Wednesday, October 11, 2017

The Automobile Exception and the Private Driveway

By Sherry Colb

In my Verdict column for this week, I examine the case of Collins v. Virginia, on which the U.S. Supreme Court recently granted review. According to the Court, the question presented by the case is the following: "Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house." As I discuss in my column, however, the facts of the case do not really present this question at all, in part because the vehicle in question (a motorcycle) was not searched and probably cannot be searched unless it is taken apart, and in part because the vehicle was covered by a tarpaulin, the removal of which constituted a search that does not neatly fit within the automobile exception at all. Here I want to consider whether there really ought to be an automobile exception.

Just to review, the automobile exception provides that police may search a vehicle on the basis of probable cause, without having to obtain a search warrant from a neutral magistrate confirming that probable cause. The automobile exception originally rested on the fact that cars are easily moved and therefore could be taken from point A to point B before police have a chance to seek and obtain a search warrant. In other words, the automobile "exception" was really an application of the exigent circumstances exception, which provides that if police confront an emergency in which seeking a warrant will endanger someone's safety or risk the removal or destruction of evidence, police may proceed without a warrant. But then the automobile exception expanded.

In Chambers v. Maroney, police arrested suspects and seized the vehicle in which they were traveling. Police did not immediately search the car, however. Instead, they brought it back to the police station and searched it later. Applying the automobile exception therefore seemed inappropriate there, because police could have obtained a warrant during the time between seizure of the vehicle and the actual search. The Court nonetheless approved the search, reasoning that seizing the car--without a warrant--for the time it takes to get a warrant interferes with a suspect's possessory interests in the car, while searching the car without a warrant interferes with a suspect's privacy interests in the car. Finding no reason to favor one interference over the other, the Court approved what the police did. This was odd, of course, because the police here actually invaded both possessory and privacy interests by holding the car without a warrant and then searching that car without a warrant. Chambers thus went beyond the exigency rationale that the Court had articulated for the automobile exception in Carroll v. United States.

Even in Carroll, however, the Court talked about how the search of a car is "different" from the search of other places, like dwellings and stores. And though it relied on the mobility of a car, it was possible to take the language further and conclude that cars are entitled to less privacy than these other places (including the home). With the privacy rationale in play, it became easier to argue that police should not have to obtain a warrant to search a car, even if the car was stationary and could be watched and prevented from leaving the vicinity while the officer sought a warrant.

Does this make sense, though? If we really believe that people are less entitled to privacy in cars than in dwellings, we might want to require something less than probable cause as a standard for being able to search a car, while requiring probable cause to search a house. Not requiring a neutral magistrate to review an officer's judgment about probable cause, however, does not necessarily give less privacy protection to the car. Ideally, a police officer knows what probable cause means and therefore searches only on those occasions on which there really is probable cause to search the car, in which case a magistrate would have issued a warrant. The purpose of the warrant requirement, then, is not to give people more privacy than they would otherwise have; it is to ensure that they really get the privacy to which they are actually entitled.

The Court has thus approved application of the automobile "exception" to the numerous cases that arise in which there is no good reason for police not to seek a warrant. This approval, explained on the basis of people's lesser expectation of privacy, essentially means that the Court expects police officers to make mistakes in determining that there is probable cause. Furthermore, the Court must be anticipating that those mistakes will go undiscovered by a trial court and appellate courts, because if such courts did discover the mistakes, then there would be more suppression of evidence than if the Court had required--and police had therefore obtained--a search warrant, and such an outcome would certainly be undesirable from the Court's perspective and would not leave privacy less protected for automobiles. But the Court does not expect suppression. It expects instead that police will make mistakes and that those mistakes will go uncorrected, a failure that the Court apparently deems acceptable because of the lesser expectation of privacy in the automobile.

This is ultimately what is so disappointing about the automobile exception and its weak rationale. No one would argue with officers searching a vehicle that really will otherwise be driven away. In most cases, it is unclear why police cannot simply seize the vehicle and obtain a warrant, a seizure that a suspect could always avoid by consenting to a search of the vehicle on the spot. But the notion that cars are less private than houses does not really explain why magistrates should not be reviewing the probable cause that police believe they have to search cars. This is especially true now that police can obtain a warrant electronically in very little time. It would be a little like saying that people convicted on the basis of evidence found in a car have no right to appeal their convictions, but people convicted on the basis of evidence found in a house do have a right to appeal. The avoidance (or remediation) of error should not turn on the strength of one's expectation of privacy.

