SEARCHING A VEHICLE I will discuss five of the most frequently WITHOUT A WARRANT encountered exceptions to the warrant The Carroll Doctrine requirement of the Fourth amendment, as those exceptions apply to searches of Bryan R. Lemons vehicles. In discussing each exception, the Senior Legal Instructor background, requirements, and scope of the search will be addressed. With regard The Federal Bureau of to the scope of the search, the articles will Investigations reports that 93 law focus on four specific areas: The enforcement officers were killed while passenger compartment of the vehicle; the engaged in traffic stops or pursuits during trunk of the vehicle; unlocked containers the period 1989 – 1998.1 During 1998 located in the vehicle; and locked alone, 9 law enforcement officers were containers located in the vehicle. The first killed and another 6,242 were assaulted article in this series will deal with during traffic stops or pursuits.2 searching a vehicle pursuant to consent. Fortunately, the Supreme Court has long Subsequent articles will deal with recognized the very real dangers faced by searching a vehicle incident to arrest; law enforcement officers who confront searching a vehicle under the mobile suspects located in vehicles.3 Further, the conveyance exception (Carroll Doctrine); Court has noted that “for the purposes of searching a vehicle as part of the inventory the Fourth Amendment, there is a process; and searching a vehicle during a constitutional difference between houses lawful Terry stop. and cars.”4 This “constitutional difference” can result in the warrantless BACKGROUND search of a vehicle being upheld under circumstances in which the search of a “It is well-settled that a valid home would not.5 search of a vehicle moving on a public highway may be had without a warrant, if A vehicle may be searched without probable cause for the search exists, i.e., a warrant in a variety of situations. In the facts sufficient to warrant a man of next few editions of the Quarterly Review, reasonable caution in the belief that an offense is being committed.”6 This exception was first established by the 1 Federal Bureau of Investigation, Uniform Crime Supreme Court in the 1925 case of Carroll Reports, “Law Enforcement Officers Killed and 7 Assaulted in 1998”, Table 19, Page 32 v. United States, and provides that, if a 2 Id. at Table 20, Page 33 and Table 40, Page 88 law enforcement officer has probable 3 See Michigan v. Long, 463 U.S. 1032, 1048 cause to believe that a vehicle has (1983)(Noting “danger presented to police officers evidence of a crime or contraband located in ‘traffic stops’ and automobile situations”); in it, a search of the vehicle may be Pennsylvania v. Mimms, 434 U.S. 106, 110 (1977)(Decision rested, in part, on the “inordinate conducted without first obtaining a risk confronting an officer as he approaches a warrant. There are two (2) separate and person seated in an automobile”); and Adams v. distinct rationales underlying this Williams, 407 U.S. 143, 148 n.3 (1972)(Citing a exception. First, the inherent mobility of study indicating that “approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile”) 6 Fernandez v. United States, 321 F.2d 283, 286- 4 Chambers v. Maroney, 399 U.S. 42, 52 (1970) 287 (9th Cir. 1963)(citations omitted) 5 Cardwell v. Lewis, 417 U.S. 583, 589 (1974) 7 267 U.S. 132 (1925) vehicles typically makes it impracticable REQUIREMENTS to require a warrant to search, in that “the vehicle can be quickly moved out of the There are two (2) requirements for locality or jurisdiction in which the a valid search under the mobile warrant must be sought.”8 As the conveyance exception. First, there must Supreme Court has consistently observed, be probable cause to believe that evidence the inherent mobility of vehicles “creates of a crime or contraband is located in the circumstances of such exigency that, as a vehicle to be searched. “Articulating practical necessity, rigorous enforcement precisely what ... ‘probable cause’ mean[s] of the warrant requirement is impossible.”9 is not possible.”12 Suffice it to say, For this reason, “searches of cars that are probable cause cannot be “readily, or even constantly movable may make the search usefully, reduced to a neat set of legal of a car without a warrant a reasonable one rules.”13 Instead, the Supreme Court has although the result might be the opposite found probable cause to exist “where the in a search of a home, a store, or other known facts and circumstances are fixed piece of property.”10 Second, an sufficient to warrant a man of reasonable individual’s reduced expectation of prudence in the belief that contraband or privacy in a vehicle supports allowing a evidence of a crime will be found.”14 In warrantless search based on probable essence, this simply means that before cause. conducting a warrantless search of a vehicle, a law enforcement officer should Automobiles, unlike have sufficient facts available to him so homes, are subjected to that if he attempted to obtain a warrant pervasive and continuing from a magistrate judge, he would be governmental regulation successful. As noted by the Supreme and controls, including Court in United States v. Ross:15 “[O]nly periodic inspection and the prior approval of the magistrate is licensing requirements. As waived; the search otherwise [must be an everyday occurrence, such] as the magistrate could authorize.”16 police stop and examine Thus, a search of a vehicle based upon vehicles when license probable cause “is not unreasonable if plates or inspections based on facts that would justify the stickers have expired, or if issuance of a warrant, even though a other violations, such as warrant had not actually been obtained.”17 exhaust fumes or excessive In determining whether probable cause noise, are noted, or if exists, courts utilize a “totality of the headlights or other safety circumstances” test.18 equipment are not in proper working order.11

