Mobile Conveyance (podcast transcript)
Miller: Jenna, we’ve talked about places where people normally have a reasonable expectation of privacy. They can normally expect a very high reasonable expectation of privacy in their body and in their homes. To search those places, officers or agents normally need a warrant, supported by probable cause. However, the Supreme Court has created a special exception to the warrant requirement for a mobile conveyance. Why is that?
Solari: Well there are two reasons why officers typically don’t need a search warrant for mobile conveyance. Now think about what mobile conveyance means - these are cars, trucks, airplanes and boats. People have a reduced expectation of privacy in these means of transportation. They are highly regulated. We have to be licensed to drive. The car has to be registered. In a lot of states, the car has to be inspected. There’s even a vehicle identification number next to the windshield that’s there for people, like police officers, to see. And second, motor vehicles are mobile. The vehicle might be driven off by the suspect while the police are attempting to obtain a search warrant.
Miller: Something tells me that an officer still can’t search a vehicle whenever he just feels like it.
Solari: That would be a correct assumption. Officers can’t go inside the passenger compartment of a car or just pop the truck whenever they feel like it. There are three requirements that have to be met in order to search a vehicle. First, the vehicle has to be in a public place. The mobile conveyance exception to the warrant requirement doesn’t apply if the car is in a garage or on the curtilage of a home. Second, the vehicle has to be readily mobile. This means the vehicle must appear to be operational to a reasonable person; however, it’s not necessary that the vehicle be moving or even occupied.
Miller: Now what about motor homes?
Solari: Well, motor homes or mobile homes can still be readily mobile even when they’re being used as a residence. There are a lot of factors to consider though in deciding whether any vehicle is readily mobile. For example, a RV in a parking lot next to a public street would appear readily mobile. On the other hand, I’d probably draw a different conclusion if that vehicle was sitting in a driveway and up on blocks. Another thing to consider is whether it’s licensed? If so, it’s more likely to be readily mobile. People don’t usually go through the time and the expense of licensing a vehicle that’s not operational. However, a licensed RV connected to utilities and up on blocks would still appear to be not readily mobile.
Miller: Okay, you mentioned there were three requirements. What’s the third one?
Solari: The third one is that there has to be probable cause to believe that contraband or evidence of a crime will be located in the vehicle. If all three of those requirements we’ve just discussed are met the court will excuse the requirement that the officer obtain a warrant.
Miller: Does the court cut us any breaks on establishing the probable cause?
Solari: No; probable cause is probable cause. Based on the facts and circumstances, would a person of reasonable caution believe that contraband or evidence of a crime is located in the car? Now as we discussed in an earlier podcast, probable cause can be established with a reliable informant who has a basis of knowledge. Also, the officer’s own observations may amount to probable cause. The officer might smell the aroma of burning marijuana in the car or see a plastic bag containing a green leafy substance that he or she recognizes through training and experience to be marijuana.
Miller: It’s not necessary that the officer always collect the evidence establishing the probable cause from the car itself; is it?
Solari: That’s not required; the information that establishes PC could come from somewhere else. Previously you and I talked about the execution of a search warrant inside a drug dealer’s home at 123 Main Street and we found about a kilo of cocaine on his coffee table, in his toilet tank, in an outside shed and some in the attic. So let’s do a little review. If the car we’re talking about was located on the curtilage of 123 Main Street, we could search it under the warrant because the car is a likely hiding place for the evidence.
On the other hand, if the car is not on the curtilage, but instead, is outside on the street, we’re either going to have to get another warrant to search that car or identify an exception to the warrant requirement. We already talked about one exception - consent. The mobile conveyance exception to the warrant requirement is another exception. The car’s on a city street, a public place. It appears readily mobile; that’s that second element we talked about. Finally, assuming we have probable cause to believe the occupant of 123 Main Street is distributing narcotics and we find a kilo of cocaine in the residence, a reasonable person could conclude that the occupant’s car outside might contain more evidence of the crime.
Miller: Once we’ve established there’s probable cause to believe the car contains evidence of a crime, does that mean I can search anywhere I want to in that vehicle?
Solari: No. Now remember this exception merely excuses the requirement for a warrant. It doesn’t relax any of those other rules we talked about. So, once the officer establishes probable cause to believe the car contains evidence of a crime, the officer can search inside the car anywhere that evidence might reasonably be located. So for instances, if the officer had probable cause to believe the car has a 24” television, he could search the passenger compartment and the trunk. Of course, he wouldn’t have probable cause to look inside the car’s console or glove box for a television set.
Miller: I should be able to search just about anywhere I want to, however, in that car that’s located in front of 123 Main Street, right?
