Legal Digest The Motor Vehicle Exception By EDWARD HENDRIE, J.D.

here is a presumption that a search conducted under the authority of a T 1 search warrant is reasonable. Conversely, a search conducted without a search warrant is presumed unreasonable. 2 The presumption of unreasonable- ness can be rebutted through an applicable exception to the search warrant requirement. One of those exceptions is known as the motor vehicle exception. The U.S. Supreme © Scott Whittemore Court has ruled that if an officer has probable cause to believe and the fact that the mobility of items in the trunk, pursuant to that evidence or contraband is vehicles present an inherent standardized agency regula- located in a motor vehicle, he exigency. 4 tions; 7 or 4) search a motor may search the area of the In addition to the motor ve- vehicle upon the consent of the vehicle he reasonably believes hicle exception, there are other person who has the actual or contains that evidence without exceptions to the search warrant apparent authority and control a search warrant to the same requirement that allow an offi- over that vehicle. 8 While these degree as if he had a warrant. 3 cer to search all or part of a listed exceptions can be applied The scope of the search is motor vehicle. Those exceptions to motor vehicles, they are not limited only by what the officer allow officers to 1) search the limited in their application to has probable cause to search for passenger compartment (but not motor vehicles, as is the motor and may encompass the entire the trunk) of a suspect’s vehicle vehicle exception. vehicle, including the trunk. incident to his arrest; 5 2) frisk The motor vehicle exception is the passenger compartment (but Probable Cause based upon the reduced expec- not the trunk) of an automobile To search under the motor tation of privacy that citizens for weapons upon reasonable vehicle exception, an officer have in their motor vehicles suspicion that a weapon may must have probable cause. The because of the pervasive regula- be there; 6 3) inventory an im- Supreme Court has stated that tion to which they are subjected pounded vehicle, including “probable cause is a fluid

22 / FBI Law Enforcement Bulletin concept—turning on the assess- warrantless search of the ve- being transported in the ment of probabilities in particu- hicle and found illegal liquor automobile which they 13 lar factual contexts—not read- hidden beneath the upholstery stopped and searched. ily, or even usefully, reduced to of the seats. The U.S. Supreme 14 9 In Chambers v. Maroney , a neat set of legal rules.” Prob- Court approved of the warrant- a service station was robbed by able cause is not a “one size fits less motor vehicle search in two armed men. At about the all” standard. In fact, probable Carroll because the agents had time of the robbery, two teenag- cause is a range that occupies a probable cause. 10 ers noticed a blue station wagon zone that is assessed under the One of the often-overlooked 11 circling the block in the vicinity totality of the circumstances. but rather significant findings of the gas station and later The seminal motor vehicle by the U.S. Supreme Court in speed away with four people exception case is Carroll v. Carroll was that the probable 12 inside, one of whom was wear- United States . The Carroll cause in that case was clear. The ing a green sweater. The station decision illustrates just how low U.S. Supreme Court stated: attendant recounted that one of the probable cause standard is [I]t is clear the officers here the robbers was wearing a green when conducting a warrantless had justification for the sweater and the other was search under the motor vehicle search and seizure. This wearing a trench coat. A de- exception. In Carroll , federal is to say that the facts and scription of the car and robbers prohibition agents acting under- circumstances within their was broadcast over the police cover had negotiated for the knowledge and of which radio. Within an hour, a light purchase of illegal whiskey in they had reasonably trust- blue compact station wagon Grand Rapids from the two worthy information were carrying four men was stopped defendants, Kiro and Carroll. sufficient in themselves to by the police approximately 2 The sale was never consum- warrant a man of reasonable miles from the gas station. One mated. Approximately 1 week caution in the belief that of the passengers was wearing later, the agents saw Kiro and intoxicating liquor was a green sweater, and there was Carroll traveling toward Detroit in the same car they used to drive to the undercover negotia- tions. More than 2 months later, the agents once again saw the defendants driving in the same automobile from the Detroit “ To search under area toward Grand Rapids. The the motor vehicle agents knew that at the time, the exception, Detroit area was an active an officer must center for bringing illegal liquor have probable into the United States. Believ- cause. ing that Kiro and Carroll were smuggling a load of illegal liquor from Detroit to Grand Rapids, the agents stopped the Special Agent Hendrie, DEA Legal Section, is a legal” instructor at the DEA Training Academy. vehicle. The agents conducted a

