Diane Beckham
Excerpted from Warrants (TDCAA © 2018), an updated edition available for purchase at www.tdcaa.com.
Several exceptions to the warrant requirement—including the appositely named “vehicle exception,” consent, plain view, and search incident to arrest—may allow search of a vehicle without a warrant. While courts generally prefer that all searches be accomplished with a warrant, the U.S. Constitution mandates only that searches be accomplished reasonably. From this principle, courts have established several exceptions to the warrant requirement for specific situations in which courts have found that requiring officers to obtain a warrant would be unnecessary.
Vehicle exception
Sometimes known as the “automobile exception” or the “Carroll doctrine”1 from the name of the case that first established the exception, this exception revolves around the idea that drivers and occupants of cars have a diminished right of privacy in vehicles, making searches without a warrant reasonable when officers have probable cause to search.
While the amount or level of probable cause is the same as required for a warrant, the Court stopped short of requiring a warrant to search a vehicle because of the exigent circumstances presented by the mobility of the place to be searched (the vehicle). In other words, a suspect could quickly move a vehicle out of the area if the police had to wait for a warrant. Carroll established a two-prong test as a predicate to the warrantless search:
1) probable cause and
2) exigent circumstances.
Time, difficulty of application in complex circumstances, and caselaw eroded Carroll’s second prong and today, the rule is: If a car is readily mobile and probable cause exists to believe it contains contraband, searching it without a warrant is reasonable under the Fourth Amendment (as long as officers do not make an unauthorized entry into a house or curtilage to search it).2
Probable cause must not focus on a specific container within the vehicle but on the vehicle itself as a large container. If the initial probable cause is that contraband is only in a specific container within a vehicle, then a search only of that container is justified.3 If contraband is found during this initially limited search, officers should consider whether it establishes probable cause to continue searching the vehicle. Conversely, if the probable cause is that the contraband is somewhere in the vehicle but its exact location is unknown, a warrantless search of the entire vehicle is permitted with the only limitation being the capacity of a container or cavity to contain the evidence sought.4
Time limits
For some of the warrantless exceptions discussed in this article, officers should be aware of one other issue that has recently received great attention from the courts: the amount of time an officer can detain a vehicle on the road. The rule is that once the original justification for a stop has been completed, the detention must come to an end unless there is reason to suspect an occupant in the vehicle is committing an offense independent of the initial reason for the stop. To continue investigating a suspect, an officer must have developed a reasonable suspicion or probable cause that further criminal activity is afoot.5
Courts have not established a set amount of time beyond which an officer cannot detain a suspect during a temporary detention.6 Instead, courts look to whether the detention went beyond the time reasonably required for a diligent officer to accomplish the objective purpose of the stop.
In the vehicle realm, one recent line of cases on this issue involves K9 sniff cases. If a traffic stop is concluded (e.g., the officer has written a warning or citation and given it to the driver), without evidence to support reasonable suspicion of other criminal conduct, an officer cannot wait for a K9 unit to come and inspect the car.7 Any continued detention will be presumptively unreasonable without different information to justify the ongoing detention. For instance, if an officer has a reasonable suspicion of drug activity, he can prolong the traffic stop to wait for a K9 and can use the K9 to build probable cause to search the vehicle.8
In general, the safest course of action is to presume the Court’s reasoning in Rodriguez applies to any activity—not just dog sniffs—that delays conclusion of the traffic stop after the purpose of the initial stop has been resolved.
Consent
An individual who has a reasonable expectation of privacy in a place to be searched may waive that right and permit law enforcement officials to conduct the search without a warrant (or probable cause).9 Before evidence obtained under the consent exception may be admitted in court, the State must establish:
1) the authority of the consenting person;10
2) a voluntary, informed waiver, free of coercion;11 and
3) the scope of the consent to search.12
If an officer’s request for consent to search addresses a specified area, consent is presumed to be limited to that area. If the limits of a search are not specified, the courts will define the scope by what they believe a reasonable citizen would have understood under the circumstances.13 While not required, the best method to establish the pre- requisites for a consent search is to get them in writing.
