On July 24, 1967, law enforcement officers interviewed
respondent in connection with a murder that had occurred five days
before and viewed his automobile, which was thought to have been
used in the commission of the crime. On October 10, in response to
a previous request, respondent appeared at 10 a.m. for questioning
at the office of the investigating authorities, having left his car
at a nearby public commercial parking lot. Though the police had
secured a warrant for respondent's arrest at 8 a.m., respondent was
not arrested until late in the afternoon, after which his car was
towed to a police impoundment lot, where a warrantless examination
the next day of the outside of the car revealed that a tire matched
the cast of a tire impression made at the crime scene and that
paint samples taken from respondent's car were not different from
foreign paint on the fender of the victim's car. Respondent was
tried and convicted of the murder, and his conviction was affirmed
on appeal. In a subsequent habeas corpus proceeding, the District
Court concluded that the seizure and examination of respondent's
car violated the Fourth and Fourteenth Amendments and that the
evidence obtained therefrom should have been excluded at the trial.
The Court of Appeals affirmed, concluding that the scraping of
paint from the car's exterior was a search within the meaning of
the Fourth Amendment; that the search, which was not incident to
respondent's arrest, was unconsented; and that the car's seizure
could not be justified on the ground that the car was an
instrumentality of the crime in plain view.
Held: The judgment is reversed. Pp.
417 U. S.
585-596.
476 F.2d 467, reversed.
MR. JUSTICE BLACKMUN, joined by THE CHIEF JUSTICE, MR. JUSTICE
WHITE, and MR. JUSTICE REHNQUIST concluded that:
1. The examination of the exterior of respondent's automobile
upon probable cause was reasonable, and invaded no right of privacy
that the requirement of a search warrant is meant to protect. Pp.
417 U. S.
588-592.
Page 417 U. S. 584
(a) The primary object of the Fourth Amendment is the protection
of privacy.
Warden v. Hayden, 387 U.
S. 294,
387 U. S.
305-306. P.
417 U. S.
589.
(b) Generally, less stringent warrant requirements are applied
to vehicles than to homes or offices,
Carroll v. United
States, 267 U. S. 132;
Chambers v. Maroney, 399 U. S. 42, and
the search of a vehicle is less intrusive and implicates a lesser
expectation of privacy. Pp.
417 U. S.
589-591.
(c) The "search" in this case, concededly made on the basis of
probable cause, infringed no expectation of privacy. Pp.
417 U. S.
591-592.
2. Under the circumstances of this case, the seizure by
impounding the car was not unreasonable. Pp.
417 U. S.
592-596.
(a) The vehicle was seized from a public place, where access was
not meaningfully restricted.
Chambers v. Maroney, supra,
followed;
Coolidge v. New Hampshire, 403 U.
S. 443, distinguished. Pp.
417 U. S.
593-595.
(b) Exigent circumstances justifying a warrantless search of a
vehicle are not limited to situations where probable cause is
unforeseeable and arises only at the time of arrest.
Cf.
Chambers, supra, at
399 U. S. 50-51.
Pp.
417 U. S.
595-596.
MR. JUSTICE POWELL, being of the view that the inquiry of a
federal court on habeas corpus review of a state prisoner's Fourth
Amendment claim should be confined solely to the question whether
the defendant had an opportunity in the state courts to raise that
claim and have it adjudicated fairly, would reverse the judgment of
the Court of Appeals, since respondent does not contend that he was
denied that opportunity.
See Schneckloth v. Bustamonte,
412 U. S. 218,
412 U. S. 250
(POWELL, J., concurring). P.
417 U. S.
596.
BLACKMUN, J., announced the Court's judgment and delivered an
opinion, in which BURGER, C.J., and WHITE and REHNQUIST, JJ.,
joined. Powell, J., filed an opinion concurring in the result,
post, p.
417 U. S. 596.
STEWART, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN,
and MARSHALL, JJ., joined,
post, p.
417 U. S.
596.
Page 417 U. S. 585
MR. JUSTICE BLACKMUN announced the judgment of the Court and an
opinion in which the CHIEF JUSTICE, MR. JUSTICE WHITE, and MR.
JUSTICE REHNQUIST join.
This case presents the issue of the legality, under the Fourth
and Fourteenth Amendments, of a warrantless seizure of an
automobile and the examination of its exterior at a police
impoundment area after the car had been removed from a public
parking lot.