August 2005 / 23 a trench coat in the car. The In the more usual case, an presence of the drugs in the pas- occupants of the car were officer would be in a situation senger compartment. The same arrested. The money, guns, and where he has found contraband inference can be drawn from other incriminating evidence or other evidence of a crime in finding a gun in the passenger from the robbery were found the passenger compartment of a compartment of the vehicle. A inside the car during a later vehicle. In such a case, it would gun found in the passenger warrantless vehicle search be reasonable for the officer to compartment of a motor vehicle conducted at the station. The believe that other contraband or would support an inference that U.S. Supreme Court found that evidence could also be in the other weapons, ammunition, or there was probable cause to trunk of the vehicle. 16 For contraband could be in the trunk arrest the suspects and probable example, in Commonwealth v. of that vehicle. 18 cause to search the vehicle. Moses, 17 the Supreme Court of The Court approved of the later Massachusetts ruled that drugs Personal-Use vehicle search under the motor and a gun found in the passen- Amount of Drugs vehicle exception. ger compartment of a vehicle It should be noted that some courts are of the view that the Scope of the Search presence of a personal-use The scope of a search under amount of drugs in the passen- the motor vehicle exception ger compartment of a motor is limited to the areas in the The Court approved vehicle would only give the vehicle where the evidence or of the later vehicle officer probable cause to search contraband could reasonably be search under the passenger compartment but located. For instance, suppose “the motor vehicle not the trunk. For example, in an officer has probable cause to Wimberly v. Superior Court believe that a suspect is carrying exception. of San Bernardino County 19 a suitcase full of illegal drugs, officers stopped a motorist for and the officer sees the suspect driving erratically. The officers hail a cab and put the suitcase approached the stopped vehicle in the trunk of the cab. If the during a frisk for weapons gave and saw a smoking pipe next suspect is detained by the an officer probable cause to to12 round seeds on the floor officer before he gets in the cab, believe that more drugs or of the vehicle. The officers the officer would have probable weapons could be in the trunk.” smelled the odor of burnt cause to believe that the drugs Ordinarily, an officer would not marijuana emanating from are in the suitcase put in the be permitted to search the trunk inside the car, and upon exam- trunk but not anywhere else in while frisking the automobile ining the pipe, they found burnt the cab. Under the motor ve- for weapons. However, once the marijuana residue in the pipe hicle exception, therefore, the drugs were found in the passen- bowl. The officers searched the officer would only have author- ger compartment of the vehicle interior of the car and found a ity to search the trunk because during the initial frisk, the plastic bag containing a small he would lack probable cause search of the trunk was permit- quantity of marijuana in the to believe that any contraband ted under the motor vehicle pocket of a coat. The officers or evidence would be found exception based upon the prob- used the car keys to open the elsewhere in the taxicab. 15 able cause arising from the trunk of the car where they

24 / FBI Law Enforcement Bulletin found several pounds of mari- motorist for failing to display information that he was a juana and hashish in a suitcase a front license on his vehicle. marijuana user and that there in the trunk. The California When the defendant rolled was not sufficient evidence to Supreme Court ruled that the down the window of the ve- establish probable cause that officers had probable cause to hicle, the officer noticed a there would be more drugs in search the passenger compart- strong odor of burnt marijuana. the trunk of the vehicle. The ment of the vehicle upon ob- The driver produced a tempo- U.S. Court of Appeals for the serving the marijuana seeds in rary registration but could not District of Columbia Circuit close proximity to the smoking produce a driver’s license. The disagreed with the defendant’s pipe on the floor of the vehicle. officer saw torn pieces of cigar argument and ruled that there The court, however, also ruled tobacco in the defendant’s lap was probable cause to believe that the erratic driving, the and on the floor at his feet. The that the defendant would have observation of the marijuana officer knew that marijuana additional drugs in his trunk. seeds adjacent to the smoking users often hollow out cigars Odor of Marijuana pipe, the odor of burnt mari- © Mark C. Ide juana, the burnt residue in the In Turner, the officer no- pipe, and the small quantity of ticed the smell of burnt mari- marijuana secreted in the jacket juana, but there was also other indicated only that the defen- evidence of marijuana use by dants were casual users of the driver that gave the officer marijuana. The court deter- probable cause to search the mined that it was not reason- trunk. The smell of burnt able for the officer to infer that marijuana emanating from the casual drug users would have passenger compartment of a additional contraband hidden vehicle in and of itself is usually in the trunk. Because the court sufficient to establish probable found that the officers did not cause to search the passenger have probable cause to search compartment for the source of 22 the trunk, the court suppressed the odor. However, the odor of the evidence found in the trunk. and use them as a receptacle for burnt marijuana alone is gener- The Wimberly decision smoking marijuana. The officer ally not viewed by the courts as represents a minority of courts. also observed on the floor sufficient to establish probable In most courts, if there is physi- directly behind the driver’s seat cause to search the trunk of a 23 cal evidence of drugs found in a clear plastic bag of green vehicle. the passenger compartment of weed-like material, which he For example, in United 24 the vehicle, even if it is only a believed to be marijuana. The States v. Nielsen , an officer personal-use amount, that will officer asked for the keys to the pulled over the defendant for be sufficient to establish prob- car, which he used to open the speeding and subsequently able cause that more drugs trunk. The officer searched the smelled the odor of burnt could be found in the trunk of trunk where he found $825 in marijuana coming from the 20 that vehicle. For example, in small bills and a 62-gram chunk open window of the defendant’s 21 United States v. Turner , a U.S. of cocaine base. The defendant vehicle. The officer obtained Park Police officer stopped a argued that the officer only had consent to search the passenger

