"From the Classroom"  - Ray Hill, Professor Emeritus, Santa Rosa Junior College

Ray Hill is a retired Police Lieutenant and Professor Emeritus at Santa Rosa Junior College. He has taught in the POST Basic Academy and Advanced Officer Training for 45 years.

The “Automobile Exception” - An Expanded History of Transportation

   My first car was a 1957 Chevy, V8, 4-barrel, stick shift. Wish I had the foresight back then to have stored it and saved it for today! I never thought back then when a police officer or deputy could search my car. But searching cars has a century of case law roots.

   In 1921, George Carroll was driving his Oldsmobile Roadster on a highway outside of Grand Rapids, Michigan. He was stopped by Federal Prohibition Agents based upon surveillance and information that Carroll was involved in “illegal bootlegging” A warrantless search of his vehicle was conducted. Behind the upholstery of the seats (the filling had been removed to facilitate concealment) were “68 quarts of bonded whiskey and gin” in violation of federal law.

   Carroll’s argument in support of suppressing this evidence - “Where was the Search Warrant”? Earlier federal statutes permitted a tax collector or naval officer to board a vessel to inspect for goods subject to tax (1789) and an agent or military post commander to search a boat, wagon, buggy, or sled to limit the import of liquor onto an Indian reservation (1834), but what about these new fangled contraptions called cars?

Note: America’s first gasoline car, the Duryea Motor Wagon, was manufactured by the Duryea Bros. of Springfield, Mass in 1893.

   Being that there was no established Fourth Amendment precedent for cars, this case finally made its way up to the U.S. Supreme Court (Carroll v. U.S., (1925) 267 U.S. 132). The court ruled “the exception to the warrant requirement for moving vehicles recognizes a necessary difference between a search of a store, dwelling house, or other structure for which a search warrant must be obtained, and a search of a ship, motor boat, wagon, or automobile”. The court established the precedent we use today - The “Automobile Exception” to the Search Warrant Requirement. This rules says: 1) When there is probable cause (“fair probability” or “substantial chance”); 2) That evidence or contraband will be found in a vehicle that is mobile or accessible to the roadway; 3) The vehicle, its compartments, and containers may be searched without a search warrant subject to scope – (“What am I looking for”? and “Where will I find it”? You can’t find an elephant in a shoebox!).

   So what about mobility? An introduction from the 1DCA - “Like a 19th-Century itinerant peddler, appellant Boot Hughston arrived in Mendocino County in the summer of 2006 to sell his wares.  Instead of pushing a cart, he drove a rented Hummer, and in place of pots, pans and other dry goods, he sold illegal drugs”. A Bureau of Narcotics Enforcement agent observed the defendant selling drugs at the Sierra Nevada World Music Festival in Mendocino County. Defendant was arrested and capsules containing MDMA, baggies containing psilocybin mushrooms, and cocaine were recovered from his backpack. Also recovered were car keys and a Hertz rental agreement for a Hummer. The Hummer was parked in an area set aside for camping. Defendant had pitched a tent-like structure that enveloped the vehicle. Inside this makeshift structure were several smaller tents and a kitchen/dining area. The vehicle was enclosed by a large tarp attached with “zip ties” to a 10’ X 30’ aluminum A-frame and to the bumper, mirrors, and grill. There was an untied flap that served as the entrance and exit. Agents entered and searched the Hummer, recovering more MDMA capsules, marijuana, several pounds of psilocybin, and a quarter pound of cocaine. The search was ruled unlawful. The nature of the enclosure around the vehicle was equivalent to a large camping tent located in a public campground. “Whether of short or long term duration, one’s occupation of a tent is entitled to the same protection from unreasonable governmental intrusion as that afforded to homes or hotel rooms”. The Hummer was not readily mobile for the purposes of the “Auto Exception” (Peo. v. Hughston (2008) 168 Cal. App. 4th 1062).

   In 1982, U.S. revisited the Carroll precedent and ruled the “Automobile Exception” was alive and well and applied to searching closed containers (including locked containers) found inside the vehicle. This case involved a Washington D.C. officer’s search of the defendant’s vehicle where heroin for sale and currency were found in a brown paper bag and zippered leather pouch located in the trunk. With probable cause, a warrantless search of a vehicle and its contents may be conducted as thorough as a magistrate would authorize if presented with the same facts. “During virtually the entire history of our country - whether contraband was transported in a horse drawn carriage, a 1921 roadster, or in a

modern automobile - it has been assumed that a lawful search of a vehicle would include a search of any container that might conceal the object of the search” (U.S. v. Ross (1982) 456 U.S. 796).

   Since the Carroll and Ross decisions, case law has expanded the “Automobile Exception” to other modes of transportation:

Motorhomes - DEA received a tip that the defendant was trading drugs for sex in his motorhome. The motorhome was parked in a public parking lot in San Diego. Agents watched a youth enter the motorhome and emerge 1-1/2 hours later. They detained the youth and learned he had received marijuana in exchange for sexual contact. Officers entered the motorhome conducted a warrantless search and recovered marijuana possessed for sale. U.S. ruled the “Automobile Exception” applies when a motorhome is being operated on the roadway, is readily capable of such use, or is found stationary in a place not regularly used for residential purposes. “Though possessing some of the attributes of a house, by a turn of a key the motorhome could be made mobile” (California v. Carney (1985) 471 U.S. 386).

