Tuesday, February 13, 2018

Tilting at the TXHHSC Windmill. Ep. 2

This is the second entry of my experiences appealing of the Texas Health and Human Services Commission (TXHHSC) denial of long term care disability benefits. It involves my son Zane. I detailed the background in episode one. Again, the reasons for these ongoing entries are there are others out there less equipped than I to prosecute an appeal of this kind.

This entry focus on the timeline, evidence and expectations.

So a couple of weeks ago, I received a call that Zane's disability was not severe enough for continued TXHHSC disability benefits. The call came from Dallas and was not very informative. I was told an "appeal" had been started of the TXHHSC decision. This person was not very informative on the specifics, such as what exactly had been reviewed, who had conducted the review, and how the appeal would be handled. He did tell me the "fair hearing" appeal would be telephonic.

I always worry when I hear something labelled "fair hearing." I mean, are not all appeal of adverse decisions supposed to be "fair?"

In any event we received a notice in the mail Tuesday last week. A redacted version of what was received is to the left. Pardon the formatting, but blogger will not allow the .pdf version to be uploaded. It is difficult to read, but here is the gist: Zane, you have 10 days before your telephonic hearing. Get us your evidence as quick as you can. If you need legal help, call Lone Star Legal Aid.

I have no idea how this is going to play out - I will let you know - but I took the most advantage of the resources available to me. Most important? Zane's primary pediatrician. That pediatrician has been in Zane's life since he was 2 days old. We know him personally, and most specialists forward reports to the primary. If you need to get your hands on medical reports quickly, this is the way to do it. I was able to get copies of most of the items I felt most important from the primary pediatrician. I pared those reports down to 31 pages total. The exhibits total 6, separated primarily by specialist. One exhibit is a picture of Zane. Another is a list of specialists he has seen and their specialty area.

I faxed and overnighted the exhibit package and confirmed with the hearing officer's assistant they were received. The administrative assistant was helpful and made sure I had sent the package to the agency representative (I had not - the agency rep is buried in the paperwork so be sure to make sure you have them properly identified). Rather than have me do it, she sent it to them ("to make sure they can't say they did not receive it"). As I said, very helpful.

The hearing officer is in Lubbock, the TXHHSC agency representative is (I think) in Austin, and most of the paperwork underlying the denial is with the TXHHSC contractor, Blue Cross/Blue Shield in Grand Prairie, Texas. I was told 2 hours had been set aside for the telephonic hearing. It should be interesting.

My next episode will probably be Thursday, when I write about what needs to be proved and who has to prove it.

Friday, February 9, 2018

Two in a Month - If Not a Trend, A Nice Surprise

In the hand down list from this week at the Texas Court of Criminal Appeals, among the cases denied Petition for Review was Ivey v. State, an appeal from the Houston (1st District) Court of Appeals. The underlying case was intoxication manslaughter, the victim a Sheriff's Deputy. The COA opinion was unpublished, and the PDR application to the CCA sought review of alleged impermissible jury argument made by the prosecutor at closing concerning 9/11 and law enforcement.

Interesting to me is that Judge Alcala wrote a published dissent to the denial of PDR. The more interesting thing, for me, was Judge Walker again joined her in the dissent. This marks the second time in recent weeks Judge Walker has joined a dissent written by Judge Alcala. I wrote about the last, Ex parte Moon, in mid-January.

The dissent in Ivey essentially says the State's plea for law enforcement went too far than permitted under Texas law, especially since the jury argument was made on the anniversary of the twin tower attack - September 11, 2015:
Appellant argues in her petition that the prosecutor impermissibly asked the jury 'to strike a blow for all police officers, and particularly the first responders in New York on 9/11.' I agree. The State’s argument would have been a permissible plea for law enforcement if the prosecutor had  acknowledged the visible presence of peace officers in the courtroom and thanked them and the complainant for their heroic service to the community. But this prosecutor strayed far beyond a permissible plea for law  enforcement. Rather, the prosecutor invoked a specific devastating terrorist incident that killed approximately three thousand people, including numerous peace officers, embattled the nation in war for years, and altered society’s balance between freedom and security.
Ivey v. State, __ S.W.3d __ , No. NO. PD-0979-17 *3-4 (Tex. Crim. App. 2018) (Alcala, J. dissenting).