Solari: Right. We’re talking about that drug dealer’s car. In that case we have PC to believe that the car contains cocaine because we found a kilo of coke in the house. We’ve also got PC to believe the occupant is a drug distributor, so a reasonable person could believe the dealer’s car outside also contains drugs. Based on those facts, we should be able to search anywhere in the car where there might be a kilo to a gram.
Miller: You’re probably kind of getting tired of these hypotheticals, but I’ve got one. Ah, suppose we see several suitcases. They’re sitting out on the sidewalk in front of a hotel. We have probable cause to believe that a red suitcase has narcotics in it. Can I search that suitcase without a warrant? I think I know the answer here.
Solari: No; not unless you can identify a reasonable exception to the warrant requirement and based on the facts you’ve given me, you haven’t yet done that.
Miller: Okay. What if somebody walks out of the hotel picks up the red suitcase and then puts it in the trunk of a cab?
Solari: Change the facts; change the answer. Then the mobile conveyance exception to the warrant requirement kicks in. The taxi is on a public street. It appears to be readily mobile. Third, we had probable cause to believe that the vehicle contains evidence of a crime. Now we can search that red suitcase for drugs.
However, based on the facts you’ve given me, we can’t search the taxi any further for drugs; at least not under the mobile conveyance exception. Our PC, as you described it to me, lies entirely within that suitcase.
Miller: Let me sum this up. The mobile conveyance exception excuses the warrant requirement; correct?
Miller: It doesn’t excuse the probable cause requirement.
Solari: No; it doesn’t.
Miller: And if an officer wants to examine a container within the car, the officer must have probable cause that the container contains the evidence he looking for; correct?
Miller: Now what about a passenger’s container?
Solari: The Supreme Courts actually doesn’t make any distinction between who owns the container that you find in the car. The focus is entirely on probable cause. Police officers with probable cause to search a car may inspect the passenger’s belongings which are found in the car and are capable of concealing that object that you’re search for.
Miller: Does the Supreme Court require the officer to establish that the passenger is a wrongdoer before searching his or her containers?
Solari: No, and again the focus is entirely on whether the passenger’s bag could conceal the evidence that’s being sought.
Miller: But probable cause to believe the car contains evidence of a crime or contraband does not always give the officer legal justification for searching the passenger’s person; correct.
Miller: And I remember you telling me that the people have a heighten expectation of privacy in their person.
Solari: That’s right. In Wyoming vs Houghton, an officer lawfully stopped a vehicle and while talking to the driver, the officer noticed a syringe in the driver’s pocket. The driver admitted when asked that the syringe was used for taking drugs. That information gave the officer probable cause to search the car for narcotics. In the backseat the officer found the passenger’s purse. The officer looked inside the purse and found more narcotics in there. The court held that the containers of passengers are subject to search. However, the court also held, and this was stressed in one of the concurring opinions, that the same rational does not automatically allow officers to search the body of passengers due to that heightened REP one has in their person.
Miller: What is considered the body or person of a passenger?
Solari: Well in the example I gave you (the Houghton case) if the purse that was found in the car had instead been attached to the passenger’s body in some way (like in her hand or slung over her shoulder) the container would probably have been considered a part of her person. So wallets, knapsacks, or other items attached in some way to the body are usually considered a part of the person.
Miller: But once the officer found the narcotics in the passenger’s purse, he’s got probable cause to believe that she’s in possession of narcotics; correct?
Solari: Yes; that’s right. And of course, you know what happens once the officer arrests the passenger for possession of narcotics?
Miller: Then the officer can conduct a search incident to arrest of the passenger and that would include the containers within her immediate control.
Miller: Additionally had the officer in Wyoming v. Houghton reasonably suspected the passenger was presently armed and dangerous; he could have frisked the passenger and any bags in her person under Terry v. Ohio; right?
Solari: Exactly, that’s right.
Miller: Again, the three requirements for the mobile conveyance exception are that the car be in a public place; that the car be readily mobile; and that there be probable cause to believe the car contains evidence of a crime.
Miller: So the court will not require an officer to get a warrant even, if it’s practical to do so? Is that correct?
Solari: That’s correct. And, it’s up to the officers when they want to conduct the search. They can search the car right there on the street where they find it or they can search the car in the impound lot if that’s necessary. Same is true for packages found inside the car. In United States v. Johns, for instances, customs officers had PC to believe that a vehicle contained marijuana. They removed several packages that they believed contained marijuana and put them in storage. They didn’t open and search the packages for a few days. Although the officers could have obtained a search warrant in that time, the courts still found that the search was good.
Miller: Okay. Let’s take a break and when we come back we’re going to talk about the exigent circumstances that can excuse the warrant requirements.