Evidence obtained upon this examination was introduced at the
respondent's state court trial for first-degree murder. He was
convicted. The Federal District Court, on a habeas corpus
application, ruled that the examination was a search violative of
the Fourth and Fourteenth Amendments.
354 F. Supp.
26 (SD Ohio 1972). The United States Court of Appeals for the
Sixth Circuit affirmed. 476 F.2d 467 (1973). We granted certiorari,
414 U.S. 1062 (1973), and now conclude that, under the
circumstances of this case, there was no violation of the
protection afforded by the Amendments.
I
In 1968, respondent Arthur Ben Lewis, Jr., was tried and
convicted by a jury in an Ohio state court for the first-degree
murder of Paul Radcliffe. On appeal, the Supreme Court of Ohio
affirmed the judgment of conviction.
State v. Lewis, 22
Ohio St.2d 125, 258 N.E.2d 445 (1970). This Court denied review.
Lewis v. Ohio, 400 U.S. 959 (1970).
Page 417 U. S. 586
On respondent's federal habeas application, the District Court,
from the record and after an evidentiary hearing, adduced the
following facts:
On the afternoon of July 19, 1967, Radcliffe's body was found
near his car on the banks of the Olentangy River in Delaware
County, Ohio. The car had gone over the embankment and had come to
rest in brush. Radcliffe had died from shotgun wounds. Casts were
made of tire tracks at the scene, and foreign paint scrapings were
removed from the right rear fender of Radcliffe's automobile.
Within five days of Radcliffe's death, the investigation began
to focus upon respondent Lewis. It was learned that Lewis knew
Radcliffe. Lewis had been negotiating the sale of a business and
had executed a contract of sale. The purchaser, Jack Smith,
employed Radcliffe,. an accountant, to examine Lewis' books. Police
went to Lewis' place of business to question him, and there
observed the model and color of his car in the thought that it
might have been used to push the Radcliffe vehicle over the
embankment. Not until several months later, however, in late
September, was Lewis again questioned. On October 9, he was asked
to appear the next morning at the Office of the Division of
Criminal Activities in Columbus for further interrogation.
On October 10, at 8 am., a warrant for respondent's arrest was
obtained. [
Footnote 1] The
District Court found that at
Page 417 U. S. 587
this time, in addition to probable cause for the arrest, the
police also had probable cause to believe that Lewis' car was used
in the commission of the crime. An automobile similar to his had
been observed leaving the scene; the color of his vehicle was
similar to the color of the paint scrapings from the victim's car;
in a telephone call to Mrs. Smith, made by a person who said he was
Radcliffe but proved not to be, [
Footnote 2] the caller made statements that, if true,
would benefit only Lewis; he had had body repair work done on the
grille, hood, right front fender, and other parts of his car on the
day following the crime; and the victim's desk calendar for the day
of his death showed the notation, "Call Ben Lewis." [
Footnote 3]
Respondent Lewis complied with the request to appear. He drove
his car to the Activities Office, placed it in a public commercial
parking lot a half block away, and arrived shortly after 10 a.m.
Although the police were in possession of the arrest warrant for
the entire period that Lewis was present, he was not served with
that warrant or arrested until late that, afternoon, at
approximately 5 p.m. Two hours earlier, Lewis had been permitted to
call his lawyer, and two attorneys were present on his behalf in
the office at the time of the formal arrest. Upon the arrest,
Lewis' car keys and the parking lot claim check were released to
the police. A tow truck
Page 417 U. S. 588
was dispatched to remove the car from the parking lot to the
police impoundment lot.
The impounded car was examined the next day by a technician from
the Ohio Bureau of Criminal Investigation. The tread of its right
rear tire was found to match the cast of a tire impression made at
the scene of the crime. [
Footnote
4] The technician testified that, in his opinion, the foreign
paint on the fender of Radcliffe's car was not different from the
paint samples taken from respondent's vehicle, that is, there was
no difference in color, texture, or order of layering of the
paint.
The District Court concluded that the seizure and examination of
Lewis' car were violative of the Fourth and Fourteenth Amendments,
and that the evidence obtained therefrom should have been excluded
at the state court trial. The court, accordingly, issued a writ of
habeas corpus requiring the State to "initiate action for a new
trial of" respondent within 90 days or, in the alternative, to
release him. 354 F. Supp. at 44. The Court of Appeals, in
affirming, held that the scraping of paint from the exterior of
Lewis' car was, in fact, a search within the meaning of the Fourth
Amendment; that there was no consent to that search; that it was
not incident to Lewis' arrest; and that the seizure of the car
could not be justified on the ground that the vehicle was an
instrumentality of the crime in plain view.