August 2005 / 25 compartment of the vehicle but would not require corroboration opening the trunk they found found nothing there that could to establish probable cause to an unspecified number of have been the source of the search the trunk of a vehicle. 26 marijuana plants. marijuana odor. A criminal The corroboration of the The driver was found guilty record check revealed that the marijuana odor does not have of drug trafficking under state driver had been arrested for a to be in the form of physical law, and he appealed his con- misdemeanor marijuana offense evidence. In State v. Ireland ,27 viction. The defendant argued approximately 15 years earlier. officers pulled over the defen- that because the detection of the The officer then removed the dant because he was driving marijuana odor in the passenger keys from the ignition and with his headlights off. The compartment was not supported opened the trunk of the vehicle. officers ultimately determined by any corroborating evidence Inside the trunk, the officer that the driver was driving on a of the presence of marijuana, found approximately 2 kilo- suspended license. The officers there was not probable cause to grams of cocaine. The U.S. arrested the driver and searched search the trunk of the vehicle. Court of Appeals for the Tenth the vehicle incident to his arrest. The Supreme Court of Maine Circuit ruled that the odor of the ruled that the odor of marijuana marijuana alone was not suffi- was corroborated by the furtive cient to establish probable cause behavior of the owner of the to search the trunk of the motor vehicle in denying that she had vehicle. a key to the trunk when, in fact, The Nielsen court was The corroboration there was a key readily available concerned with the credibility of the marijuana in the passenger compartment of the uncorroborated detection odor does not of the vehicle. Her false state- “ have to be by an officer of the mere odor ment suggested that more of burnt marijuana in a motor in the form of marijuana would be found in vehicle. The Nielsen court physical evidence. the trunk of the vehicle. stated, and most courts agree, The above cases deal with that if there is evidence that the issue of the odor of burnt corroborates the odor of burnt marijuana. When, however, the marijuana, the corroborated odor detected by the officer is odor would be sufficient to As they searched the vehicle, the odor of fresh, unburned establish probable cause to they detected a burnt marijuana marijuana, courts have not search the vehicle’s trunk. The smell under the driver’s seat. required additional evidence to corroboration could be as sim- There was a passenger in ”the car corroborate the presence of the ple as finding a marijuana cig- who indicated that she owned marijuana before an officer may arette in the car or in the posses- the car. One of the officers search the trunk of the vehicle. 28 sion of the driver. 25 The Nielsen asked the owner if there was court distinguished between the anything in the trunk. She Motor Vehicle detection of the smell of mari- responded that there was noth- The term motor vehicle for juana by an officer and the ing in the trunk and that she had purposes of the motor vehicle detection of drugs by a trained no key available to open the exception is a term of art, which drug-sniffing dog. The court trunk. The officers in due time has not been limited to ordinary stated that a drug dog with a found the trunk key inside the automobiles. In California v. good track record for reliability passenger compartment. Upon Carney ,29 the U.S. Supreme

26 / FBI Law Enforcement Bulletin Court applied the motor vehicle The defendant pleaded nolo public highways, motor homes exception to a motor home. In contendere to the drug charges, are subject to pervasive regula- Carney , a DEA agent received and he was placed on probation. tion. The Court stated that uncorroborated information that He appealed the order placing simply because the vehicle in a motor home was being used him on probation. The Califor- this case was a motor home did by someone to exchange mari- nia Supreme Court reversed not mean that it was not subject juana for sex. Several DEA his conviction, holding that to a warrantless search under 30 agents set up surveillance in the expectation of privacy in the motor vehicle exception. the area of the motor home in a motor home was more like The Court stated: downtown San Diego and a dwelling and, therefore, the To distinguish between watched as the defendant search without a search warrant respondent’s motor home approached a youth. The youth did not fall within the motor and an ordinary sedan for accompanied the defendant to vehicle exception. purposes of the vehicle ex- his motor home parked in a © Mark C. Ide ception would require that nearby parking lot. The agents we apply the exception de- observed the defendant and the pending upon the size of the youth close the window shades vehicle and quality of its ap- on the motor home. The agents pointments.... We declined kept the motor home under today to distinguish between surveillance for 1 hour and 15 “worthy” and “unworthy” minutes until the youth exited vehicles which are either on the motor home. The agents the public roads and high- stopped the youth and talked ways, or situated such that with him, at which time, the it is reasonable to conclude youth admitted that he had that the vehicle is not being 31 received marijuana in return for used as a residence. sex. The