SEARCHING A VEHICLE WITHOUT A WARRANT

SEARCHING A VEHICLE

WITHOUT A WARRANT

The Carroll Doctrine

Bryan R. Lemons

Senior Legal Instructor

The Federal Bureau of

Investigations reports that 93 law

enforcement officers were killed while

engaged in traffic stops or pursuits during

the period 1989 – 1998.

During 1998

alone, 9 law enforcement officers were

killed and another 6,242 were assaulted

during traffic stops or pursuits.

Fortunately, the Supreme Court has long

recognized the very real dangers faced by

law enforcement officers who confront

suspects located in vehicles.

Further, the

Court has noted that “for the purposes of

the Fourth Amendment, there is a

constitutional difference between houses

and cars.”

This “constitutional

difference” can result in the warrantless

search of a vehicle being upheld under

circumstances in which the search of a

home would not.

A vehicle may be searched without

a warrant in a variety of situations. In the

next few editions of the Quarterly Review,

Federal Bureau of Investigation, Uniform Crime

Reports, “Law Enforcement Officers Killed and

Assaulted in 1998”, Table 19, Page 32

Id. at Table 20, Page 33 and Table 40, Page 88

See Michigan v. Long, 463 U.S. 1032, 1048

(1983)(Noting “danger presented to police officers

in ‘traffic stops’ and automobile situations”);

Pennsylvania v. Mimms, 434 U.S. 106, 110

(1977)(Decision rested, in part, on the “inordinate

risk confronting an officer as he approaches a

person seated in an automobile”); and Adams v.

Williams, 407 U.S. 143, 148 n.3 (1972)(Citing a

study indicating that “approximately 30% of police

shootings occurred when a police officer

approached a suspect seated in an automobile”)

Chambers v. Maroney, 399 U.S. 42, 52 (1970)

Cardwell v. Lewis, 417 U.S. 583, 589 (1974)

I will discuss five of the most frequently

encountered exceptions to the warrant

requirement of the Fourth amendment, as

those exceptions apply to searches of

vehicles. In discussing each exception, the

background, requirements, and scope of

the search will be addressed. With regard

to the scope of the search, the articles will

focus on four specific areas: The

passenger compartment of the vehicle; the

trunk of the vehicle; unlocked containers

located in the vehicle; and locked

containers located in the vehicle. The first

article in this series will deal with

searching a vehicle pursuant to consent.

Subsequent articles will deal with

searching a vehicle incident to arrest;

searching a vehicle under the mobile

conveyance exception (Carroll Doctrine);

searching a vehicle as part of the inventory

process; and searching a vehicle during a

lawful Terry stop.

BACKGROUND

“It is well-settled that a valid

search of a vehicle moving on a public

highway may be had without a warrant, if

probable cause for the search exists, i.e.,

facts sufficient to warrant a man of

reasonable caution in the belief that an

offense is being committed.”

This

exception was first established by the

Supreme Court in the 1925 case of Carroll

v. United States,

and provides that, if a

law enforcement officer has probable

cause to believe that a vehicle has

evidence of a crime or contraband located

in it, a search of the vehicle may be

conducted without first obtaining a

warrant. There are two (2) separate and

distinct rationales underlying this

exception. First, the inherent mobility of

Fernandez v. United States, 321 F.2d 283, 286-

287 (9

Cir. 1963)(citations omitted)

267 U.S. 132 (1925)

vehicles typically makes it impracticable

to require a warrant to search, in that “the

vehicle can be quickly moved out of the

locality or jurisdiction in which the

warrant must be sought.”

As the

Supreme Court has consistently observed,

the inherent mobility of vehicles “creates

circumstances of such exigency that, as a

practical necessity, rigorous enforcement

of the warrant requirement is impossible.”

For this reason, “searches of cars that are

constantly movable may make the search

of a car without a warrant a reasonable one

although the result might be the opposite

in a search of a home, a store, or other

fixed piece of property.”