II
This case is factually different from prior car search cases
decided by this Court. The evidence with which we are concerned is
not the product of a "search" that implicates
Page 417 U. S. 589
traditional considerations of the owner's privacy interest. It
consisted of paint scrapings from the exterior and an observation
of the tread of a tire on an operative wheel. The issue, therefore,
is whether the examination of an automobile's exterior upon
probable cause invades a right to privacy which the interposition
of a warrant requirement is meant to protect. This is an issue this
Court has not previously addressed.
The common law notion that a warrant to search and seize is
dependent upon the assertion of a superior government interest in
property,
see, e.g., Entick v. Carrington, 19 How.St.Tr.
1029, 1066 (1765), and the proposition that a warrant is valid
"only when a primary right to such search and seizure may be
found in the interest which the public or the complainant may have
in the property to be seized, or in the right to the possession of
it,"
Gouled v. United States, 255 U.
S. 298,
255 U. S. 309
(1921), were explicitly rejected as controlling Fourth Amendment
considerations in
Warden v. Hayden, 387 U.
S. 294,
387 U. S.
302-306 (1967). Rather than property rights, the primary
object of the Fourth Amendment was determined to be the protection
of privacy.
Id. at
387 U. S.
305-306. And it had been said earlier:
"The decisions of this Court have time and again underscored the
essential purpose of the Fourth Amendment to shield the citizen
from unwarranted intrusions into his privacy."
Jones v. United States, 357 U.
S. 493,
357 U. S. 498
(1958).
See also Schmerber v. California, 384 U.
S. 757,
384 U. S.
769-770 (1966);
Katz v. United States,
389 U. S. 347,
389 U. S. 350
(1967);
United States v. Dionisio, 410 U. S.
1,
410 U. S. 14-15
(1973).
At least since
Carroll v. United States, 267 U.
S. 132 (1925), the Court has recognized a distinction
between the warrantless search and seizure of automobiles or other
movable vehicles, on the one hand, and the search of a home or
office, on the other. Generally, less stringent
Page 417 U. S. 590
warrant requirements have been applied to vehicles. In
Chambers v. Maroney, 399 U. S. 42,
399 U. S. 49
(1970), the Court chronicled the development of car searches and
seizures. [
Footnote 5] An
underlying factor in the
Carroll-Chambers line of
decisions has been the exigent circumstances that exist in
connection with movable vehicles.
"[T]he circumstances that furnish probable cause to search a
particular auto for particular articles are most often
unforeseeable; moreover, the opportunity to search is fleeting,
since a car is readily movable."
Chambers v. Maroney, 399 U.S. at
399 U. S. 50-51.
This is strikingly true where the automobile's owner is alerted to
police intentions and, as a consequence, the motivation to remove
evidence from official grasp is heightened.
There is still another distinguishing factor.
"The search of an automobile is far less intrusive on the rights
protected by the Fourth Amendment than the search of one's person
or of a building."
Almeida-Sanchez v. United States, 413 U.
S. 266,
413 U. S. 279
(1973) (POWELL, J., concurring). One has a lesser expectation of
privacy in a motor vehicle because its function is transportation
and it seldom serves as one's residence or as the repository of
personal effects. A car has little capacity for escaping public
scrutiny. It travels public thoroughfares where both its occupants
and its contents are in plain view.
See People v. Case,
220 Mich. 379, 388-389,
Page 417 U. S. 591
190 N.W. 289, 292 (122). "What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth
Amendment protection."
Katz v. United States, 389 U.S. at
389 U. S. 351;
United States v. Dionisio, 410 U.S. at
410 U. S. 14.
This is not to say that no part of the interior of an automobile
has Fourth Amendment protection; the exercise of a desire to be
mobile does not, of course, waive one's right to be free of
unreasonable government intrusion. But insofar as Fourth Amendment
protection extends to a motor vehicle, it is the right to privacy
that is the touchstone of our inquiry.