youth agreed to return with the agents to the motor The Court, however, made home and knock on its door. The U.S. Supreme Court a distinction between a readily When the defendant stepped out reversed the judgment of the mobile motor home parked in a of the motor home, the agents California Supreme Court and public parking lot and a motor home that is being used as a identified themselves as law ruled that the search of the 32 enforcement officers. One of the motor home was reasonable residence at a campsite. agents entered the motor home under the Fourth Amendment We need not pass on the and observed marijuana, plastic because the motor home was a application of the vehicle bags, and a scale of the kind readily movable motor vehicle exception to a motor home used to weigh drugs. The and the expectation of privacy that is situated in a way defendant was arrested, and the in a motor vehicle is signifi- or place that objectively agents impounded the motor cantly less than in a home or indicates that it is being home. A subsequent search of office. The reduced expectation used as a residence. Among the motor home at the police of privacy in the motor home the factors that might be station revealed additional was due, in part, to the fact that, relevant in determining marijuana in the cupboards and like all automobiles that are whether a warrant would refrigerator. capable of traveling on the be required in such a

August 2005 / 27 circumstance is its location, allowed under their state consti- on an interstate highway to whether the vehicle is tutions. In that regard, some Maryland. The officers waited readily mobile or instead, state courts have limited the the 13 hours for the defendant for instance, elevated on application of the motor vehicle to drive past them on the high- blocks, whether the vehicle exception under their state way before stopping his vehicle is licensed, whether it is constitutions to circumstances and conducting a warrantless connected to utilities, and when there is a separate emer- search of the vehicle for the whether it has convenient gency. 43 Those state courts re- drugs. Upon searching the access to a public road. 33 quire some showing by the state vehicle, the officers found the In addition to automobiles and that the exigencies of the cir- bag of crack cocaine for which motor homes, courts have cumstances made it impracti- they were looking. There was applied the motor vehicle cable for the police to obtain no exigency in the case. The exception to trucks, 34 trailers 35 a search warrant before they officers had ample time to pulled by trucks, boats, 36 house obtain a search warrant during boats, 37 airplanes, 38 and even the 13-hour wait. The U.S. the sleeping compartments of Supreme Court, nevertheless, trains. 39 determined that the stop and Most state courts, search of the vehicle was valid Emergency however, follow the under the motor vehicle excep- The ready mobility of a federal rule and tion because the motor vehicle vehicle is viewed by the U.S. “do not require exception does not require a Supreme Court as an inherent an emergency when separate exigency to justify a exigency that is always present applying the motor vehicle search. when conducting a motor vehicle exception. Dyson was a case where vehicle search. 40 The federal the officers had plenty of time rule is that it is not required that before seizing the car to get a there be an additional separate warrant. What if officers law- emergency for the application of fully seize a car and have ample the motor vehicle exception. In searched the car. Most state opportunity to obtain a warrant Pennsylvania v. Labron, 41 the courts, however, follow the after the seizure? In the previ- U.S. Supreme Court explained, federal rule and do not require ously discussed case of Cham- “If a car is readily mobile and an emergency when applying” bers v. Maroney ,46 the police probable cause exists to believe the motor vehicle exception. 44 had the vehicle secured and it contains contraband, the The nonemergency applica- clearly had an opportunity to Fourth Amendment thus per- tion of the motor vehicle excep- obtain a search warrant. The mits police to search the vehicle tion is best illustrated by the U.S. Supreme Court ruled that without more.” 42 U.S. Supreme Court case of it was lawful for the police to States, however, are free Maryland v. Dyson. 45 In Dyson , search the motor vehicle at the to be more restrictive of police Maryland police officers had station house after the vehicle conduct as a matter of state law. probable cause and 13 hours was seized. With the vehicle In some states, police conduct advance notice that the defen- in police custody, there was that is permitted under the dant would be driving a vehicle no risk that the vehicle or its U.S. Constitution may not be containing crack cocaine north contents would disappear. The

28 / FBI Law Enforcement Bulletin U.S. Supreme Court, nonethe- required to obtain a search officer was a valid search under less, ruled that it was not neces- warrant to search a vehicle the motor vehicle exception, sary to obtain a search warrant under the motor vehicle excep- even though the vehicle had to search the vehicle. 47 tion, even when the vehicle is already been subjected to an In Texas v. White ,48 officers impounded and they have time inventory search and was arrested a suspect who had to get a search warrant. impounded. 50 attempted to pass a fraudulent What if a vehicle is in police check at a bank. An officer was custody and has already been Containers in Vehicles called and, upon his arrival at subjected to an inventory search The motor vehicle exception the scene, directed the defen- pursuant to standardized police permits officers to search not dant to park his vehicle. At that regulations? Can the police only the vehicle and trunk but point, the officer and one of the return to that vehicle later and also any containers in the bank employees saw the suspect search it again without a war- vehicle that could contain the stuffing something between the rant for evidence or contraband? evidence or contraband that is seats of his car. Ultimately, the the object of the search. 