Second, an

individual’s reduced expectation of

privacy in a vehicle supports allowing a

warrantless search based on probable

cause.

Automobiles, unlike

homes, are subjected to

pervasive and continuing

governmental regulation

and controls, including

periodic inspection and

licensing requirements. As

an everyday occurrence,

police stop and examine

vehicles when license

plates or inspections

stickers have expired, or if

other violations, such as

exhaust fumes or excessive

noise, are noted, or if

headlights or other safety

equipment are not in proper

working order.

Id. at 153

Opperman, 428 U.S. 364 at 267

Cooper v. California, 386 U.S. 58, 59

(1967)(citation omitted)

Opperman, 428 U.S. at 368

REQUIREMENTS

There are two (2) requirements for

a valid search under the mobile

conveyance exception. First, there must

be probable cause to believe that evidence

of a crime or contraband is located in the

vehicle to be searched. “Articulating

precisely what ... ‘probable cause’ mean[s]

is not possible.”

Suffice it to say,

probable cause cannot be “readily, or even

usefully, reduced to a neat set of legal

rules.”

Instead, the Supreme Court has

found probable cause to exist “where the

known facts and circumstances are

sufficient to warrant a man of reasonable

prudence in the belief that contraband or

evidence of a crime will be found.”

essence, this simply means that before

conducting a warrantless search of a

vehicle, a law enforcement officer should

have sufficient facts available to him so

that if he attempted to obtain a warrant

from a magistrate judge, he would be

successful. As noted by the Supreme

Court in United States v. Ross:

“[O]nly

the prior approval of the magistrate is

waived; the search otherwise [must be

such] as the magistrate could authorize.”

Thus, a search of a vehicle based upon

probable cause “is not unreasonable if

based on facts that would justify the

issuance of a warrant, even though a

warrant had not actually been obtained.”

In determining whether probable cause

exists, courts utilize a “totality of the

circumstances” test.

Ornelas v. United States, 517 U.S. 690, 695

(1996)

Id. at 695-696

Id. at 696

United States v. Ross, 456 U.S. 798 (1982)

Id. at 823

Id. at 809

Illinois v. Gates, 462 U.S. 213 230-231 (1983)

Establishing probable cause to

search a vehicle may be accomplished in a

variety of ways. For example, a law

enforcement officer may be able to

establish probable cause based on a tip

provided to him by a reliable confidential

informant.

Additionally, when a law

enforcement officer personally observes

evidence or contraband in plain view

inside a vehicle, probable cause can arise.

Additionally, the “plain smell” corollary to

the plain view doctrine may allow a law

enforcement officer to establish probable

cause based upon his or her sense of smell.

In United States v. Miller,

law

enforcement officers used both plain view

and plain smell observations to justify the

warrantless search of the suspect’s vehicle.

As stated by the Ninth Circuit:

The police officers who

arrived at the Elm Street

address detected a strong

smell of phylacetic acid,

known to be used in the

manufacture of

methamphetamine,

emanating from Miller’s

car. In addition, the

officers observed a

handgun in plain view on

the front floor and

laboratory equipment

commonly used in the

manufacture of

methamphetamine on the

backseat of Miller’s car.

These plain view, plain

smell observations ... gave

the officers sufficient

independent probable cause

to search Miller’s car

without a warrant.

Maryland v. Dyson, 527 U.S. 465 (1999)

812 F.2d 1206 (9

Cir. 1987)

Id. at 1208-1209. See also United States v.

The second requirement for a valid

search under the mobile conveyance

exception is that the vehicle be “readily

mobile.” This does not mean that the

vehicle be moving at the time it is

encountered, only that the vehicle be

capable of ready movement. Illustrative

on this point is the Supreme Court’s

decision in California v. Carney.

Carney, law enforcement officers searched

a motor home after establishing probable

cause that marijuana was located inside.