In vehicles, the driver is typically the party who can consent to a search. Specific facts can change this presumption, but in most cases a driver’s consent will trump a passenger’s refusal, and a driver’s refusal will trump a passenger’s consent.14 If a person flees from his vehicle, he loses standing to object to its search.15 The scope of a consent search can be the entire vehicle, including opening containers in the vehicle if the officer’s request and the suspect’s consent do not limit the scope of the search.16
Plain view
Experience teaches that more evidence is seized without a warrant—often under circumstances in which seizing officers were not expecting to find it—than pursuant to any other procedure authorizing lawful searches and seizures. When justifying these seizures, officers and prosecutors rely on authority of an exception to the warrant preference known as the plain view doctrine.
This exception comes into play when officers inadvertently discover evidence, thereby disposing of the need to search for it.17 The plain view exception has two requirements: 1) the seizing officer must have a legitimate presence in the place where he is when he first views the evidence; and 2) the item seized must be immediately recognizable or readily apparent as probably being contraband, stolen property, or otherwise useful evidence of a crime.18
Search incident to arrest
If an officer has lawfully placed an individual under full custodial arrest, the officer may search the suspect, the area within the suspect’s immediate control or reach, and containers within the control or reach of the suspect.19 The only prerequisite is that the suspect be arrested lawfully, whether with a warrant or without. “Arrest” in this exception means full custody, not just detention or citation for a traffic offense.20
The scope of a search incident to arrest includes anything within the suspect’s area of possible reach or within his immediate control, including an area from which the suspect might get a weapon or destroy evidence.21 The suspect’s wingspan follows him as he moves, so if officers move the suspect to a new location, officers may search areas within the suspect’s new area of wingspan.22 When searching a vehicle pursuant to this exception, the officer must believe that the vehicle may contain a weapon or evidence of the incident arrest.23 If while performing a search incident to arrest an officer finds evidence of another offense, it may justify an additional or more thorough search.24
Inventories
Inventories are not searches. Unfortunately, the courts often use the term “inventory search,” but it is an oxymoron. By definition, a search in the Fourth Amendment context is a quest for evidence of an offense. An inventory is an administrative procedure designed to identify the presence of property of value for the mutual protection of the owner and others who may have temporary custody of the property.25 The key difference here is temporary custody. Evidence of an offense is seldom returned to the individual from whom it is taken; inventoried property is usually intended to be returned after temporary custody for official purposes.
If the courts determine that an inventory was used as a subterfuge for an otherwise unjustified search, any evidence found will be suppressed. One of the ways to defeat this subterfuge claim is to demonstrate the existence of established procedures and guidelines for inventories under the circumstances related to the case in issue.26
Warrants
In some situations, no warrantless exception will apply to justify a search of a vehicle. For example, the second prerequisite for applicability of the vehicle exception is that the vehicle be “mobile,” the remnant of the original exigency requirement established by Carroll. If the vehicle has been destroyed in a collision, for example, it is no longer mobile, and prudence would suggest a search warrant, notwithstanding certain probable cause.
Another example involving a vehicle search warrant would be when there is potential damage required to search the vehicle, such as removing a part of it (such as a brake system to investigate an intoxication manslaughter or a panel to search for drugs) that would make it advisable for a magistrate to review the decision to disassemble the vehicle.
Depending on the justification for the search, a variety of subsections of Code of Criminal Procedure Art. 18.02(a) can be used to obtain a warrant to search for and seize vehicles or items contained in that vehicle. For instance:
• A search for certain types of contraband (such as an illegal weapon or drugs) that officers have probable cause to believe can be found in the suspect’s vehicle can be subject to a warrant issued under Art. 18.02(a)(1)–(9).
• A search of a vehicle may be justified via a warrant under Art.18.02(a)(10) if officers have probable cause to believe a weapon used in an underlying offense can be found in the suspect’s car, along with blood, clothing, and shoes, or if they need to seize the car’s “black box” to get driving data captured at the time of a crash.
• A warrant to seize a vehicle for forfeiture may be issued under Art.18.02(a)(12) when officers have probable cause to believe the vehicle was used in the commission of an offense for which asset forfeiture is available, such as a drug transaction.
• A search of premises for specific contraband under a warrant issued under Art.18.02(a)(1)–(9) can also include language in the warrant to search vehicles on the premises if it is reasonable to believe the item sought might be inside a vehicle.
Remember, the “vehicle exception” requires probable cause as a predicate. That same probable cause can always be reduced to writing in an affidavit for a search warrant. Doing so routinely, however, sets precedent for ignoring a valuable tool granted to law enforcement by the United States Supreme Court with warrantless exceptions that may apply.