Again, Judge Alcala, in dissent, is communicating to the criminal defense bar that we should not be sitting on our hands during these types of arguments. It is also nice to see that when she leaves, there may be a rising voice on the CCA that will be paying attention to such things.

Wednesday, February 7, 2018

Tilting at the TXHHSC Windmill. Ep. 1

Amongst the universe of criminal defense lawyers with real world trial experience, there is a smaller subset who have children with disabilities. An even smaller subset are those whose children have qualified for long term care benefits from the Texas Health and Human Services Commission (TXHHSC). This is a confluence that makes my situation unusual, if not unique. I am hoping it will result in a multi-entry, real-time "how to" experiment with this blog.

First some background. Basically, a child can qualify for Medicaid benefits either by financial need or severity of disability. My son, Zane, met the latter qualification in 2015. Some may remember last year Medicaid benefits for special needs children were dramatically cut (+/- $350M). This year TXHHSC coincidentally decided Zane’s disability is now not sever enough for continued receipt of benefits. I am not saying the $350M cut has anything to do with the TXHHSC decision, but, well, you know.

Zane’s denial by the TXHHSC has been appealed. This brings me to the my blog experiment. This blog is geared toward criminal law and criminal lawyers. However, I have written – and my blog masthead says - my special needs son will be a blog topic. He has been the topic of several  posts. I figure there are many, many people less equipped than I to challenge a TXHHSC decisions on benefits. So, over the next week to ten days (I found out about the compressed timeline today), I will be journaling what is happening, what works, what does not work, what really does not work, and the adventures of administrative telephonic hearings. I do not intend these posts to be an ongoing gripe session about the TXHHSC or their administrative appeal process. I want these posts to be informative, not a list of grievances. They are called benefits for a reason.

I am as new to the TXHHSC appeal process as the next person. But, hey, I am a criminal defense lawyer. Tilting at windmills is what I do. Please pass whatever information gleamed here to someone who is fighting to receive or keep TXHHSC long term care benefits. I figure there are many going through this process now. They deserve some guidance in a special needs world that can, and often is, isolating.

Saturday, January 27, 2018

Justice Jennings Strikes Again

Justice Terry Jennings of the Houston (first) Court of Appeals writes his mind. More than most intermediate court of appeals justices, he is unafraid of calling out the two courts of last resort in Texas, the Texas Supreme Court (civil) and Texas Court of Criminal Appeals (CCA) for their intellectual dishonesty. 

An example of this occurred Thursday, January 25 2018 in his concurrence in denial of a motion for rehearing en banc in Esquivel v. State, ___ S.W.3d ___, No. 01-16-00301(Tex. App. - Houston [1st Dist.] 2018) (Jennings, J. concurring in denial of Motion for Rehearing en banc) (no Westlaw cite as of this morning). Esquivel involves a shooting by Esquivel of her live in boyfriend. Esquivel grabbed a pistol during a fight between the two of them. What happened next is disputed, except that the boyfriend ended up dead. You should read the opinion for a more expanded recitation of the facts.

The State charged Esquivel with felony-murder, with the underlying felony being aggravated assault with a deadly weapon committed intentionally or knowingly. Esquivel was convicted by a Galveston County jury and subsequently that same jury sentenced her to 27 years in prison.

Brian Wice and Carmen Roe represent Esquivel on appeal. Among their complaints was charge error. Justice Jennings summarizes the asserted error and the panel reasons (the memorandum panel opinion - decided in September is here) for finding no error in his concurring opinion,
[Esquivel] argues that the trial court, in its charge, erred in submitting to the jury the felony-murder application paragraph because it authorized her conviction for murder based on a spurious allegation of aggravated assault, which, as alleged, constituted a 'cleverly disguised form of manslaughter' and is 'a lesser-included offense of manslaughter by any other name.' The panel reasoned that “[i]ntentional and knowing aggravated assault is not includable in manslaughter and is not a lesser-included offense of manslaughter.' And, relying on the Texas Court of Criminal Appeals’ opinion in Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001), it concluded that the trial court’s jury charge did not contain an invalid legal theory of felony murder. 
Id. at *2.

