A Man's Curtilage is His Castle

[XLFD]

You may have caught the notice posted on the Ludington Police Department's Facebook page this Friday, alerting city residents that LPD would be tagging inoperable vehicles starting this coming week:

While many of us may look at this as a positive way to attack blight in our city, blight often highlighted by a junk vehicle gathering rust on a neighborhood property, it worries many others concerned about the potential intrusion by government onto their property.  

I used to manage a small rental property in Ludington offering low rents, which often meant that the tenant's vehicles in the side parking lot were far from new.  One tenant was doing some work on his truck for a period of a couple of weeks, waiting on his next paycheck to finish it out, when his vehicle got one of the City's tags on it.  He was upset for getting the annoying tag on his truck's rear window, I was upset because it showed that the police officer who placed it was well onto the private property, mere feet from the unit I was living in.   This was about twenty years ago, I was on the LFD at the time, so I didn't press the issue since the tag actually worked to my benefit by inspiring the tenant to quickly finish his repairs.

Yet the issue should be revisited because we have seen what can happen when police officers trespass onto your property for code enforcement of junk vehicles in the case of Lee Milks in Manistee.  Officer Doug Vansickle thought he had the power to freely move about Milks' property, in particular the backyard where an old bus was parked.  As we will confirm, he had no power to do that.  The officer's error led to him shooting Milks seven times without Milks ever firing a shot.  

Tim Kozal, who would obfuscate and actively hide the records about the Milks case from the public for two years, until a court acting on a superior court's remand ordered the release of the records to the public, is now the police chief for Ludington.  He is now going to have his officers go around town looking for inoperable vehicles with a definition much more expansive than it was 20 years ago, thanks to the new chief.

Last summer, the council quietly passed Ordinance 454-21 unanimously declaring that vehicles without proper registration could be labeled inoperable by the ordinance, despite the ongoing issues the SOS office was having with registering vehicles due to pandemic measures.  Chief Kozal would mention at the meeting that his officers would be talking to the homeowner in their investigations of inoperable vehicles to make sure that was not the problem.  

The problem, however, is the expansion of police powers in Ludington.  There is nothing in the local code preventing the local police from trespassing on your property and slapping an 'inoperable vehicle tag' on your brand new 2022 Corvette because you haven't got a plate for it yet.  Neither is there anything in the 400+ pages of the LPD's policy manual.

Likewise, and noting that LPD Officer Austin Morris recently misused the LEIN to check the criminal background of a person not suspected of committing any crime, officers can now creep up your driveway, into your side yard and backyard and check out all of the information they can find on the cars and their owners.  This can be a serious invasion of your privacy.

One may say they have no need for the search and seizure protections found in the Fourth Amendment because they have nothing to hide.  Yet would they also say that they have no need for the speech and expression protections found in the First Amendment because they have nothing to say?  Let's not forget that England violating the Fourth Amendment rights of the American colonists led to the Revolutionary War.

This type of unwarranted government intrusion also led directly to the death of a Manistee citizen who knew his rights and the limits of government power, it will also lead to bad results here as well.  While Chief Kozal was hiding the dash cams and police reports from the MIlks incident in 2018, the Supreme Court of the United States was affirming that Officer Douglas Vansickle had tread where he never should have.  

In Collins v. Virginia, the issue arose after police investigated two traffic incidents involving an orange and black motorcycle with an extended frame, an officer learned that the motorcycle was probably stolen and in the possession of Collins. Officers discovered photos on Facebook of the motorcycle parked in the driveway of a house, drove to the house, and parked on the street in front of the house. From the street the officers could see what appeared to be the motorcycle under a white tarp parked in the same location as the photos they reviewed.

The residence was rented by Collins’ girlfriend and he was an overnight guest. This area was inside a partially enclosed top portion of the driveway that abuts the house. Without a warrant or consent, officers walked to the top of the driveway and pulled back a tarp concealing the motorcycle so that they could see the license plate and VIN number to confirm it was stolen. The officers had to walk 30 feet or so up the driveway to remove the tarp. Officers took a photo and waited for Collins whom they arrested upon his return. Collins moved to suppress the evidence as a trespass under the Fourth Amendment on the curtilage of the residence.

Curtilage is a buffer around the structure of a home, otherwise officers could walk right up and look into windows. Legally, it is the area immediately surrounding and associated with the home and is considered to be part of the home itself for Fourth Amendment purposes. When a law enforcement officer physically intrudes on the curtilage to gather evidence, a search within the meaning of the Fourth Amendment has occurred.  Florida v. Jardines (SCOTUS, 2013) considered the front porch, side garden, or area outside the front window to be part of the curtilage. (It can be argued that Jardines extended the curtilage of a home to the street it sits on.)

The Collins Court held that nothing gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant.  Because searching a vehicle parked in the curtilage involved the invasion of the curtilage, officers must show some legal reason to be in the curtilage, i.e. warrant, consent, exigency, or parole or probation terms.  When police step off the curb or sidewalk into someone’s yard, they need to have a legal justification to begin any search and remember to document their reasons for entry.  Here's an additional bit of training for law enforcement officers, which emphasizes that tagging cars in the back and side yards of homes should not be done even when they appear to be abandoned or junk:

So if you find yourself the beneficiary of one of LPD's tags in the coming weeks on a vehicle that is operational and well within your curtilage, you may have an adequate defense in court to their claim and potentially a claim in federal court, should you take offense at this invasion of your privacy.

[Willy]

I'll be the first person who would like to see the elimination of junk cars that are eyesores, attractive nuisances for kids, rodent or wild animal infestations,etc. But labeling a motor vehicle as being inoperative because it has no license plate is way beyond acceptable. First of all an inoperative vehicle is one that cannot function or mechanically operate. A motor vehicle does not need a license plate to be operative. This ordinance is totally bogus. X's description that a fully functional Corvette without a license plate could fall under this revised ordinance is absolutely correct. There's something fishy going on when these kinds of changes are made to allow government agencies to use heavy handed tactics to punish homeowners. Eliminating junk cars I can support, but going on private property to tag vehicles, I cannot support.  Classifying unlicensed vehicles as inoperative is anti Constitutional. What about dune buggies, ORV's, race cars, etc. I think other Michigan cities have tried this before  but the courts have shut them down.

[Freedom Seeker]

What scares me about this is how this very ordinance escalated into death in Manistee with Lee Milks. You would hope Kozal learned a lesson. I hope he isn't out for more police thuggery. Is Ludington city council without civility to citizens?

[Sidney Johnson]

People really need to mind their own business and get a life. There are so many other things in life more important that need our attention and would result in a happier city and community. Perhaps clearing out these meth houses and drug pushers would be a more suitable assignment to for our law enforcement agencies. I am not a rebel but I am a strong Constitutionalist the result of which should life liberty and the pursuit of happiness.