51 Fur- police arrested the suspect, © Mark C. Ide thermore, the scope of a war- seized his car, and drove him rantless search of an automobile and his car to the station house. is not defined by the nature of After bringing the suspect to the container in which the the station house, the officers contraband is secreted. Rather, requested consent to search his it is defined by the object of the automobile, but the defendant search and the places in which refused. The officers then there is probable cause to searched the automobile any- believe it may be found. way and discovered four If officers have probable wrinkled fraudulent checks that cause to search a lawfully corresponded to the checks that stopped vehicle, they are justi- he had attempted to pass earlier fied under the motor vehicle at a bank. The defendant was exception in searching any part convicted for attempting to pass of the vehicle in which the a forged instrument, but his In Florida v. Myers ,49 the object of the search may be conviction was overturned by defendant was arrested and his located, including containers the Texas Court of Criminal automobile was inventoried, inside the vehicle. It does not Appeals. The Texas court ruled seized, and secured in a locked matter who owns the item that that the search that turned up impound lot. Approximately is to be searched. In Wyoming v. the checks was unlawful be- 8 hours later, a police officer Houghton ,52 the U.S. Supreme cause the police failed to obtain who had probable cause that the Court approved of an officer a search warrant as required by vehicle contained evidence or searching a purse found in the the Fourth Amendment. contraband went to the impound passenger compartment of an The U.S. Supreme Court lot and searched the car a automobile. The vehicle search overturned the Texas court’s second time without a warrant. was based on evidence that the decision. The Supreme Court The U.S. Supreme Court ruled driver had drug paraphernalia ruled that the officers were not that the second search by the on his person and admitted he

August 2005 / 29 was a drug user. The officer was when they were seized from the conducted without a search told that the purse belonged to a motor vehicle and could have warrant are presumed unreason- female passenger and not the searched them at that time. The able. Officers should always driver before he searched it. Court reasoned “Inasmuch as consider the benefits of the When the officer searched the the government was entitled to presumption of reasonableness purse, he found drugs and drug seize the packages and could that accompanies a search under paraphernalia inside it. The have searched them immedi- the authority of a search war- U.S. Supreme Court upheld the ately without a warrant, we rant. There are, however, well- search, ruling that the owner- conclude that the warrantless recognized exceptions to the ship of an object found and search 3 days after the pack- search warrant requirement that searched in the vehicle is ages were placed in the DEA can rebut the presumption of irrelevant to the legitimacy warehouse was reasonable and unreasonableness; one is the of the motor vehicle search. consistent with our precedent motor vehicle exception. If an Because the general rule is officer has probable cause to that the motor vehicle exception believe that evidence or con- does not require that there be an traband is located in a motor emergency, the search of the vehicle, the officer may search motor vehicle could be hours Probable cause the vehicle without a warrant to and even days after the vehicle depends on the the same degree as if he had a is seized. If packages are taken totality of the search warrant. Probable cause from a motor vehicle, those “circumstances. depends on the totality of the packages would also be subject circumstances. If an officer has to a warrantless search under sufficient evidence to establish the motor vehicle exception probable cause for a search long after they have been taken warrant, then he would have from the vehicle. For example, involving searches of im- sufficient facts to search a United States v. Johns 53 55 in , the pounded vehicles.” The Johns motor vehicle without a search U.S. Supreme Court ruled that court held out the possibility warrant. DEA agents acted lawfully that in a given case, a delay” in Courts have applied the when they conducted warrant- searching a package taken from motor vehicle exception to less searches of packages 3 days a motor vehicle could perhaps automobiles, trucks, trailers after they took the packages be unreasonable, but the defen- pulled by trucks, motor homes, from a motor vehicle. The later dants in the case before the boats, house boats, airplanes, warrantless searches were Court did not present any facts and even the sleeping compart- lawful, even though the pack- that established that the delay ments of trains. The federal rule ages were securely in DEA adversely affected their Fourth followed by most states is that 56 custody and the agents had Amendment rights. if an officer has probable cause ample opportunity to obtain a that there is evidence or contra- 54 Conclusion search warrant. The Court band in a motor vehicle, it is ruled that the later package Searches conducted under not required that the officer be searches were reasonable the authority of a search warrant faced with an emergency for because the agents had probable are presumed to be reasonable. him to conduct a warrantless cause to search the packages On the contrary, searches search of the vehicle.