Justice Jennings simply eviserates the CCA's reasoning in Lawson, the CCA case cited and relied upon in the panel opinion to overrule the asserted charge error. He begins the gutting by explaining right up front that Lawson overruled to a better reasoned opinion by an earlier iteration of the CCA:
Writing for a unanimous Texas Court of Criminal Appeals, Judge Wendell Odom explained the intrinsic problem with allowing an aggravated assault that is 'inherent in the homicide' to serve as the predicate felony for a felony-murder conviction:
 To allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault.
Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App. 1978). The instant case proves Judge Odom’s point precisely.
Id. at *1.

After recitation of facts, Justice Jennings dives into the reasoning underlying Garrett:
To allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault. Such result has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide. 
Id. at *4 (quoting Garrett, 573 S.W.2d at 545). The reason? Justice Jennings again quotes Garrett:
Any other result in this case would allow circumvention of the statutory limits of the felony murder statute. . . . The legislature has provided that an individual is guilty of murder when death results from an act dangerous to human life committed in the course of a felony other than voluntary or involuntary manslaughter. Most voluntary manslaughter offenses are initiated as aggravated assaults. If a felony murder may be predicated on the underlying aggravated assault, the statutory restriction on the scope of the doctrine that prohibits basing a felony murder prosecution on voluntary manslaughter could be regularly circumvented. The legislative prohibition against resting a Sec. 19.02(a)(3) prosecution on voluntary manslaughter necessarily includes a prohibition against resting such a prosecution on offenses statutorily includable in voluntary manslaughter. To hold to the contrary would render the statute meaningless and its effect nil.
Id. at *5 (quoting Garrett at 545-46) (emphasis as placed in Esquivel).

Justice Jennings then traces what he describes as the CCA's "retreat" from Garrett, culminating in their opinion in Lawson. Justice Jennings may have to follow Lawson, but he does not hesitate in explicitly calling it bad law. He ends his concurring opinion:
In this case, the panel relies on Lawson in holding that the complained-of felony-murder application paragraph did not present the jury with an invalid theory of felony murder based on appellant’s aggravated assault with a deadly weapon that resulted in the complainant’s death. Although Lawson was wrongly decided and the holding of Garrett should be the law in Texas, the panel did not err in deciding this case in accord with Lawson. While I encourage the Texas Court of Criminal Appeals to overrule Lawson, we, until it is overruled, must accept it as binding precedent. 
Id. at *8. (emphasis added).

Holy smokes. I love it.

Just a couple of takeaways: If anyone reading this is handling a case involving a felony-murder case indicted under the same theory as in Esquivel, you should be filing a Motion to Quash and objecting at charge conference to the application paragraph of a charge that allows a jury to convict in this manner. Ineffective Assistance of Counsel was part of a Motion for New Trial filed in the case based on trial counsel failing to do these things. The panel opinion found no IAC because the law as the CCA found it in Lawson allowed the case to be indicted and submitted to the jury in the way it was.

Regardless of what the future holds regarding the upcoming Petition for Discretionary Review filing in Esquivel, we in the criminal defense bar should be calling out this method of charging felony-murder in the trial courts. It may be the law, but it should not be, and you cannot change the law unless the error is preserved.

Monday, January 15, 2018

MLK's Best Speech (Hint: Not "I Have a Dream")

Today, to commemorate the holiday named for him, most will be hearing, or reading, parts of Martin Luther King, Jr.'s "I have a Dream Speech." That speech is indeed inspiring, but it is not his best. That distinction belongs, in my opinion, to the speech he gave in Oslo, Norway to accept the Nobel Peace Prize on December 10, 1964. It is a stunning composition of which I have written before. I have underlined King's use of the rhetorical figures, including repetition, anthesis, and irony. Admire some, or all, of the 12 minute speech and witness how this most gifted of rhetorician uses his talents to make the text that follows become almost a living, breathing thing. 