In the present case, nothing from the interior of the car and no
personal effects, which the Fourth Amendment traditionally has been
deemed to protect, were searched or seized and introduced in
evidence. [
Footnote 6] With the
"search" limited to the examination of the tire on the wheel and
the taking of paint scrapings from the exterior of the vehicle left
in the public parking lot, we fail to comprehend what expectation
of privacy was infringed. [
Footnote
7] Stated
Page 417 U. S. 592
simply, the invasion of privacy, "if it can be said to exist, is
abstract and theoretical."
Air Pollution Variance Board v.
Western Alfalfa Corp., 416 U. S. 861,
416 U. S. 865
(1974). Under circumstances such as these, where probable cause
exists, a warrantless examination of the exterior of a car is not
unreasonable under the Fourth and Fourteenth Amendments. [
Footnote 8]
Here, it has been established and is conceded that the police
had probable cause to search Lewis' car. An automobile similar in
color and model to his car had been seen leaving the scene of the
crime. This similarity was corroborated by comparison of the paint
scrapings taken from the victim's car with the color and paint of
Lewis' automobile. Lewis had had repair work done on his car
immediately following the death of the victim. And he had a nexus
with Radcliffe on the day of death. All this provided reason to
believe that the car was used in the commission of the crime for
which Lewis was arrested.
Cooper v. California,
386 U. S. 58,
386 U. S. 61
(1967).
III
Concluding, as we have, that the examination of the exterior of
the vehicle upon probable cause was reasonable,
Page 417 U. S. 593
we have yet to determine whether the prior impoundment of the
automobile rendered that examination a violation of the Fourth and
Fourteenth Amendments. We do not think that, because the police
impounded the car prior to the examination, which they could have
made on the spot, there is a constitutional barrier to the use of
the evidence obtained thereby. Under the circumstances of this
case, the seizure itself was not unreasonable.
Respondent asserts that this case is indistinguishable from
Coolidge v. New Hampshire, 403 U.
S. 443 (1971). We do not agree. The present case differs
from
Coolidge both in the scope of the search [
Footnote 9] and in the circumstances of
the seizure. Since the
Coolidge car was parked on the
defendant's driveway, the seizure of that automobile required an
entry upon private property. Here, as in
Chambers v.
Maroney, 399 U. S. 42
(1970), the automobile was seized from a public place where access
was not meaningfully restricted. This is, in fact, the ground upon
which the
Coolidge plurality opinion distinguished
Chambers, 403 U.S. at
403 U. S. 463
n. 20.
See also Cady v. Dombrowski, 413 U.
S. 433,
413 U. S.
446-447 (1973).
In considering whether the lack of a warrant to seize a vehicle
invalidates the otherwise legal examination of the car,
Chambers is highly pertinent. In
Chambers, four
men in an automobile were arrested shortly after an armed robbery.
The Court concluded that there was probable cause to arrest and
probable cause to search the vehicle. The car was taken from the
highway to
Page 417 U. S. 594
the police station where, some time later, a search producing
incriminating evidence, was conducted. We stated:
"For constitutional purposes, we see no difference between, on
the one hand, seizing and holding a car before presenting the
probable cause issue to a magistrate, and, on the other hand,
carrying out an immediate search without a warrant. Given probable
cause to search, either course is reasonable under the Fourth
Amendment."
". . . The probable cause factor still obtained at the station
house, and so did the mobility of the car unless the Fourth
Amendment permits a warrantless seizure of the car and the denial
of its use to anyone until a warrant is secured. In that event,
there is little to choose in terms of practical consequences
between an immediate search without a warrant and the car's
immobilization until a warrant is obtained."
399 U.S. at
399 U. S.
52.
The fact that the car in
Chambers was seized after
being stopped on a highway, whereas Lewis' car was seized from a
public parking lot, has little, if any, legal significance.
[
Footnote 10] The same
arguments and considerations of exigency, immobilization on the
spot, and posting a
Page 417 U. S. 595
guard obtain. In fact, because the interrogation session ended
with awareness that Lewis had been arrested and that his car
constituted incriminating evidence, the incentive and potential for
the car's removal substantially increased. There was testimony at
the federal hearing that Lewis asked one of his attorneys to see
that his wife and family got the car, and that the attorney
relinquished the keys to the police in order to avoid a physical
confrontation. 354 F. Supp. at 33. In
Chambers, all
occupants of the car were in custody and there were no means of
relating this fact or the location of the car (if it had not been
impounded) to a friend or confederate.