Note: If a motorhome is parked in a campground, “side outs extended”, and hooked up to disposal and utilities or parked behind a fence in one's backyard, tires flat, being used as a "granny unit", then it carries residential protection. The motorhome should be “secured” and a search warrant obtained.

   In an interesting case, a court ruled that a motorhome parked in a residential driveway with an extension cord connecting to the house utility was still mobile under the Auto Exception. The vehicle had been driven the day before the search, persons were inside the motorhome watching television, and the extension cord could hardly constitute “the pipe and drain connection that would render a motorhome more permanent” (U.S. v. Hatley (1993) 999 F 2d 392).

House Trailer Connected to a Vehicle: Defendant was carrying a loaded weapon and brandished same during a dispute in a Los Angeles City Park. His van and connected house trailer were in a public lot having been recently driven there and parked. When contacted by investigating officers, the defendant admitted the gun was in his trailer. Officers entered and recovered a loaded .380 auto in a drawer next to the sink. Though capable of residential occupancy, the trailer was in transit and was readily mobile for the purposes of a warrantless search (Garber v. Superior Court (2010) 184 Cal. App.4th 724).

Boats - Defendant's rented houseboat was floating in the Lake Powell National Recreation Area. He was suspected of BASE jumping (jumping from the canyon walls with parachutes and bungee cords) in violation of federal law. National Park Service Rangers boarded the houseboat and conducted a warrantless search, recovering parachutes, jumping equipment, a video camera, tapes and film, and written material describing BASE jumping. 9USCA ruled “an objective observer would conclude that a moving boat navigating the waters of a large lake is the same as that of a vehicle on a highway”. Probable cause to search existed because the houseboat was moored below a cliff known for BASE jumping and wet jumping equipment was observed on the deck (U.S. v. Albers, 9th Circuit (1998) 136 F3d 670).

Note: A houseboat permanently docked at a marina and used for living purposes would require a search warrant.

Bicycles - Defendant ran a stop sign on his bicycle. Sacramento Police officers were aware of his past narcotics history, he was 58 blocks from his residence, and riding in a known narcotics trafficking area. Defendant failed to yield to officers for 100’ and “shoved something” into the right handlebar of the bicycle prior to pulling over. Believing the defendant had concealed drugs, an officer turned the bicycle upside down and tapped on the handlebars. “Rocks” of cocaine fell from the handlebar tube. A bicycle being operated on a public street is subject to the “Automobile Exception” rule. Defendant’s prior narcotics record, the known criminal reputation of the area, his failure to yield, a furtive movement indicative of concealment, and his change of demeanor from calm to nervous when the officer began to examine his bicycle, provided probable cause to believe the defendant had concealed contraband (Peo. v. Allen (2000) 92 Cal. Rptr. 2d 869).

Airplanes – Based upon reliable information and multi-jurisdiction monitored surveillance, Alabama Division of Law Enforcement agents conducted a warrantless cause search of a Piper Warrior and found cocaine possessed with intent to distribute. The plane had recently landed, was parked on the tarmac, and the occupants were present at the scene. The 11th U.S. Circuit Court upheld the search ruling when it comes to mobility there is no difference between a car and an airplane (U.S. v. Rollins 11th Circuit (1985) 699 F2d 530).

   What about a vehicle parked in a driveway? If the vehicle appears readily mobile and parked in an area of normal ingress and egress to the residence under the “implied invitation” doctrine (i.e., anyone would walk by the vehicle while transiting to the front porch or main entrance of the home), the “Auto Exception” is good to go. However, there a limitation on officer exploration even on a driveway. In a Virginia case, the U.S. Supreme Court ruled there was an illegal entry onto the curtilage where police walked up a residential driveway, turned off onto an area adjacent to the driveway, lifted up a tarp covering a motorcycle in order to view the VIN number, and discovered a stolen vehicle. Officers did not remain on the normal access route to the front door and they engaged in activities not normally expected of visitors. “A visitor endeavoring to reach the front door of the house would have to walk part way up the driveway but would turn off before entering the area in which the motorcycle was parked and instead proceed up a set of steps leading to the front porch” (Collins v. Virginia (2018) 138 S. Ct, 166).

Note: It would be important evidence in a motion to suppress to take photographs/videos of a vehicle’s location in a driveway to help prove it was parked in an area open under the “implied invitation” doctrine (250 E.C.).

   What about a vehicle parked in the driveway that looks operable but actually doesn’t run so it can’t be moved? In this case because the car was “apparently mobile”, not up on blocks, tires flat, tires removed, hood up and engine parts in the driveway, it was reasonable for the officers to believe “with a turn of a key the vehicle could be mobile” (U.S. v. Hamilton (1986) 792 F 2d 843).

   What about a vehicle parked inside the garage with the garage door wide open? Looks like it is potentially accessible to the roadway in the same manner as if it was parked in the driveway. You need a search warrant here. The appurtenant garage is part of the home and the fact the garage door is open does not diminish residential expectation of privacy (U.S. v. Oaxaca (2000) 233 F3d 1154).

   So what’s next? Maybe an “Auto Exception” search of autonomous vehicle or a drone!

   Thank you for your service and stay safe!

RH