Things inside the vehicle
As discussed above, a number of valid exceptions to the warrant requirement may justify seizing a vehicle and holding it until officers have finished searching all justified places or components of the car. But the better practice is obtaining a warrant when officers hold a vehicle for a protracted period, especially when officers intend to probe, test, examine, and even disassemble the vehicle (as in an impaired driving case). In this situation, it is recommended that officers seek a warrant under Art.18.02(a)(1)–(9) or (a)(10) for searching the car.
Search object: contraband within the vehicle [Art. 18.02(a)(1)–(9)]. Officers may develop probable cause to believe a certain car will contain narcotics. For instance, officers may want to search for packaged drugs by:
• removing the gas tank;
• removing the rims from the tires; or
• tearing the panels off the car to search in hidden spaces.
While a warrantless exception (such as the vehicle exception) may justify searching certain parts of the car during a lawful stop, as the level of intrusiveness into the vehicle increases, officers may want to consider a warrant to gain access to parts that cannot be viewed in plain sight.27 A warrant under Art.18.02(a)(7) could be used to search for drugs, for example.28
Similarly, a warrant under other subsections of Art.18.02(a) could be used to search for other contraband described in (a)(1)–(9).
Search object: non-contraband within a vehicle [Art. 18.02(a)(10)]. Other items that officers may want to seize from a vehicle are not illegal to possess—for instance, a vehicle’s brake system or black box data recorder (to investigate an intoxicated driving crime). In those instances, officers should instead use Art.18.02(a)(10) (for “mere evidence”) to seize potential evidence from a vehicle that is not contraband.29
Subsection (a)(10) warrants serve a unique purpose in criminal case investigations: to find evidence after a crime has been committed and discovered. When investigators can establish a probability that relevant evidence is located at or in a Fourth Amendment-covered site (such as a vehicle), a warrant issued under subsection (a)(10) can be the ideal tool for an officer to go in and remove critical evidence that tends to prove a crime was committed and/or that a particular person has committed a crime.
Art.18.02(a)(10) warrants can be used in vehicle search situations to obtain things such as:
• parts from within a vehicle (such as a brake system or black box recorder) as part of a “vehicle autopsy” to establish evidence to show the suspect was driving while intoxicated when he crashed into another car;
• blood or gunshot residue that might be transferred from a weapon or found on a steering wheel or other locations in the passenger compartment of a car touched by a suspect as evidence that the suspect committed a murder; and
• blood from a DWI suspect.
Note that some items in a vehicle—such as a GPS system or even the car’s stereo system if it can also operate as a computer—might be seized under an 18.02(a)(10) warrant, but searching the contents for digital evidence may also require a court order under Code of Criminal Procedure Art. 18.20 (renumbered as Chapter 18A effective Jan. 1, 2019). Note that warrants issued under Art.18.02(a)(10) and (a)(12) have limitations on which magistrates may sign them.30
Vehicles subject to forfeiture
Code of Criminal Procedure Chapter 59 allows criminal assets to be seized and forfeited in Texas under limited circumstances, and warrants for items subject to forfeiture can be seized under Art.18.02(a)(12) warrants. All forfeited property must first fall within the definition of “contraband” as defined in Art.59.01.
A vehicle may be subject to a warrant under Subsection (a)(12) under scenarios including the following:
• as property used (or intended to be used) to commit an offense named in Chapter 59 (including any first- or second-degree felony and certain sex-related or property crimes);
• as property acquired with proceeds of crime (if the vehicle was bought with money from drug trafficking, for instance);
• as property used or intended to be used to facilitate sex crimes, trafficking, or smuggling.
Under most circumstances, property that may be classified as contraband under Chapter 59 will be seized incident to the arrest of an offender whose use of the property is what causes it to receive the “contraband” classification in the first place. However, if the vehicle is not in control of the offender at the time of arrest, as in the Art.18.02(a)(10) example above, a warrant pursuant to Art.18.02(a)(12) should be used to seize the vehicle.
Note that warrants issued under Art.18.02(a)(12) have the same limitations as subsection (a)(10) warrants regarding which magistrates may sign them.
Searches of premises that includes a vehicle
The courts have been clear that merely including places or things within affidavit and search warrant descriptions does not automatically bring them within the authorized scope of the search.31 For example, just because the affidavit language includes “vehicles” to be found on the premises, not all vehicles found there at the time the warrant is executed may be legitimately searched. Officers must first determine whether in fact the vehicles are within the control of the suspected party and whether it is reasonable that the party may have secreted within these vehicles the specific evidence authorized as the object of the search. Seldom, if ever, will the probable cause explanation in the affidavit make it likely that all vehicles driven by individuals who have no control over the premises, but happen to be there at the time the warrant is executed, contain the object of the search.