Your Majesty, Your Royal Highness, Mr. President, Excellencies, Ladies and Gentlemen:
I accept the Nobel Prize for Peace at a moment when 22 million Negroes of the United States are engaged in a creative battle to end the long night of racial injustice. I accept this award on behalf of a civil rights movement which is moving with determination and a majestic scorn for risk and danger to establish a reign of freedom and a rule of justice. I am mindful that only yesterday in Birmingham, Alabama, our children, crying out for brotherhood, were answered with fire hoses, snarling dogs and even death. I am mindful that only yesterday in Philadelphia, Mississippi, young people seeking to secure the right to vote were brutalized and murdered. And only yesterday more than 40 houses of worship in the State of Mississippi alone were bombed or burned because they offered a sanctuary to those who would not accept segregation. I am mindful that debilitating and grinding poverty afflicts my people and chains them to the lowest rung of the economic ladder.
Therefore, I must ask why this prize is awarded to a movement which is beleaguered and committed to unrelenting struggle; to a movement which has not won the very peace and brotherhood which is the essence of the Nobel Prize.
After contemplation, I conclude that this award which I receive on behalf of that movement is a profound recognition that nonviolence is the answer to the crucial political and moral question of our time - the need for man to overcome oppression and violence without resorting to violence and oppression. Civilization and violence are antithetical concepts. Negroes of the United States, following the people of India, have demonstrated that nonviolence is not sterile passivity, but a powerful moral force which makes for social transformation. Sooner or later all the people of the world will have to discover a way to live together in peace, and thereby transform this pending cosmic elegy into a creative psalm of brotherhood. If this is to be achieved, man must evolve for all human conflict a method which rejects revenge, aggression and retaliation. The foundation of such a method is love.
The tortuous road which has led from Montgomery, Alabama to Oslo bears witness to this truth. This is a road over which millions of Negroes are travelling to find a new sense of dignity. This same road has opened for all Americans a new era of progress and hope. It has led to a new Civil Rights Bill, and it will, I am convinced, be widened and lengthened into a super highway of justice as Negro and white men in increasing numbers create alliances to overcome their common problems.
I accept this award today with an abiding faith in America and an audacious faith in the future of mankind. I refuse to accept despair as the final response to the ambiguities of history. I refuse to accept the idea that the "isness" of man's present nature makes him morally incapable of reaching up for the eternal "oughtness" that forever confronts him. I refuse to accept the idea that man is mere flotsom and jetsom in the river of life, unable to influence the unfolding events which surround him. I refuse to accept the view that mankind is so tragically bound to the starless midnight of racism and war that the bright daybreak of peace and brotherhood can never become a reality.
I refuse to accept the cynical notion that nation after nation must spiral down a militaristic stairway into the hell of thermonuclear destruction. I believe that unarmed truth and unconditional love will have the final word in reality. This is why right temporarily defeated is stronger than evil triumphant. I believe that even amid today's mortar bursts and whining bullets, there is still hope for a brighter tomorrow. I believe that wounded justice, lying prostrate on the blood-flowing streets of our nations, can be lifted from this dust of shame to reign supreme among the children of men. I have the audacity to believe that peoples everywhere can have three meals a day for their bodies, education and culture for their minds, and dignity, equality and freedom for their spirits. I believe that what self-centered men have torn down men other-centered can build up. I still believe that one day mankind will bow before the altars of God and be crowned triumphant over war and bloodshed, and nonviolent redemptive good will proclaim the rule of the land. "And the lion and the lamb shall lie down together and every man shall sit under his own vine and fig tree and none shall be afraid." I still believe that We Shall overcome!
This faith can give us courage to face the uncertainties of the future. It will give our tired feet new strength as we continue our forward stride toward the city of freedom. When our days become dreary with low-hovering clouds and our nights become darker than a thousand midnights, we will know that we are living in the creative turmoil of a genuine civilization struggling to be born.
Today I come to Oslo as a trustee, inspired and with renewed dedication to humanity. I accept this prize on behalf of all men who love peace and brotherhood. I say I come as a trustee, for in the depths of my heart I am aware that this prize is much more than an honor to me personally.
Every time I take a flight, I am always mindful of the many people who make a successful journey possible - the known pilots and the unknown ground crew.
So you honor the dedicated pilots of our struggle who have sat at the controls as the freedom movement soared into orbit. You honor, once again, Chief Lutuli of South Africa, whose struggles with and for his people, are still met with the most brutal expression of man's inhumanity to man. You honor the ground crew without whose labor and sacrifices the jet flights to freedom could never have left the earth. Most of these people will never make the headline and their names will not appear in Who's Who. Yet when years have rolled past and when the blazing light of truth is focused on this marvelous age in which we live - men and women will know and children will be taught that we have a finer land, a better people, a more noble civilization - because these humble children of God were willing to suffer for righteousness' sake.
I think Alfred Nobel would know what I mean when I say that I accept this award in the spirit of a curator of some precious heirloom which he holds in trust for its true owners - all those to whom beauty is truth and truth beauty - and in whose eyes the beauty of genuine brotherhood and peace is more precious than diamonds or silver or gold.