12 Ornelas v. United States, 517 U.S. 690, 695 (1996) 13 Id. at 695-696 8 Id. at 153 14 Id. at 696 9 Opperman, 428 U.S. 364 at 267 15 United States v. Ross, 456 U.S. 798 (1982) 10 Cooper v. California, 386 U.S. 58, 59 16 Id. at 823 (1967)(citation omitted) 17 Id. at 809 11 Opperman, 428 U.S. at 368 18 Illinois v. Gates, 462 U.S. 213 230-231 (1983) Establishing probable cause to The second requirement for a valid search a vehicle may be accomplished in a search under the mobile conveyance variety of ways. For example, a law exception is that the vehicle be “readily enforcement officer may be able to mobile.” This does not mean that the establish probable cause based on a tip vehicle be moving at the time it is provided to him by a reliable confidential encountered, only that the vehicle be informant.19 Additionally, when a law capable of ready movement. Illustrative enforcement officer personally observes on this point is the Supreme Court’s evidence or contraband in plain view decision in California v. Carney.22 In inside a vehicle, probable cause can arise. Carney, law enforcement officers searched Additionally, the “plain smell” corollary to a motor home after establishing probable the plain view doctrine may allow a law cause that marijuana was located inside. enforcement officer to establish probable At the time of the search, the motor home cause based upon his or her sense of smell. was parked in a parking lot in downtown In United States v. Miller,20 law San Diego. Upon finding marijuana, the enforcement officers used both plain view defendant was arrested and later pled nolo and plain smell observations to justify the contendre to the charges against him. On warrantless search of the suspect’s vehicle. appeal, the California Supreme Court As stated by the Ninth Circuit: overturned the defendant’s conviction, finding that the mobile conveyance The police officers who exception did not apply in this case, in that arrived at the Elm Street “the expectations of privacy in a motor address detected a strong home are more like those in a dwelling smell of phylacetic acid, than in an automobile because the primary known to be used in the function of motor homes is not to provide manufacture of transportation but to ‘provide the occupant methamphetamine, with living quarters.’”23 emanating from Miller’s car. In addition, the The Supreme Court, however, officers observed a disagreed, finding the mobile conveyance handgun in plain view on exception applicable in this case. After the front floor and reviewing the bases for the exception, the laboratory equipment Court concluded: commonly used in the manufacture of When a vehicle is being methamphetamine on the used on the highways, or if backseat of Miller’s car. it is readily capable of such These plain view, plain use and is found stationary smell observations ... gave in a place not regularly the officers sufficient used for residential independent probable cause to search Miller’s car without a warrant.21 Harris, 958 F.2d 1304 (5th Cir.), cert. denied, 506 U.S. 898 (1992)(plain smell) and United States v. Anderson, 468 F.2d 1280 (10th Cir. 1972)(plain 19 Maryland v. Dyson, 527 U.S. 465 (1999) smell) 20 812 F.2d 1206 (9th Cir. 1987) 22 471 U.S. 386 (1985) 21 Id. at 1208-1209. See also United States v. 23 Id. at 389 (citation omitted) purposes – temporary or opportunity to obtain a warrant and failed otherwise – the two to do so, the search will still be valid if the justifications for the vehicle two requirements discussed above were exception come into play. present. In Maryland v. Dyson,26 a law First, the vehicle is enforcement officer received a tip from a obviously readily mobile by reliable confidential informant that the the turn of an ignition key, defendant would be returning to Maryland if not actually moving. later that day carrying drugs in a specific Second, there is a reduced vehicle with a specific license plate expectation of privacy number. This information gave the officer stemming from its use as a probable cause to search the vehicle. licensed motor vehicle Approximately, 14 hours later, the subject to a range of police defendant’s vehicle was stopped as it regulation inapplicable to a returned to Maryland. In upholding the fixed dwelling. At least in search, the Supreme Court cited to their these circumstances, the previous decisions in finding that “the overriding societal interests automobile exception does not have a in effective law separate exigency requirement: ‘If a car is enforcement justify an readily mobile and probable cause exists immediate search before to believe it contains contraband, the the vehicle and its Fourth Amendment ... permits the police occupants become to search the vehicle without more.’”27 unavailable.24 Second, once a law enforcement While the Supreme Court did not officer has probable cause to search a discuss the applicability of the mobile readily mobile vehicle, the search may be conveyance exception to a motor home conducted immediately or later at the that is “situated in a way or place that police station. “There is no requirement objectively indicates that it is being used that the warrantless search of a vehicle as a residence,”25 among the factors they occur contemporaneously with its lawful deemed relevant included the location of seizure.”28 In United States v. Johns,29 the the motor home; whether it was readily Supreme Court upheld the warrantless mobile or elevated on blocks; whether it search of three packages that had been was licensed; whether it was connected to seized