At the time of the search, the motor home

was parked in a parking lot in downtown

San Diego. Upon finding marijuana, the

defendant was arrested and later pled nolo

contendre to the charges against him. On

appeal, the California Supreme Court

overturned the defendant’s conviction,

finding that the mobile conveyance

exception did not apply in this case, in that

“the expectations of privacy in a motor

home are more like those in a dwelling

than in an automobile because the primary

function of motor homes is not to provide

transportation but to ‘provide the occupant

with living quarters.’”

The Supreme Court, however,

disagreed, finding the mobile conveyance

exception applicable in this case. After

reviewing the bases for the exception, the

Court concluded:

When a vehicle is being

used on the highways, or if

it is readily capable of such

use and is found stationary

in a place not regularly

used for residential

Harris, 958 F.2d 1304 (5

Cir.), cert. denied, 506

U.S. 898 (1992)(plain smell) and United States

v. Anderson, 468 F.2d 1280 (10

Cir. 1972)(plain

smell)

471 U.S. 386 (1985)

Id. at 389 (citation omitted)

purposes – temporary or

otherwise – the two

justifications for the vehicle

exception come into play.

First, the vehicle is

obviously readily mobile by

the turn of an ignition key,

if not actually moving.

Second, there is a reduced

expectation of privacy

stemming from its use as a

licensed motor vehicle

subject to a range of police

regulation inapplicable to a

fixed dwelling. At least in

these circumstances, the

overriding societal interests

in effective law

enforcement justify an

immediate search before

the vehicle and its

occupants become

unavailable.

While the Supreme Court did not

discuss the applicability of the mobile

conveyance exception to a motor home

that is “situated in a way or place that

objectively indicates that it is being used

as a residence,”

among the factors they

deemed relevant included the location of

the motor home; whether it was readily

mobile or elevated on blocks; whether it

was licensed; whether it was connected to

utilities; and whether it had convenient

access to a public road.

Two additional matters regarding

the mobile conveyance exception deserve

comment. First, there is no “exigency”

required to conduct a warrantless vehicle

search; all that is required is a mobile

conveyance and probable cause. Thus,

even if a law enforcement officer had the

Id. at 392-393 (footnote omitted)

Id. at 394 n.3

opportunity to obtain a warrant and failed

to do so, the search will still be valid if the

two requirements discussed above were

present. In Maryland v. Dyson,

a law

enforcement officer received a tip from a

reliable confidential informant that the

defendant would be returning to Maryland

later that day carrying drugs in a specific

vehicle with a specific license plate

number. This information gave the officer

probable cause to search the vehicle.

Approximately, 14 hours later, the

defendant’s vehicle was stopped as it

returned to Maryland. In upholding the

search, the Supreme Court cited to their

previous decisions in finding that “the

automobile exception does not have a

separate exigency requirement: ‘If a car is

readily mobile and probable cause exists

to believe it contains contraband, the

Fourth Amendment ... permits the police

to search the vehicle without more.’”

Second, once a law enforcement

officer has probable cause to search a

readily mobile vehicle, the search may be

conducted immediately or later at the

police station. “There is no requirement

that the warrantless search of a vehicle

occur contemporaneously with its lawful

seizure.”

In United States v. Johns,

the

Supreme Court upheld the warrantless

search of three packages that had been

seized from a vehicle three days earlier,

noting that “the justification to conduct

such a warrantless search does not vanish

once the car has been immobilized.”

Nonetheless, law enforcement officers

must act “reasonably” and may not

“indefinitely retain possession of a vehicle

527 U.S. 465

Id. at 466

United States v. Johns, 469 U.S. 478, 484

(1985)(citations omitted)

Id.

and its contents before they complete a

vehicle search.”

SCOPE

The scope of a search conducted

pursuant to the mobile conveyance

exception was laid out by the Supreme

Court in United States v. Ross.