Sunday, January 14, 2018

When Habeas Can't Get Over The Moon

When the January 10, 2018 hand down list was issued from the Court of Criminal Appeals (CCA), I noted Judge Alcala dissented (in an opinion joined by Judge Walker - more on that later) in a habeas decision styled Ex parte Navarro. When Judge Alcala writes a dissenting opinion, it should be mandatory reading for any criminal defense lawyer, especially for those doing appeals or post-conviction habeas work.

The tragedy begins right after Christmas, 2007. Contemporary news coverage from the Houston Chronicle reported Miguel Angel Navarro, then just 15 years of age, was arrested for stabbing Matthew Haltom, 20, Joe Eodice, 22, and Joe Arnold, 21. Haltom was home from college on winter break, was having "bonfire" party at his parents home near I-10 (Katy Freeway) and Pin Oak Road, very close Katy Mills Mall. For various reasons, I am very familiar with that area.

I have no idea how Navarro ended up at that house that night, but as told in the briefing and the direct appeal, things got sideways when Haltom, with assistance from Eodice and Arnold decided the party had become too crowded and told uninvited guests - Navarro and several friends included - to leave. The stabbings occurred in the melee that followed. Navarro was taken into juvenile custody shortly thereafter.

Navarro was certified to stand trial as an adult after hearing in Fort Bend County Court at Law and subject matter jurisdiction transferred to felony District Court. Navarro was later tried and convicted of the Murder of Haltom and the Aggravated Assault of Eodice. He was acquitted on the Aggravated Assault charge involving the stabbing of Arnold. The jury then assessed a 99 year sentence on the Murder and a 20 year sentence on the Agg Assault - both maximums. The case was affirmed in a memorandum decision by the Houston First Court of Appeals.

Initial state habeas followed alleging ineffective assistance of trial counsel (IAC), specifically by trial counsel failing to preserve error on (i) the district court’s omission multiple assailants self-defense charge, and (ii) the unconstitutionality of the 99-year sentence under the 8th Amendment. Federal habeas followed, alleging the same grounds, but was stayed pending resolution of the subsequent state habeas filing the CCA decided January 10, 2018.

This subsequent habeas relief issue was whether the transferring juvenile court ran afoul of Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014), which requires a transferring court to "show it's work" with findings of fact and conclusion of law so as to allow a meaningful legal and factual sufficiency review by an appeals court of the transfer decision. Moon was decided after the Navarro's initial habeas proceeding, so he sought to justify the subsequent habeas under Article 11.07 Section (a)(1) of the Texas Code of Criminal Procedure, which provides:
(a) If a subsequent application for writ of habeas corpus is filed after final
disposition of an initial application challenging the same conviction, a court may
not consider the merits of or grant relief based on the subsequent application
unless the application contains sufficient specific facts establishing that:
 (1) the current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual or legal
basis for the claim was unavailable on the date the applicant filed the
previous applications[.]
Got that? No subsequent habeas filings unless the requirement of (a)(1) is met. Navarro's argument was Moon v. State changed the law and as a result, he should get new bite at the habeas apple. The habeas trial court agreed and recommended relief be granted, but the CCA said no. Their reasoning was that although Moon refined the law, it did not change it. Follow the logic here: Kent v. United States, 383 U.S. 541 (1966), requires trial courts specify the reasons for the transfer. Although Moon held mere recitation of the statutory reasons the transferring court were not sufficient to meet this requirement, Navarro could have reasonably formulated his first habeas claim based on Kent.

Foreseeably, Judge Alcala argued in her dissent Moon changed the law:
The significance of this Court’s holding in Moon is not that a transfer order must be
supported by sufficient reasons for the transfer. As the majority opinion observes, that basic principle was in place long before Moon was decided [Kent]. But, Moon announced a new rule governing the nature of the sufficiency analysis in this context—in particular, it required that,to be supported by sufficient evidence, a juvenile court’s transfer order must include case specific facts to support the particularized reasons for the transfer in that case. Moreover, Moon indicated that the absence of such specific facts would likely deprive a defendant of the opportunity for meaningful appellate review of the transfer order.
On State habeas, the merits of a subsequent filing may be reached only if the applicant makes a preliminary showing that the law is not just different, but so different it could not have been anticipated at the time of the original habeas filing. Ex parte Navarro illustrates how dauntingly technical that hurdle can be. Navarro was represented by an experienced criminal defense lawyer at initial State habeas, and now the CCA is basically saying they blew it by failing to make a claim based on the CCA's yet to be made decision in Moon. Layer on top of this fact the majority of State habeas claims are filed pro se because applicants are not entitled to court appointed lawyers at the State habeas stage. Further, on top on that, federal habeas relief is barred when the federal habeas claim was not presented to a State court first. Now you begin to understand how current State and Federal habeas review is systemically flawed.