30 / FBI Law Enforcement Bulletin Endnotes scenario. Usually, the issue is whether there is 20 E.g., United States v. Burnett , 791 F.2d 1 See generally United States v. Leon , 468 sufficient cause to search the trunk after having 64, 65 (6th Cir. 1986). U.S. 897, 922 (1984); Franks v. Delaware , 438 found drugs in the passenger compartment. In a 21 119 F.3d 18 (D.C. Cir. 1997). U.S. 154 (1978). case where drugs are found in the trunk, an 22 United States v. Staula , 80 F.3d 596, 602 2 Mincey v. Arizona , 437 U.S. 385 (1978). officer would have probable cause to arrest the (1st Cir. 1996) (odor of burnt marijuana gave 3 C arroll v. United States, 267 U.S. 132 driver and then be able to search the passenger officer probable cause to search passenger (1925). In Carroll , the searching agent started compartment of the vehicle incident to arrest compartment of truck). to open up the back cushion to the rumble seat under New York v. Belton , 453 U.S. 454 (1981). 23 See, e.g., State v. Schmeakeka , 38 P.2d on a roadster where illegal liquor was hidden 16 See United States v. Brown , 374 F.3d 633, 637-38 (Idaho App. 2001). Contra, People and in the process “did tear the cushion some.” 1326 (D.C. Cir. 2004) (false identification and v. Kazmierczak , 605 N.W.2d 667 (Mich. 2000). 267 U.S. at 172 (McReynolds, J., dissenting). stolen credit card found in passenger compart- “[T]he smell of burned, burning, and unburned See also California v. Acevedo, 500 U.S. 565 ment gave officer probable cause to search marijuana, when immediately apparent, are (1991). trunk); Whiting v. State , 725 A.2d 623 (Md. equally incriminating.” Id. at 675 n.13. 4 Pennsylvania v. Labron , 518 U.S. 938, App. 1998) (officer had probable cause to 24 9 F.3d 1487 (10th Cir. 1993). 940 (1996) (per curiam); California v. Carney , search trunk after gun and crack cocaine smok- 25 See United States v. Parker , 72 F.3d 1444 471 U.S. 386, 391-92 (1985). ing pipe were found in passenger compartment (10th Cir. 1995) (a rolled-up dollar bill with a 5 New York v. Belton , 453 U.S. 454 (1981). of car); United States v. Watson , 697 A.2d 36 white powder residue and a marijuana cigarette 6 Michigan v. Long , 463 U.S. 1032 (1983). (D.C. App. 1997) (marijuana cigarette and found on the driver were sufficient to corrob- 7 Florida v. Wells , 495 U.S. 1 (1990). white powder in six plastic bags banded orate the odor of marijuana and give probable 8 Florida v. Jimeno, 500 U.S. 248, 252 together found in passenger compartment gave cause to search the trunk); State v. Betz , 815 (1991) (In dicta the Court disapproved of probable cause to search vehicle trunk). So.2d 627 (Fla. 2002) (officer had probable prying open a locked briefcase pursuant to a cause to search trunk where he detected odor of consent search of a car trunk. In the holding, © Mark C. Ide marijuana emanating from the car; the driver however, the Court approved of the police was found to be in possession of marijuana; opening a paper bag found in a car trunk during and the driver was nervous and jittery). a consent search.). See generally United States 26 See also United States v. Ludwig , 10 F.3d v. Drayton , 536 U.S. 194 (2002); Illinois. v. 1523, 1527-28 (10th Cir. 1993) (dog alert Rodriguez , 497 U.S. 177 (1990); United States established probable cause to search trunk). v. Matlock , 415 U.S. 164 (1974); Schneckloth Cf. United States v. Williams, 69 F.3d 27, 28 v. Bustamonte , 412 U.S. 218 (1973); Bumper v. (5th Cir. 1995). North Carolina , 391 U.S. 543 (1968). 27 706 A.2d 597 (Me. 1998). 9 Illinois v. Gates , 462 U.S. 213, 232 28 State v. Wright , 977 P.2d 505, 507-08 (1983). (Utah App. 1999); United States v. Downs , 10 Llaguno v. Mingey, 763 F.2d 1560 (7th 151 F.3d 1301 (10th Cir. 1998). Cf. People v. Cir. 1985) (en banc) (plurality opinion), Kazmierczak , 605 N.W.2d 667 (Mich. 2000) abrogated in part on other grounds by County (The odor of unburnt marijuana alone was of Riverside v. McLaughlin , 500 U.S. 44 sufficient to establish probable cause to search (1991). the trunk. Although the officer smelled the 11 Illinois v. Gates, 462 U.S. 213 (1983). odor of unburnt marijuana, the court ruled that 12 267 U.S. 132 (1925). whether the odor is of burnt or unburnt 13 267 U.S. at 162. 