to take no photographs of the vehicle nor did he engage his vehicle camera, and he was not equipped with a body camera.

The officer testified he issued the citation and placed it on the window of the defendant’s car and then left.

Did the officer ever witness anyone operating the vehicle or in actual physical control of the vehicle? It appears from the testimony he saw the car and just placed the ticket on the window of the car and left. I am curious as to how the government in this instance can prove its case (assuming the defendant does not testify) without the officer personally witnessing the defendant committing the infraction (i.e. the corpus delicti). The officer testified he issued the citation to the registered owner of the vehicle but never knocked on the door or attempted to confirm who left the vehicle idling unattended. The government without further evidence or investigation could not rule out a third party having committed the offense . The government has the burden to rule out all reasonable hypotheses but that of guilt. Additionally, unless the officer arrests the defendant, the defendant must generally sign the citation (which is the defendant’s bond or promise to appear in court) as well as placing the person accused on notice of what his or her charge is. Neither of these appear to have been done in this case.

FOURTH AMENDMENT ANALYSIS

Does leaving your car in your private driveway unattended and idling give the police probable cause to come on to your property under the ordinance to search?

In the final analysis, if the law authorizes a warrantless entry onto a citizen’s private property in order to protect the citizen from no crime in progress for the supposed benefit of the citizen (public safety issue) then this law is an ass. Apart from the ordinance, I believe several constitutional rights of the accused are implicated not the least of which are Fourth and Fourteenth Amendment. This is not a public safety issue, as the officer’s conduct belies this asserted governmental interest.

I suggest the Court got it wrong when it attempted to distinguish the privacy afforded portions of a citizen’s driveway in this instance, even if accessible to the public. I do not think the Constitution makes such distinctions, especially in the wake of recent United States Supreme Court precedent. I suggest that the trespass theory recently articulated by the United States Supreme Court in United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013) would require the ticket to be dismissed.

When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3 (2012) (slip op., at 6, n. 3). Admittedly “the Fourth Amendment does not, therefore, prevent all investigations conducted on private property…”Hester v. United States, 265 U. S. 57 (1924). But when it comes to the Fourth Amendment, the home is first among equals. At the Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511 (1961). This right would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity; the right to retreat would be significantly diminished if the police could enter a man’s property to observe his repose from just outside the front window. We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amendment purposes.” Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester, supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 213 (1986). While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.” Oliver, 466 U. S., at 182, n. 1 2. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.” Ibid.

In Footnote 4 Justice Scalia writing for the majority notes:

“The mere ‘purpose of discovering information,’… in the course of engaging in that permitted conduct does not cause it to violate the Fourth Amendment. But no one is impliedly invited to enter the protected premises of the home in order to do nothing but conduct a search.”[5]

Ultimately, Honorable Marco A. Santia, chief judge of the district court, found Trupiano guilty and assessed the $128 fine. Judge Santia said that the defendant’s private driveway was open to the public. I think this analysis fails because as Justice Scalia opined “no one is impliedly invited to enter the protected premises (here the defendant’s driveway) in order to do nothing but conduct a search.

“No one is impliedly invited to enter the protected premises of the home

in order to do nothing but conduct a search.” Justice Antonin Scalia

In the final analysis this is exactly the unlicensed physical intrusion upon a citizen’s private property the Fourth Amendment prohibits. I would suggest that a citizen’s driveway is a constitutionally protected area in this case even if open to the public and even if third parties had license to enter the property. See Florida v. Jardines, 569 U.S. __ (2013) where the court held that “using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a ‘search’ within the meaning of the Fourth Amendment. (Id. at p. ____, 133 S.Ct. 1409, 1413.) ” The Court in Jardines noted:

We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amend­ment purposes.” Oliver, supra, at 180. That principle has ancient and durable roots. We therefore regard the area “immediately surrounding and associated with the home”—what our cases call the curtilage—as “part of the home itself for Fourth Amend­ment purposes.” Oliver, supra, at 180. That principle has ancient and durable roots. Just as the distinction between the home and the open fields is “as old as the common law,” Hester, supra, at 59, so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects and privileges all its branches and appurtenants.” 4 W. Blackstone, Commentaries on the Laws of England 223, 225 (1769). This area around the home is “intimately linked to the home, both physically and psychologically,” and is where “privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 213 (1986).While the boundaries of the curtilage are generally “clearly marked,” the “conception defining the curtilage” is at any rate familiar enough that it is “easily understood from our daily experience.” Oliver, 466 U. S., at 182, n. 12. Here there is no doubt that the officers entered it: The front porch is the classic exemplar of an area adjacent to the home and “to which the activity of home life extends.” Ibid.