Here are some of the side stories. Navarro's trial counsel is now the judge of the 400th District Court of Fort Bend County, and, according to KTRK television coverage, the first Latina to serve as a District Court Judge in Fort Bend County history. Navarro was, again, fortunate to have a lawyer represent him in his initial state habeas claim - he was not entitled to have one appointed - and the lawyer is someone I know and respect. But if the trial lawyer can be IAC, this first habeas lawyer cannot be so held - there is no right to effective assistance at the habeas stage. The subsequent habeas briefing for Navarro was done admirably by lawyers from the San Antonio office of the high dollar civil firm Akin, Gump Hauer and Feld LLP.

Three amicus briefs were filed supporting Navarro's position, and were referenced in the CCA opinion. One of the three amici was from a TDCJ offender named Jeff Leggett who is pulling a 99 year sentence from Tom Green County at the Darrington Unit in Rosharon for Aggravated Sexual Assault. Whatever his crimes, he writes a damn fine brief, better than the one filed by the Juvenile Law Center from Pennsylvania, which did not address the habeas bar issue.

Finally, Judge Scott Walker, who joined Judge Alcala's dissent has been a pleasant surprise on the CCA. He has, much more than Judge Mary Lou Keel, been resistant to the more government-centric judges on the CCA. I was a skeptical of Judge Walker before he took the CCA bench, but he has been moderate be any measure.

Wednesday, January 10, 2018

Zen and the Art of Motorcycle Fourth Amendment Maintenance

The Supreme Court of the United States (SCOTUS) heard oral argument (OA) Tuesday, January 9, 2018 in Collins v. Virginia. At issue is another 4th Amendment question related to curtilage to a home and motorized vehicles, in this case a motorcycle. A transcript of the OA is here.

In Collins, the driver of an orange and black Suzuki motorcycle with a "stretched out" back wheel eluded police after a chase. Based on credible information, the police went later to a home where they found a motorcycle matching the description of the Suzuki under a cover in the curtilage of the home. The 4th Amendment issue then is whether law enforcement can, without warrant, search or seize a (covered) vehicle parked within curtilage of a home.

A review of the OA reveals how easy it can be to mix 4th Amendment apples with oranges. Justice Breyer's complicated hypothetical and digression into exigent circumstances during OA is an example. The bright lines and policy issues are really plain: Under existing law, does the automobile exception to the 4th Amendment warrant requirement apply, or because the motorcycle was covered and within the home's curtilage, was the search (raising the cover to identify the motorcycle) a 4th Amendment violation?

The reason this issue is significant is highlighted from SCOTUS.blog correspondent Mark Walsh's coverage of OA. Justice Ginsberg, who seems to be gaining strength with age rather than losing it, asked the Virginia acting Solicitor General (SG) a good series of questions. They concerned whether a favorable decision for the State would essentially result in those people with garages being protected while persons of less financial means without garages or with carports would lose 4th Amendment privacy protections.

The SG's short answer was yes: “I guess what I would say is that the Fourth Amendment protects the same quality of privacy, but maybe not the same quantity of privacy for everyone.”  By this he means, to use  a couple of hypos from Chief Justice Roberts, that Jay Leno's vintage car collection, and that automobile jewel of Cameron's father's eye in "Ferris Bueller's Day Off" are safe. A car parked in an open carport of a family living in a double wide, not so much.

The real bottom line is this: The State's position is the 4th Amendment draws the bright line at the house. Collin's lawyer argued that automobile exception, first "discovered" in 1925 has grown far beyond it own original reason for existence, and is not applicable to a search of a home's curtilage, whether open or closed, and regardless of whether it contains a motorized vehicle or fixed object.