There,

the Court stated:

We hold that the scope of

the warrantless search

authorized by [the mobile

conveyance] exception is

no broader and no narrower

than a magistrate could

legitimately authorize by

warrant. If probable cause

justifies the search of a

lawfully stopped vehicle, it

justifies the search of every

part of the vehicle and its

contents that may conceal

the object of the search.

It should be remembered, however,

that probable cause to search does not

automatically entitle a law enforcement

officer to search every part of a vehicle.

For example, where there is probable

cause to believe that a vehicle contains

drugs, a search of the glove compartment

would be permissible. Alternatively, if

there is probable cause that the vehicle

contains a large stolen television, a search

of the glove compartment would be

impermissible, in that the television could

not be concealed in that location. Any

mobile conveyance search is necessarily

limited by what it is the officers are

seeking in their search. In sum, if a search

warrant could authorize the officers to

Id. at 487

Supra, note 10

Id. at 825 (emphasis added)

search in a particular location, such as the

passenger compartment or trunk of the

vehicle, the officers may search there

without a warrant. A law enforcement

officer may also search locked or unlocked

containers located in the vehicle, if the

object of the search could be concealed

inside. The rule on containers appears to

be relatively straightforward.

Nonetheless, the issue of searching

containers located in a vehicle merits

additional discussion. As one

commentator has observed:

The Supreme Court has

faced profound difficulties

when reviewing warrantless

searches of closed

containers found in autos.

The Court has divided these

cases into two groups. In

the first group of cases,

police possess probable

cause to suspect that a

closed container in a

vehicle contains

incriminating evidence, but

lack probable cause to

suspect that any other part

of the auto holds such

evidence. In the second

group of cases, police have

probable cause to search

the entire auto and

unexpectedly stumble upon

a closed container.

In the first group of cases, the

Supreme Court’s decision in California v.

Acevedo

is controlling. In Acevedo, the

police had probable cause that a container

Steinberg, David E., The Drive Toward

Warrantless Auto Searches: Suggestions From a

Backseat Driver, 80 B.U.L.REV. 545, 550

(2000)(footnotes omitted)

California v. Acevedo, 500 U.S. 565 (1991)

placed in the trunk of a vehicle contained

marijuana. Believing they might lose the

evidence if they sought a search warrant,

the officers stopped the vehicle, opened

the trunk, and searched the container (a

paper bag). Marijuana was found inside

the bag. In finding the search of the paper

bag legal, the Supreme Court held that,

when law enforcement officers have

probable cause that a specific container

placed inside a vehicle has evidence of a

crime or contraband located inside of it,

they may search the container, locked or

unlocked, under the mobile conveyance

exception. However, the probable cause

relating to the container does not support a

general search of the vehicle. If the

officers wish to search the entire vehicle,

they must have some other justification to

do so, such as consent or a search incident

to arrest. As stated by the Supreme Court:

In the case before us, the

police had probable cause

to believe that the paper

bag in the automobile’s

trunk contained marijuana.

That probable cause now

allows a warrantless search

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.

In the second group of cases, law

enforcement officers have probable cause

to search the entire vehicle and discover a

closed container during their search.

Id. at 579

When this occurs, the officers may search

the container, whether locked or unlocked,

if what they are seeking could be

concealed inside of it. As noted by the

Supreme Court in Ross, supra:

The scope of a warrantless

search of an automobile ...

is not defined by the nature

of the container in which

contraband is secreted.

Rather, it is defined by the

object of the search and the

place in which there is

probable cause to believe

that it may be found.

Further, the rule of Ross has been

extended to include a passenger’s

belongings. In Wyoming v. Houghton,

the Supreme Court noted that “neither

Ross nor the historical evidence it relied

upon admits of a distinction among

packages or containers based on

ownership.”

Accordingly, “police

officers with probable cause to search a

car may inspect passengers’ belongings

found in the car capable of concealing the

object of the search.”

Ross, 456 U.S. at 824

526 U.S. 295 (1999)

Id. at 302

Id. at 307