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
1
exception was first established by the
Federal Bureau of Investigation, Uniform Crime Supreme Court in the 1925 case of Carroll
Reports, “Law Enforcement Officers Killed and
Assaulted in 1998”, Table 19, Page 32 v. United States,7 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
6
approached a suspect seated in an automobile”) 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 7
Cardwell v. Lewis, 417 U.S. 583, 589 (1974) 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 14
Id. at 153 Id. at 696
9 15
Opperman, 428 U.S. 364 at 267 United States v. Ross, 456 U.S. 798 (1982)
10 16
Cooper v. California, 386 U.S. 58, 59 Id. at 823
17
(1967)(citation omitted) Id. at 809
11 18
Opperman, 428 U.S. at 368 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 23
Id. at 1208-1209. See also United States v. 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
26
conveyance and probable cause. Thus, 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 29
Id. at 392-393 (footnote omitted) Id.
25 30
Id. at 394 n.3 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 35
Id. at 825 (emphasis added) 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
36
Amendment.

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