from a vehicle three days earlier, utilities; and whether it had convenient noting that “the justification to conduct access to a public road. such a warrantless search does not vanish once the car has been immobilized.”30 Two additional matters regarding Nonetheless, law enforcement officers the mobile conveyance exception deserve must act “reasonably” and may not comment. First, there is no “exigency” “indefinitely retain possession of a vehicle required to conduct a warrantless vehicle search; all that is required is a mobile conveyance and probable cause. Thus, 26 527 U.S. 465 27 even if a law enforcement officer had the Id. at 466 28 United States v. Johns, 469 U.S. 478, 484 (1985)(citations omitted) 24 Id. at 392-393 (footnote omitted) 29 Id. 25 Id. at 394 n.3 30 Id. and its contents before they complete a search in a particular location, such as the vehicle search.”31 passenger compartment or trunk of the vehicle, the officers may search there SCOPE without a warrant. A law enforcement officer may also search locked or unlocked The scope of a search conducted containers located in the vehicle, if the pursuant to the mobile conveyance object of the search could be concealed exception was laid out by the Supreme inside. The rule on containers appears to Court in United States v. Ross. 32 There, be relatively straightforward. the Court stated: Nonetheless, the issue of searching containers located in a vehicle merits We hold that the scope of additional discussion. As one the warrantless search commentator has observed: authorized by [the mobile conveyance] exception is The Supreme Court has no broader and no narrower faced profound difficulties than a magistrate could when reviewing warrantless legitimately authorize by searches of closed warrant. If probable cause containers found in autos. justifies the search of a The Court has divided these lawfully stopped vehicle, it cases into two groups. In justifies the search of every the first group of cases, part of the vehicle and its police possess probable contents that may conceal cause to suspect that a the object of the search.33 closed container in a vehicle contains It should be remembered, however, incriminating evidence, but that probable cause to search does not lack probable cause to automatically entitle a law enforcement suspect that any other part officer to search every part of a vehicle. of the auto holds such For example, where there is probable evidence. In the second cause to believe that a vehicle contains group of cases, police have drugs, a search of the glove compartment probable cause to search would be permissible. Alternatively, if the entire auto and there is probable cause that the vehicle unexpectedly stumble upon contains a large stolen television, a search a closed container.34 of the glove compartment would be impermissible, in that the television could In the first group of cases, the not be concealed in that location. Any Supreme Court’s decision in California v. mobile conveyance search is necessarily Acevedo35 is controlling. In Acevedo, the limited by what it is the officers are police had probable cause that a container seeking in their search. In sum, if a search warrant could authorize the officers to 34 Steinberg, David E., The Drive Toward Warrantless Auto Searches: Suggestions From a 31 Id. at 487 Backseat Driver, 80 B.U.L.REV. 545, 550 32 Supra, note 10 (2000)(footnotes omitted) 33 Id. at 825 (emphasis added) 35 California v. Acevedo, 500 U.S. 565 (1991) placed in the trunk of a vehicle contained When this occurs, the officers may search marijuana. Believing they might lose the the container, whether locked or unlocked, evidence if they sought a search warrant, if what they are seeking could be the officers stopped the vehicle, opened concealed inside of it. As noted by the the trunk, and searched the container (a Supreme Court in Ross, supra: paper bag). Marijuana was found inside the bag. In finding the search of the paper The scope of a warrantless bag legal, the Supreme Court held that, search of an automobile ... when law enforcement officers have is not defined by the nature probable cause that a specific container of the container in which placed inside a vehicle has evidence of a contraband is secreted. crime or contraband located inside of it, Rather, it is defined by the they may search the container, locked or object of the search and the unlocked, under the mobile conveyance place in which there is exception. However, the probable cause probable cause to believe relating to the container does not support a that it may be found.37 general search of the vehicle. If the officers wish to search the entire vehicle, Further, the rule of Ross has been they must have some other justification to extended to include a passenger’s do so, such as consent or a search incident belongings. In Wyoming v. Houghton,38 to arrest. As stated by the Supreme Court: the Supreme Court noted that “neither Ross nor the historical evidence it relied In the case before us, the upon admits of a distinction among police had probable cause packages or containers based on to believe that the paper ownership.”39 Accordingly, “police bag in the automobile’s officers with probable cause to search a trunk contained marijuana. car may inspect passengers’ belongings That probable cause now found in the car capable of concealing the allows a warrantless search object of the search.”40 of the paper bag. The facts ... reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.36

In the second group of cases, law 37 enforcement officers have probable cause Ross, 456 U.S. at 824 38 526 U.S. 295 (1999) to search the entire vehicle and discover a 39 Id. at 302 closed container during their search. 40 Id. at 307

36 Id. at 579