Darren Chaker – Automobile Exception
“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461-62 (1971). Rather, under the “automobile exception” to the Fourth Amendment’s warrant requirement, the search of a vehicle may be conducted only upon probable cause to believe that the vehicle contains evidence of a crime. See United States v. Ross, 456 U.S. 798, 823 (1982). The facts known to the officer at the time of the search must be sufficient to justify the issuance of a search warrant. See id. (where officer conducts vehicle search on probable cause, “[o]nly the prior approval of the magistrate is waived; the search otherwise [must be one] the magistrate could authorize”).
In the Ninth Circuit, the warrantless search of a lawfully parked vehicle will fall within the automobile exception where officers have probable cause to believe that the vehicle is associated with criminal activity. See United States v. Bagley, 772 F.2d 482, 491 (9th Cir. 1985). The search itself, however, must be reasonable in scope. See id. (citing California v. Carney, 471 U.S. 386 (1985)).
The Ninth Circuit adopted this test in Bagley in light of the Supreme Court’s decision in Carney, in which the Supreme Court permitted the warrantless search of an occupied mobile home after police officers observed suspected narcotics activity inside. See Carney, 471 U.S. at 388. The Eleventh Circuit, by contrast, has disagreed with the Ninth Circuit and concluded that Bagley constituted an unwarranted extension of Carney because Carney did not involve an unoccupied car. See United States v. Alexander, 835 F.2d 1406, 1410-11 (11th Cir. 1988). The Eleventh Circuit, focusing on the mobility of vehicles as the basis for the automobile exception, requires a “minimal” showing of exigency in addition to probable cause for the search of a parked car. See id.
This tension regarding the scope of permissible police activity with respect to parked cars arises because the warrantless search of a legally parked and unoccupied vehicle stretches the outer limits of the automobile exception. Indeed, until the Supreme Court’s decision in Carney, the Ninth Circuit did not permit warrantless searches of parked cars unless the vehicle had been in transit when stopped or there were exigent circumstances that would have made it impracticable to get a warrant. See Bagley, 772 F.2d at 490 (discussing earlier rule set forth in United States v. Spetz, 721 F.2d 1457 (9th Cir. 1983)). In light of the potentially extreme consequences of the Bagley rule, several state courts have relied on state law to preclude warrantless searches of parked cars in the absence of exigent circumstances. See, e.g., State v. Harnisch, 954 P.2d 1180, 1183 (Nev. 1998) (Nevada Constitution requires a showing of probable cause and exigency to justify warrantless search of parked, unoccupied, and immobile vehicle); State v. Coleman, 2 P.3d 399, 401-02 (Or. 2000) (Oregon Constitution requires probable cause and showing of exigency beyond inherent mobility of vehicle for warrantless search of parked and unoccupied car).
In jurisdictions following Carney and Bagley, courts have applied the rule carefully and have upheld the search of a parked car only after noting the abundance of evidence tying the vehicle and its occupants to criminal activity. A common theme uniting these cases appears to be the strength of the investigation preceding the search, pursuant to which the officers were able to develop and corroborate specific information that the vehicle was being used to facilitate a crime.
Bagley itself, for example, involved the search of a suspected getaway car in a bank robbery. An eyewitness to the robbery observed the robber driving away in a large, gold-colored car. See Bagley, 772 F.2d at 485. Two officers in the area heard a transmission of the eyewitness’ report and saw the defendant drive by in a similar car. See id. After the officers saw the defendant park the car and leave the area, the eyewitness was brought to the scene and identified the car as the getaway car. See id. at 486. The officers could see sunglasses and gloves on the front seat that were similar to those worn by the robber. See id. One of the officers then broke into the car, but decided to leave the evidence inside and wait for a tow truck. See id. The car was later searched pursuant to a warrant. See id. The Ninth Circuit concluded that the initial search and seizure of the car were permissible in light of the eyewitness’ identification of the car within minutes of the robbery and in light of the officers’ observation of the gloves and sunglasses on the front seat. See id. at 491.
Similarly, in United States v. Miller, 812 F.2d 1206 (9th Cir. 1987), officers obtained a warrant to search a home that was suspected to contain a methamphetamine lab. The affidavit supporting the warrant indicated that the information had been provided by a confidential informant. See id. at 1207. The warrant also authorized the search of the defendant, two other people, and their vehicles, all of which were searched during the night pursuant to the warrant. See id. at 1207-08. However, the district court suppressed all evidence because the warrant had not been endorsed for night service. See id. at 1207. On appeal, the government challenged only the suppression of the evidence found in the defendant’s car, on grounds that independent probable cause supported that search.
The Ninth Circuit agreed that probable cause supported the search of the car in light of the following facts: the search had been conducted after the defendant and his car were located at his girlfriend’s house. Officers first determined that the car belonged to the defendant by checking its make and license plate. See id. at 1209 n.1. The officers then brought the defendant outside and searched him next to his car. At the same time, the officers: detected a strong smell of phenalytic acid, known to be used in the manufacture of methamphetamine, emanating from Miller’s car. In addition, the officers observed a hand gun in plain view on the front floor and laboratory equipment commonly used in the manufacture of methamphetamine on the back seat of Miller’s car.
These plain view, plain smell observations, added to their knowledge that Miller was a suspected methamphetamine manufacturer, and that the car was clearly his, gave the officers sufficient independent probable cause to search Miller’s car without a warrant. Id. at 1208-09 (internal footnote omitted). Thus, in both Bagley and Miller, the search of the parked car occurred only after officers had developed a substantial basis to believe that the driver of the car was involved in criminal activity, and that the driver’s unoccupied car contained evidence of that activity. See also Alexander, 835 F.2d at 1409 (finding probable cause for search of parked car that had been driven by bank robbery suspect in days after robbery where F.B.I. found “significant evidence” incriminating defendant during search of his apartment but police had not discovered robbery weapon and believed it was in car).
Under Ross, the Court must determine whether the presence of any object would have been sufficient to justify the issuance of a warrant for the search of the entire car. See Ross, 456 U.S. at 823. Following the analysis in Ross, Bagley, and Miller, there would have been no basis for the issuance of a warrant because unless there was sufficient cause to rise to the level of a warrant at the moment the search was executed.