Let Me Count the Ways – Vehicle Searches

by the Honorable H. Lee Harrell, Circuit Court Judge, 27th Judicial Circuit of Virginia

Vehicle searches are a fertile field for law-enforcement. It is not at all uncommon for what starts as a speeding citation to end as a felony arrest for possession with intent to distribute.  Though many of the rules related to vehicle searches are closing in on centenarian status, they continue to evolve.  Let’s take a look at the major types of vehicle searches:

The Probable Cause Search

This is more typically known as “The Carroll Doctrine” or the automobile exception, but I find that to be a useless and non-descriptive name.  Derived from Carroll v. United States, 267 U.S. 132 (1925), the probable cause search recognized the strong association between vehicles and criminal enterprise. Carroll created a simple, bright-line, roadside rule for law enforcement:  so long as there is probable cause to believe a vehicle contains evidence of a crime, an officer can search the entirety of the vehicle. This search knows few bounds, and even includes containers belonging to the vehicle’s passengers.  California v. Acevedo, 498 U.S. 807 (1990).  More recent cases have made it clear that the only exigent circumstance necessary to justify this exception to the warrant requirement is that the vehicle be readily mobile.  Pennsylvania v. Labron, 518 U.S. 938 (per curiam, 1996).

Why do we call this an exception? Probable cause is still required, so how is this different?  We know that prior to the search of personal property, there are two requirements:  probable cause and a search warrant issued by a neutral magistrate.  In Carroll, the Supreme Court carved out an exception for vehicles that alleviated law-enforcement from obtaining a search warrant. Only probable cause that the vehicle contains evidence is needed. This departure was deemed necessary because of the unique mobility ascribed to vehicles.

Although the rule itself is considered settled law, the sufficiency of the facts used justify a finding of probable cause are often put to the appellate test.  For instance, in Curley v. Commonwealth, Va. 170732 (July 26, 2018), the Virginia Supreme Court reminded us that reviewing courts cannot take a “divide and conquer” approach when looking at the facts that support the probable cause used to justify a vehicle search.  Although each individual fact may, in isolation, have a wholly-lawful explanation for its existence, all of the facts must be taken together and viewed in the circumstances as presented to the officer on the side of the road.

The Search Incident to Arrest

In the panoply of vehicle searches, none has undergone more change. The notion that law enforcement could search a vehicle’s passenger cabin following an occupant’s arrest emerged in New York v. Belton, 453 U.S. 454 (1981). Here, the Supreme Court stated, “[a]ccordingly, we hold that when a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”  Id. at 460. Following Belton, conventional wisdom was that law enforcement could search the interior of a vehicle whenever someone was arrested out of the vehicle.  This was a widely-used practice until 2009, when things changed.

Arizona v. Gant, 556 U.S. 332 (2009) significantly altered our understanding of Belton and put extensive limits on these types of searches.  In the opinion, the U.S. Supreme Court ruled that the searches Belton contemplated had been overextended. The Court placed new restrictions on searches incident to arrest. An officer is entitled to search a vehicle incident to arrest only:

  1. If it is reasonable to believe the arrestee might gain access to the vehicle’s interior (it is fairly difficult to articulate how this could ever occur); and
  2. If it is reasonable to believe that the interior of the vehicle contains evidence of the crime for which the occupant was arrested.

These limitations of Gant drastically curtailed the types of searches that law-enforcement and lawyer believed were valid.  Nevertheless, a passenger-cabin-search-incident-to-arrest was upheld shortly after Gant in Armstead v. Commonwealth, 56 Va. App. 569 (2010). In Armstead, the Virginia Court of Appeals upheld the validity of a vehicle search after the Defendant/Driver had been arrested for providing false identifying information. Relying on Gant, the Court held that it was not unreasonable to search the vehicle’s cabin under the second exception. The vehicle may have contained evidence related to the Defendant’s use of a false identity.

The Weapons Frisk

A law-enforcement officer who possesses reasonable, articulable suspicion that a vehicle contains a dangerous weapon is free to “frisk” the passenger compartment of the vehicle.  This is analogous to a Terry frisk of a person reasonably thought to be armed. The rule was developed in Michigan v. Long, 463 U.S. 1032 (1983). This type of search, unlike the Probable Cause Search, is limited. Only areas that could reasonably contain a weapon are subject to the search. Virginia appellate courts have held law-enforcement to this limitation. Opening a container that may contain a weapon during such a weapons frisk is allowed.  Phillips v. Commonwealth, 17 Va. App. 27 (1993). Opening a container that may contain narcotics during a weapons frisk is not lawful.  Harris v. Commonwealth, 241 Va. 146 (1991).

The Inventory

You will note that the word “search” is not part of that title.  That is intentional; this is not meant to be a search.  South Dakota v. Opperman, 428 U. S. 364 (1976) taught us the rules of this procedure.  An inventory may only be conducted when a vehicle is lawfully impounded. It is intended to protect law-enforcement from subsequent claims of theft or damage. This case also makes clear that such an inventory cannot be used as a ruse to justify a search for contraband.

A recent Virginia case, Cantrell v. Commonwealth, 65 Va. App. 53 (2015), explains that an inventory must be conducted pursuant to the confines of a written departmental policy. No search warrant is required so long as the inventory is properly conducted and done for the bona fide purpose of documenting and securing the property contained in the vehicle. Cantrell also explains that contraband found in the course of such a search can be admissible in a subsequent prosecution.

The Administrative Search

This is likely the narrowest of all vehicle searches. It exists for the sole purpose of locating a vehicle identification number (VIN). It emerged as a constitutional exception to the Fourth Amendment in New York v. Class, 475 U.S. 106 (1986), where an officer opened a vehicle door and moved some papers to enable himself to read the VIN.  The Supreme Court held that if the vehicle is lawfully stopped, law-enforcement has authority to conduct this very limited search.  Of course, merely opening a vehicle’s door may lead to the development of further suspicion.

The Community Caretaker Exception

This is another narrow exception to the warrant requirement that is confined to motor vehicles. In the event that law enforcement has a reasonable belief that a motor vehicle contains a dangerous implement that could endanger the public if left unattended, they may remove the dangerous implement for safekeeping.  Cady v. Dombroski, 413 U.S. 433 (1973).  As with the inventory, this procedure must not be used as a ruse to search for evidence or contraband.

Law-enforcement has at its disposal a potent array of tools that can be used to search a vehicle without a search warrant and, in some cases, without probable cause.  Selecting the appropriate tool based on the circumstances, the level of suspicion and the subject of the search is critical.  A failure to abide by the requirements and strictures of the various kinds of searches can result in exclusion of evidence.

N.B.:  You may be wondering about canine sniffs that occur when a dog is brought to the scene of a detained vehicle.  In Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court explained that there is no expectation of privacy in the air and emissions coming from our vehicles. Accordingly, such sniffs are not searches.  Besides, if we got into the use of canines at vehicle stops you would run out of time, and I would run out of ink.  We will save that for an upcoming issue.