17 557 N.E.2d 14, 19 (Mass. 1990). “Once marijuana makes no difference in establishing 14 399 U.S. 42 (1970). the officers discovered the cocaine and the probable cause to search the trunk.). In State v. 15 See California v. Acevedo , 500 U.S. 565, handgun pursuant to the protective search, Guerra , 459 A.2d 1159 (N.J. 1983), an officer 579-80 (1991) (quoting United States v. Ross , they had probable cause to search the entire detected the odor of fresh marijuana during a 456 U.S. 798, 824 (1982)). The mere fact that automobile, including the passenger compart- traffic stop on the New Jersey Turnpike. an unknown suspect has put drugs in the trunk ment and the trunk, for contraband and Ultimately, the officer searched the trunk and of a car, without more, may not be sufficient to weapons.” Id. found 176.5 pounds of marijuana. The Supreme establish probable cause that drugs would be 18 See, e.g., United States v. Brown , 334 Court of New Jersey ruled that the odor of fresh elsewhere in the car. Acevedo , supra . On the F.3d 1161, 1171 (D.C. Cir. 2003) (gun found marijuana alone was sufficient to give the other hand, additional facts known to an officer in car next to suspect, who was “tickling the officer probable cause to search the trunk. may change the result. For instance, if the handle,” after multiple gunshots were fired in 29 471 U.S. 386 (1985). suspect gets in his vehicle after putting the the vicinity gave probable cause to search the 30 If, however, a camper trailer is unhitched drugs in his trunk and an officer has informa- trunk for more weapons or amunition). and not readily mobile, then it would not be tion the vehicle is regularly used by the suspect 19 547 P.2d 417 (Cal. 1976). See also considered a motor vehicle for purposes of the to traffic in illegal drugs, arguably, an officer Burkett v. State , 607 S.W.2d 399 (Ark. 1980) motor vehicle exception. State v. Durbin , 489 could reasonably believe that the passenger (roach clip and marijuana cigarette butt in the N.W.2d 655 (Wis. App. 1992). See also State v. compartment may contain more illegal drugs or ashtray do not establish probable cause to Kypreos , 61 P.3d 352, 357 (Wash. App. 2002). drug records. This is the reverse of the typical search the trunk). 31 471 U.S. at 393-94.

August 2005 / 31 32 See United States v. Adams , 845 F. Supp. 39 United States v. Tartiglia, 864 F.2d 837, People v. Blasich , 541 N.E.2d 40 (N.Y. 1989) 1531, 1536-37 (M.D.Fla. 1994), wherein the 841-43 (D.C. Cir. 1989); United States v. (“The justifications for a warrantless search court held that the motor vehicle exception did Whitehead , 849 F.2d 849, 854 (4th Cir. 1988). conducted upon probable cause pursuant to the not apply to a motor home that was being used 40 Pennsylvania v. Labron , 518 U.S. 938 automobile exception do not dissipate merely as a temporary residence. The motor home (1996) (per curiam). because the vehicle has been placed in the contained food, clothing, and other personal 41 518 U.S. 938 (1996) (per curiam). control of the police...and the exception is effects; was hooked to an electric generator; and 42 Id . at 940. equally applicable whether the search is was located in a rural area on a private wooded 43 State v. Elison , 14 P.3d 456 (Mont. 2000) conducted at the time and place where the lot owned by the defendants, from which there (“We have consistently reaffirmed the automobile was stopped or whether, instead, was no convenient or easy access to a public requirement that, in order to justify a warrant- the vehicle is impounded and searched after road. In addition, the defendants used other less search of an automobile, the State must removal to the police station.”). vehicles located on the property for transporta- show exigent circumstances under which it was 45 527 U.S. 465 (1999). tion. See also Unites States v. Matteucci , 842 F. not practicable to obtain a warrant.”); State v. 46 399 U.S. 42 (1970). Supp. 442, 449 (D. Or. 1994), wherein the Gomez , 932 P.2d 1 (N.M. 1997) (“a warrantless 47 399 U.S. at 52. court did not allow a search of a motor home search of an automobile and its contents 48 423 U.S. 67 (1975) (per curiam). under the motor vehicle exception because it requires a particularized showing of exigent 49 466 U.S. 380 (1984) (per curiam). was being used in a state park as a residence. circumstances”); State v. Cooke , 751 A.2d 92 50 See also Michigan v. Thomas , 458 U.S. The motor home was snowed in at the park, and (N.J. 2000) (“The automobile exception applies 259 (1982) (per curiam). in order for the defendants to get to a public only in cases in which probable cause and 51 United States v. Ross , 456 U.S. 798 road, they would have to drive the motor home exigent circumstances are evident, making it (1982). down a steep hill and travel several miles in the impracticable for the police to obtain a 52 526 U.S. 295 (1999). park. Furthermore, one of the