Chambers also
stated that a search of the car on the spot was impractical because
it was dark and the search could not be carefully executed. 399
U.S. at
399 U. S. 52 n.
10. Here too, the seizure facilitated the type of close examination
necessary. [
Footnote 11]
Respondent contends that here, unlike
Chambers,
probable cause to search the car existed for some time prior to
arrest and that, therefore, there were no exigent circumstances.
Assuming that probable cause previously existed, we know of no case
or principle that suggests that the right to search on probable
cause and the reasonableness of seizing a car under exigent
circumstances are foreclosed if a warrant was not obtained at the
first practicable moment. Exigent circumstances with regard to
vehicles are not limited to situations where probable cause is
unforeseeable and arises only at the time of arrest.
Cf.
Chambers, id., at
399 U. S. 50-51.
The exigency may arise at any time, and the fact that the police
might have obtained
Page 417 U. S. 596
a warrant earlier does not negate the possibility of a current
situation's necessitating prompt police action. [
Footnote 12] The judgment of the Court of
Appeals is reversed.
It is so ordered.
[
Footnote 1]
The arrest warrant was obtained in Delaware County, where the
crime was committed. The Activities Office is in adjacent Franklin
County. In Ohio, an arrest warrant may be served in any county of
the State. Ohio Rev.Code Ann. § 2941.36 (1953). In contrast, a
search warrant in Ohio may be issued by a judge or magistrate only
"within his jurisdiction." Ohio Rev.Code Ann. § 2933.21 (Supp.
1972). Thus, a search warrant obtained in Delaware County is not
valid in Franklin County.
[
Footnote 2]
The call was made at about 9:30 a.m. on July 19 by a man who
identified himself to Mrs. Smith as Radcliffe and who stated that
the books were in "A-1 condition." Mrs. Smith, who knew the victim,
did not identify the caller as Radcliffe. Gunshots were heard
between 8 a.m. and 8:30 a.m. that day by two women who lived near
the site of the crime. It thus became clear that someone had
impersonated Radcliffe in making the telephone call.
[
Footnote 3]
The calendar's page for July 19 was missing. Investigation
disclosed a writing indentation, on the next and underlying page
for July 20, which indicated what had been written on the page for
July 19.
[
Footnote 4]
Apparently, the car's trunk was also opened and a tire in the
trunk was observed.
354 F. Supp.
26, 33; 476 F.2d 467, 468. No evidence obtained from any part
of the interior of the vehicle, however, was introduced.
[
Footnote 5]
The Court there discussed the following post-
Carroll
cases:
Husty v. United States, 282 U.
S. 694 (1931);
Scher v. United States,
305 U. S. 251
(1938);
Brinegar v. United States, 338 U.
S. 160 (1949);
Preston v. United States,
376 U. S. 364
(1964);
Cooper v. California, 386 U. S.
58 (1967);
Dyke v. Taylor Implement Mfg. Co.,
391 U. S. 216
(1968). Cases decided since
Chambers and that now might be
added to the list include
Coolidge v. New Hampshire,
403 U. S. 443
(1971);
Almeida-Sanchez v. United States, 413 U.
S. 266 (1973);
Cady v. Dombrowski, 413 U.
S. 433 (1973).
See also Harris v. United
States, 390 U. S. 234
(1968); Note, Warrantless Searches and Seizures of Automobiles, 87
Harv.L.Rev. 835 (1974).
[
Footnote 6]
Petitioner contends that Lewis' car keys and the parking lot
claim check were seized in plain view as an incident to his arrest,
and that this seizure served to transfer constructive possession of
the vehicle which could then be searched and seized as an
instrumentality of the crime. We feel that the District Court and
the Court of Appeals were correct in rejecting this argument.
Irrespective of the plain view or instrumentality analyses, the
concept of constructive possession has not been found to justify
the search or seizure of an item not in actual possession.
[
Footnote 7]
As has been noted, the arrest was made at the Office of the
Division of Criminal Activities; but the examination of the vehicle
took place some time later at the police impoundment lot. This
difference in time and place eliminates any "search incident to an
arrest" contention.
"The rule allowing contemporaneous searches is justified, for
example, by the need to seize weapons and other things which might
be used to assault an officer or effect an escape, as well as by
the need to prevent the destruction of evidence of the crime --
things which might easily happen where the weapon or evidence is on
the accused's person or under his immediate control. But these
justifications are absent where a search is remote in time or place
from the arrest. Once an accused is under arrest and in custody,
then a search made at another place, without a warrant, is simply
not incident to the arrest."