In United States v. Jones, 565 U.S. __ (2012), the United States Supreme Court quoted from Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765) a case from Great Britain:

This ‘case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’” with regard to search and seizure… In that case, Lord Camden expressed in plain terms the significance of property rights in search-and seizure analysis:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.

It should be noted however, prior to the Supreme Court rulings in Jones and Jardines there was significant lower court case law to the contrary noting driveways as not within the curtilage.[6]

THE APPEAL

The Michigan state legislature seems to hear the public outrage loud and clear and have responded with proposed legislation HB 4215 — which according to The Detroit Free Press “was approved last month by the House Committee on Transportation and Infrastructure, but hasn’t been taken up yet by the full House. It would still be a civil infraction if a person left their unattended, but stopped car running on highway.

A Good Samaritan has already tried to pay the ticket. However, if that is true that could jeopardize the appeal. I find it very difficult to believe a clerk would accept payment, which would in effect end the case and cause the clerk or court to close out the ticket and foreclose appellate review of the case. I am not sure of the nature of the appellate review, but if like in Alabama it would be de novo.

TRUPIANO’S ATTORNEY HELD IN CONTEMPT

The trial was not without drama as Trupiano’s attorney, Nicholas Somberg, was found in contempt of court after the judge discovered his associate was live-streaming the proceedings on Facebook without the permission of the Court. You can watch Somberg as he discusses his contempt charge here. The Judge found him in contempt then set the matter down for a contempt hearing to be heard later.

THE NINE MOST TERRIFYING WORDS IN THE ENGLISH LANGUAGE

This case brings to mind the nine most terrifying words in the English language: “I’m from the government and I’m here to help.” The Government sanctioning a citizen for not protecting himself from a crime that never occurred.

In the final analysis the City may have prevailed at the trial, but now the City of Roseville will be forever known as the place where one man’s liberty was sacrificed upon the altar of governmental progressivism. The City should dismiss the citation as improvidently issued.

Here is a link to the trial video– You Be The Judge.

Here is my interview on FM Talk 1065 on April 26, 2017 with Sean Sullivan

About the Author: Matt Green is a former assistant district attorney who prosecuted major felonies and violent crimes in the Baldwin County District Attorney’s Office. He served as a municipal court judge in the City of Mobile as well as the City of Saraland where he presided over thousands of traffic trials. He is President of the Mobile Federalist Society for Law & Public Policy Studies. You may follow him on twitter @GREENLAWOFFICE or on Facebook.

Endnotes

[1] https://www.usatoday.com/story/news/nation-now/2017/04/21/idling-car-ordinance-michigan/100762988/ (visited April 23, 2017)

[2] EPA Compilation of State, County, and Local Anti-Idling Regulations available online https://www.epa.gov/sites/production/files/documents/CompilationofStateIdlingRegulations.pdf (visited April 22, 2017)

[3] http://www.wnd.com/2017/01/police-chief-to-ticketed-man-drop-dead/#hIHCV1E9PibrdKyQ.99 (visited April 23, 2017)

[4] http://www.clickondetroit.com/news/roseville-man-criticizes-officer-who-gave-him-ticket-for-warming-up-car-in-own-driveway (visited April 23, 2017)

[5] “This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.” See Kyllo, 533 U. S.27 , at 31–32 (2001).

[6] See United States v. Alvin, No. CR208-25, 2009 WL 722267, at *3 (S.D. Ga. Mar. 18, 2009), adopted at *1; see also United States v. Galaviz, 645 F.3d 347, 355-56 (6th Cir. 2011) (citations omitted) (noting that even if proximity to the house was close enough to possibly constitute curtilage, a “short driveway” “at least two car lengths long” was not curtilage where it “was not enclosed by a fence or other barrier” and “no apparent steps were taken by the residents of the house to protect the driveway from the sidewalk or street”); United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982) (per curiam) (holding that a driveway is not “protected curtilage” because “a driveway and portion of the yard immediately adjacent to the front door of the residence can hardly be considered out of public view”); cf. United States v. Quintana, 594 F. Supp. 2d 1291, 1301-02 (M.D. Fla. 2009), adopted at 1294 (finding a paved driveway near the front of a residence to be curtilage where law enforcement accessed the driveway by jumping over a fence and unlocking an electronic driveway gate).

The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyer