Whether trial counsel failed to bring the issue of the defendant's expectation of privacy in a rental car parked on his private property to the attention of the District Court

QUESTIONS PRESENTED Petitioner Miller objected to an unlawful search of a rental car in his driveway. The District Court held that Miller did not have standing because the car was not his. Collins v. Virginia, 1388 S.Ct. 1663, 201 L.Ed.2d 9 (2018), was decided after the District Court made its ruling. The Fourth Circuit held that the Collins issue was not preserved, because Miller’s trial counsel failed to impress upon the District Court that the salient fact was that the car was on Petitioner’s property. Miller’s trial counsel repeatedly pointed out that the car was on Miller’s property, in the driveway, in the yard, at his residence, and/or that it was not on the street. He also pointed out the following: “Police initially entered Miller’s yard without any warrant whatsoever — not a search warrant nor an arrest warrant.” “And in that, [Miller and his wife] still had an expectation of privacy.” [Court interrupts: How?] “Well, it’s parked in their driveway and they have a contract with [the rental company].” “And their expectation of privacy is they still have that because it’s sitting in their yard.” “The additional fact I would add and reiterate that I think addresses Your Honor’s concerns is this. It’s on private property. And I think that makes a world of difference. The police had no right without a search warrant to even begin to come onto the property to look around and see what’s there.” “That's what I mean. Deputy Ham when he arrives pulls in the driveway with no search warrant for the car, nothing. And right there is where the illegality occurs. You know, Justice Scalia in, I think it was Carpenter decision that talked about a tracking device and I know that’s different. But he talked about the property interest people have and that when police commit an illegal search, it’s a trespass under old common law. ii Then he analyzed from there. Let’s say the car had been in a garage. The police could not have gone in the garage and searched the car and then towed it, inventoried it, and retrieved it; not without a warrant. But just because it’s not in a garage, it’s still on private property in the driveway in the backyard.” “You can’t just the police can’t just go searching on people’s property when there’s no exigent circumstances. Nobody is being shot or robbed on the property in his view. Even if Officer, former Officer Ham’s, testimony is accepted, and he somehow sees it, he knows it’s disabled and it can’t move. There is no exigent circumstance for him to trespass or go on someone’s property without a warrant. At that point, he could have and should have obtained a search warrant for the property to get the car.” “Tn closing, I would just reemphasis [sic], since former Officer Ham knew the kill switch had been executed, the car wasn’t mobile, there was no exigent circumstances for him to go on the property, and at that point he needed a warrant to even go on Mr. Miller’s property to determine whether it was there, if it was the car, and investigate from there. That wasn’t done here.” “And I think that is materially important because it goes back to, you know, if [the car is] on the street, then that creates a different protocol and Fourth Amendment issue for police than if it’s in the backyard. Again, they don’t need a warrant, a search warrant to inspect it on the street. They do if it’s on private property.” “Well, it’s certainly reckless, because the officer would know they need a warrant to come on private property. They don’t need a warrant to determine if a car parked on the roadway is iii “The officer had no right to be there. If an officer pulls up in my yard tonight and starts asking me questions, I can tell him to get the H off my property unless he has got a warrant. ‘Back your car up and leave because you're on my property. You don’t have a search warrant. You don’t have an arrest warrant.’ Now, being who I am, I wouldn’t do that. I'd try to find out who the officer was and say, have you made a mistake?