Preston v. United States, 376 U.
S. 364,
376 U. S. 367
(1964).
See also Chambers v. Maroney, 399 U. S.
42,
399 U. S. 47
(1970).
[
Footnote 8]
Again, we are not confronted with any issue as to the propriety
of a search of a car's interior.
"Neither
Carroll, supra, nor other cases in this Court
require or suggest that, in every conceivable circumstance the
search of an auto even with probable cause may be made without the
extra protection for privacy that a warrant affords."
Id. at
399 U. S.
50.
[
Footnote 9]
Coolidge concerned a thorough and extensive search of
the entire automobile, including the interior from which, by vacuum
sweepings, incriminating evidence was obtained. A search of that
kind raises different and additional considerations not present in
the examination of a tire on an operative wheel and in the taking
of exterior paint samples from the vehicle in the present case, for
which there was no reasonable expectation of privacy.
[
Footnote 10]
Before the District Court, the State argued that Lewis had
consented to the seizure of his car by requesting that the police
impound it for safekeeping. The District Court stated:
"Viewing the evidence in the light most favorable to the State,
petitioner [Lewis] did not clearly and unequivocally consent to the
seizure and search of the automobile. The testimony . . .
established, at most, that petitioner consented to their taking
custody of the car for safekeeping. There is no evidence that
petitioner consented, expressly or impliedly, to a seizure of the
automobile for purposes of a search. . . ."
354 F. Supp. at 37-38. Inasmuch as we hold the seizure to be
justified under
Chambers, we do not reach the issue of
Lewis' consent.
[
Footnote 11]
To make a comparison with a paint scraping required that a
section of the painted exterior that had not been recently repaired
be sampled. This conceivably could necessitate several scrapings if
the first sample was not conclusive after laboratory analysis.
Similarly, to make a cast of the tire tread on the operative wheel
would require laboratory equipment.
[
Footnote 12]
We do not address the question found to be determinative in MR.
JUSTICE POWELL's opinion concurring in the result. This question
was not raised or briefed by the parties.
MR. JUSTICE POWELL, concurring in the result.
I would reverse the judgment of the Court of Appeals for the
reasons set forth in my concurring opinion in
Schneckloth v.
Bustamonte, 412 U. S. 218,
412 U. S. 250
(1973). As stated therein, I would hold that
"federal collateral review of a state prisoner's Fourth
Amendment claims -- claims which rarely bear on innocence -- should
be confined solely to the question of whether the petitioner [for
habeas corpus] was provided a fair opportunity to raise and have
adjudicated the question in state courts."
Ibid. In this case, there is no contention that
respondent was denied a full and fair opportunity to litigate his
claim in the state courts.
MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
The most fundamental rule in this area of constitutional law is
that
"searches conducted outside the judicial process, without prior
approval by judge or magistrate, are
per se unreasonable
under the Fourth Amendment -- subject only to a few specifically
established and well delineated exceptions."
Katz v. United States, 389 U.
S. 347,
389 U. S. 357;
Coolidge v. New Hampshire, 403 U.
S. 443,
403 U. S.
454-455.
See also Camara v. Municipal Court,
387 U. S. 523,
387 U. S.
528-529. Since there was no warrant authorizing
Page 417 U. S. 597
the search and seizure in this case, and since none of the
"specifically established and well delineated exceptions" to the
warrant requirement here existed, I am convinced the judgment of
the Court of Appeals must be affirmed. [
Footnote 2/1]
In casting about for some way to avoid the impact of our
previous decisions, the plurality opinion first suggests,
ante at
417 U. S.
588-589, that no "search" really took place in this
case, since all that the police did was to scrape paint from the
respondent's car and make observations of its tires. Whatever merit
this argument might possess in the abstract, it is irrelevant in
the circumstances disclosed by this record. The argument is
irrelevant for the simple reason that the police, before taking the
paint scrapings and looking at the tires, first took possession of
the car itself. The Fourth and Fourteenth Amendments protect
against "unreasonable searches and seizures," and there most
assuredly was a seizure here.
The plurality opinion next seems to suggest that the basic
constitutional rule can be overlooked in this case because the
subject of the seizure was an automobile. It is true, of course,
that a line of decisions, beginning with
Carroll v. United
States, 267 U. S. 132,
have recognized a so-called "automobile exception" to the
constitutional requirement of a warrant. But "[t]he word
automobile' is not a talisman in whose presence the Fourth
Amendment fades away and disappears." Coolidge, supra, at
403 U. S.
461-462. Rather, the Carroll doctrine simply
recognizes the obvious -- that a moving automobile on the open road
presents a situation
"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
Page 417 U. S. 598
warrant must be sought."