defendants told warrant.”); State v. Harnisch , 954 P.2d 1180 53 469 U.S. 478 (1985). the officer prior to his search of the motor home (Nev. 1998) (“[T]he Nevada Constitution 54 See also United States v. Albers , 136 F.3d that the motor home was used as their home requires both probable cause and exigent 670 (9th Cir. 1997), wherein the U.S. Court of because they had been “kicked out” of their circumstances in order to justify a warrantless Appeals for the Ninth Circuit ruled that it was apartment several weeks earlier. In United search of a parked, immobile, unoccupied reasonable for a National Park Service ranger States v. Levesque , 625 F. Supp. 428, 450-51 vehicle.”). to conduct a warrantless viewing of videotapes (D.N.H. 1985), the court ruled that the motor 44 State v. Werner , 615 A.2d 1010 (R.I. seized from the defendant’s car 7 to 10 days vehicle exception did not apply to a trailer that 1992) (“exigency is no longer a requirement of earlier. was situated on a lot in a trailer park, under the automobile exception”); State v. Marquardt , 55 Johns , 469 U.S. at 487. circumstances indicating that it was being used 635 N.W.2d 188 (Wis. App. 2001) (“Issues 56 The Johns Court stated: “We do not as a residence. The truck which towed the concerning whether the police could have suggest that police officers may indefinitely trailer was only a few feet from the trailer, but obtained a warrant prior to searching [the motor retain possession of a vehicle and its contents the trailer was not readily mobile because one vehicle] are not relevant to the analysis.”); State before they complete a vehicle search. Cf. end of the trailer was elevated on blocks and v. Redfearn , 441 So.2d 200, 202 (La. 1983) Coolidge v. New Hampshire , 403 U.S. 443 the trailer was connected to utilities at the (“Given that a warrantless search on the scene (1971) (White, J., dissenting). Nor do we campground. It would have taken the defend- would have been constitutional, the later search foreclose the possibility that the owner of a ants three quarters of an hour to connect the at the police pound is also constitutional.”); vehicle or its contents might attempt to prove trailer and truck before they could tow it Commonwealth v. Moses , 557 N.E.2d 14 that delay in the completion of a vehicle search from the trailer park. But see United States (Mass. 1990) (“A reasonable delay in a was unreasonable because it adversely affected v. Hamilton , 792 F.2d 837 (9th Cir. 1986), warrantless automobile search does not violate a privacy or possessory interest. Cf. United disapproved on other grounds , United States the Fourth Amendment or art. 14 [of the Mass. States v. Place , 462 U.S. 696 (1983).... v. Kim , 105 F.3d 1579 (9th Cir. 1997) (motor Const.]”); State v. Gallant , 574 A.2d 385, 391 Respondents do not challenge the legitimacy of vehicle exception applied to a motor home (N.H. 1990) (“For constitutional purposes we the seizure of the trucks or the packages, and parked in driveway and plugged to electrical see no difference between a warrantless search they never sought return of the property. Thus, utilities by an extension cord). conducted at the location where the vehicle is respondents have not even alleged, much less 33 471 U.S. at 394 n.3. first stopped and a subsequent warrantless proved, that the delay in the search of packages 34 United States v. Johns , 469 U.S. 478 search that takes place at another location, so adversely affected legitimate interests protected (1985). long as the subsequent search is conducted as by the Fourth Amendment.” 469 U.S. at 487. 35 United States v. Forrest, 620 F.2d 446 soon as practicable and is motivated by either (5th Cir. 1980). safety or law enforcement concerns....The Law enforcement officers of other than 36 United States v. Lee, 274 U.S. 559 State, however, bears the burden, as with other federal jurisdiction who are interested (1927). circumstances justifying a warrantless search, in this article should consult their legal 37 United States v. Hill , 855 F.2d 664 (10th of proving by a preponderance of the evidence advisors. Some police procedures ruled Cir. 1988). the presence of public safety or law enforce- permissible under federal constitutional 38 United States v. Nigro, 727 F.2d 100, ment factors requiring removal from the law are of questionable legality under 106-07 (6th Cir. 1984); United States v. location where probable cause and exigency Montgomery, 620 F.2d 753 (10th Cir. 1980). would have allowed a warrantless search.”); state law or are not permitted at all.

32 / FBI Law Enforcement Bulletin