Thus, were it up to me, I would overrule the cases announcing and applying an automobile exception and return to the exigency exception to cover cases of real emergency. Absent any automobile exception (a fantasy, I realize), there would be no cause to consider whether to extend this nonexistent exception to the driveway of a person's home. And because the facts of the case before the Court do not present the issue that the Justices seem to think it presents (as explain in more detail in my column), I would use this case instead to consider the merits of the automobile exception more generally, finding that it is without merit and ought to be abolished.


Shag from Brookline said...

Collins v. Virginia, a state case, looks at the 4th A through its (eventual) incorporation via the 14th A. I'curious as to the views of originalists on original public meaning when the 4th A was ratified (1791) and/or when the 14th A was ratified (late 1860s). Were vehicles of transport back in those days the subjects of 4th A cases?

Joe said...

One concern originally were searches of ships and via a quick search found reference to trespass actions [Scalia in U.S. v. Jones, involving attaching something to a car, relied on property interests and what was subject to such things] involving stagecoaches.

OTOH, in Carroll v. United States (the origin of the "automobile exception"), an originalist case is made to make exceptions:

"We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought."

What "not practicable" means in a day where telephone warrants can be obtained at almost the spur of the moment is open to debate.

Joe said...

[Off topic, Shag in a separate comment on another blog noted: "Lawson mentioned in his article that he was clerking for Justice Scalia when Crawford came down in 1986." Crawford came later. The author spoke of an earlier case by Scalia.]

Shag from Brookline said...

Joe, Thanks for the correction. I was typing from memory [which is the second thing to go] and did not have hard copy at hand, as I had the article on desktop for easier reading but did not have time to double check as bedtime approached. Unfortunately "moderation" is in effect at that blog post and I cannot correct it there. (I do not wish to delete it, even if possible.) But issues discussed by Lawson in his article may be to relevant to upcoming posts at that blog and if comments are permitted, I'll make a correction; I was attempting to make some points on the evolving of originalism over the years.

As to the subject of this post, Lawson's article may have some relevancy since pre-14th A, the 4th A did not apply to the states. Query whether any of the cases relied upon in Carroll were state cases decided before the Court formally incorporated the 4th A to apply to the states via the 14th A. I realize Carroll was a federal case. I'll check later on when the Court incorporated the 4th A.

Joe said...

Carroll did cite a few state cases in its discussion. Two conservatives dissented applying general principles (the requirement of a lawful arrest in this case) to hold for the defendants. Prof. Colb's druthers would be to use them too (exigent circumstances).

Wolf v. Colorado (1949) is the usual case cited regarding incorporation; Mapp v. Ohio (1961) incorporated the exclusionary rule. The majority in Wolf applied the "ordered liberty" test [defensible on originalist grounds, perhaps] to determine the 4A should be incorporated, but looked at state practice (not in 1868) to determine the exclusionary rule was not compelled. The dissents, later made law in Mapp, held the rule was necessary to enforce the 4A.

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Asher Steinberg said...

You have a typo in the first paragraph: "neatly feat within . . . ."

The facts, as you describe them, remind me of a delightful little case I worked on once as a judicial intern. For whatever reason, the plaintiffs' search claim was abandoned in the district court in favor of what turned out to be a loser unlawful-arrest claim, so there's no opinion on it, but the facts -- well, here they are:

On January 7, 2007, a Greene County, Tennessee business reported the theft of five “Toro-red,” zero-turn, riding lawn mowers. The same day, Detective Fincher interviewed Betty Huff, a local resident. She reported seeing a pickup truck pulling several riding mowers towards Old Chuckey Highway, which is in the “general direction” of the Fowlers' home on Sand Bar Road.

Almost a month later, on Friday, February 2, 2007, Fincher interviewed Charles Mosier at the Unicoi County jail. Mosier and Charles Williams had been arrested for driving a stolen truck and were suspects in the mower heist. Mosier told Fincher that he and Williams had done some work on the Fowlers' home, and that Williams had sold one of the stolen mowers to the Fowlers for $4,500 on the day of the theft. Mosier had provided additional information that led to the recovery of other mowers, so Fincher credited the tip.

Fincher called Huffine and relayed Mosier's story. Huffine and another officer went to the Fowlers' home. When no one answered the door, the officers looked for the Fowlers in the outbuildings on the property. In an open shed, Huffine saw “a tarp over a large object that was in the shape of a zero-turn riding lawnmower.” Huffine could see the bottom of the mower, which looked new and was “Toro red” in color. He lifted the tarp, checked the serial number, and confirmed that it was one of the stolen mowers.

Officers waited for the Fowlers to return home, fearing the mower might “disappear". . . .