Carroll, supra, at
267 U. S. 153.
See also Almeida-Sanchez v. United States, 413 U.
S. 266,
413 U. S. 269.
Where there is no reasonable likelihood that the automobile would
or could be moved, the
Carroll doctrine is simply
inapplicable.
See, e.g., Coolidge, supra; Preston v. United
States, 376 U. S. 364.
The facts of this case make clear beyond peradventure that the
"automobile exception" is not available to uphold the warrantless
seizure of the respondent's car. Well before the time that the
automobile was seized, the respondent -- and the keys to his car --
were securely within police custody. There was thus absolutely no
likelihood that the respondent could have either moved the car or
meddled with it during the time necessary to obtain a search
warrant. And there was no realistic possibility that anyone else
was in a position to do so, either. I am at a loss, therefore, to
understand the plurality opinion's conclusion,
ante at
417 U. S. 595,
that there was a "potential for the car's removal" during the
period immediately preceding the car's seizure. The facts of record
can only support a diametrically opposite conclusion.
Finally, the plurality opinion suggests that other "exigent
circumstances" might have excused the failure of the police to
procure a warrant. The opinion nowhere states what these mystical
exigencies might have been, and counsel for the petitioner has not
been so inventive as to suggest any. [
Footnote 2/2] Since the authorities had taken care to
procure an arrest warrant even before the respondent
Page 417 U. S. 599
arrived for questioning, it can scarcely be said that probable
cause was not discovered until so late a point in time as to
prevent the obtaining of a warrant for seizure of the automobile.
And, with the automobile effectively immobilized during the period
of the respondent's interrogation, the fear that evidence might be
destroyed was hardly an exigency, particularly when it is
remembered that no such fear prompted a seizure during all the
preceding months while the respondent, though under investigation,
had been in full control of the car. [
Footnote 2/3] This is, quite simply, a case where no
exigent circumstances existed. [
Footnote 2/4]
Until today, it has been clear that
"[n]either
Carroll . . . nor other cases in this Court
require or suggest that, in every conceivable circumstance the
search of an auto even with probable cause may be made without the
extra protection for privacy that a warrant affords."
Chambers v. Maroney, 399 U. S. 42,
399 U. S. 50. I
would follow the settled constitutional law established in our
decisions and affirm the Judgment of the Court of Appeals.
Page 417 U. S. 600
[
Footnote 2/1]
This dissent is directed toward the search and seizure analysis
in MR. JUSTICE BLACKMUN's plurality opinion. Like the plurality, I
do not consider the issue raised by MR. JUSTICE POWELL's
concurrence, it having been neither briefed nor argued by the
parties.
[
Footnote 2/2]
Even the Solicitor General, who appeared as
amicus
curiae urging a reversal of the Court of Appeals' judgment in
this case, has candidly admitted in his brief that
"no satisfactory reason appears for the failure of the law
enforcement officers to have obtained a warrant -- there appears on
the facts of this case to have been no real likelihood that
respondent would have destroyed or concealed the evidence sought
during the time required to seek and procure a warrant."
Brief for United States as
Amicus Curiae 5.
[
Footnote 2/3]
It can hardly be argued that the questioning of the respondent
by the police for the first time alerted him to their intentions,
thus suddenly providing him a motivation to remove the car from
"official grasp."
Ante at
417 U. S. 590,
417 U. S. 595.
Even putting to one side the question of how the respondent could
have acted to destroy any evidence while he was in police custody,
the fact is that he was fully aware of official suspicion during
several months preceding the interrogation. He had been questioned
on several occasions prior to his arrest, and he had been alerted
on the day before the interrogation that the police wished to see
him. Nonetheless, he voluntarily drove his car to Columbus to keep
his appointment with the investigators.
[
Footnote 2/4]
The plurality opinion correctly rejects,
ante at
417 U. S.
591-592, n. 7, the petitioner's contention that the
seizure here was incident to the arrest of the respondent. "Once
the accused is under arrest and in custody, then a search made at
another place, without a warrant, is simply not incident to the
arrest."
Preston v. United States, 376 U.
S. 364,
376 U. S.
367.