A final word on vehicles: If the suspected party is known to control and operate particular vehicles, one or more of those vehicles will probably be found on the premises to be searched, and the object of the search is small enough to be contained within such vehicles, then go ahead and describe those vehicles specifically as if they were structures within the target perimeter. While the usual parking places for the suspected party’s vehicles may be on or within the perimeter of the described premises—and therefore included within the catch-all phrase for curtilage—sometimes they will not be there at the time officers go to execute the search warrant.
Also, if the place to be searched is in a multifamily complex, such as an apartment, townhome, or condominium, the suspected party’s vehicle may be located in a common parking area substantially separate and distanced from the residential premises to be searched. Specifically describing these vehicles insures that they come within the warrant’s authorized scope regardless of where they are at the time the warrant is executed. Again, the probable cause information should establish that each described vehicle is operated and controlled by the suspected party and is just as likely a repository for the object of the search as any other location on the premises.
Endnotes
1 Carroll v. United States, 267 U.S. 132 (1925).
2 Pennsylvania v. Labron, 518 U.S. 938 (1996); Maryland v. Dyson, 527 U.S. 465 (1999); State v. Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998); see also Collins v. Virginia, 201 L.Ed.2d 9 (2018) (automobile exception does not allow warrantless entry into house or curtilage to search vehicle); Byrd v. United States, 138 S.Ct. 1518 (2018) (someone in otherwise lawful possession and control of rental car has reasonable expectation of privacy in it, even if rental agreement does not list him as authorized driver).
3 California v. Acevedo, 500 U.S. 565 (1991).
4 United States v. Ross, 456 U.S. 798 (1982) (the right to search an automobile contains with it the right to open any container found as a result of that search just as the right to search a room within a house contains implicit authority to open and search all drawers and containers in the room); Wyoming v. Houghton, 526 U.S. 295 (1999); see also United States v. Drayton, 536 U.S. 194 (2002) (Carroll applies only to luggage that is in a car).
5 Rodriguez v. United States, 135 S.Ct. 1609 (2015); Fisher v. State, 481 S.W.3d 403 (Tex. App.—Texarkana, pet. ref’d).
6 Ohio v. Robinette, 519 U.S. 33 (1996); United States v. Sharpe, 470 U.S. 675 (1985); see also Edmond v. State, 116 S.W.3d 110 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d) (detention reasonable for period of time no longer than required to ask two questions: whether defendant was carrying drugs and for consent to search); Leach v. State, 35 S.W.3d 232, 234-36 (Tex. App.—Austin 2000, no pet.); United States v. Brigham, 382 F.3d 500, 511 (5th Cir. 2004) (en banc) (“There is … no constitutional stopwatch on traffic stops. Instead, the relevant question in assessing whether a detention extends beyond a reasonable duration is ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly,’” quoting Sharpe, 470 U.S. at 686).
7 Rodriguez, 135 S.Ct. 1609.
8 Ramirez-Tamayo v. State, 537 S.W.3d 29 (Tex. Crim. App. 2017).
9 Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
10 United States v. Matlock, 415 U.S. 164 (1973); Frazier v. Cupp, 394 U.S. 731 (1969).
11 Allridge v. State, 850 S.W.2d 471 (Tex. Crim. App. 1991); Meeks v. State, 692 S.W.2d 504, 509 (Tex. Crim. App. 1985).
12 Florida v. Jimeno, 500 U.S. 248 (1991) (extent of a consensual search may be limited as to time, space, or geography by the consenting individual); Simpson v. State, 29 S.W.3d 324, 330 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (suspect must make request to limit consent to exclude any specific parts of the car).
13 Jimeno, 500 U.S. at 251; United States v. Mendoza-Gonzalez, 318 F.3d 663 (5th Cir. 2003) (consent to search back of truck’s trailer included authority for officer to open and examine contents of closed cardboard boxes).
14 State v. Copeland, 399 S.W.3d 159 (Tex. Crim. App. 2013).
15 Matthews v. State, 431 S.W.3d 596 (Tex. Crim. App. 2014).
16 Florida v. Jimeno, 500 U.S. at 252; Simpson, 29 S.W. 3d at 330 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); Vargas v. State, 18 S.W.3d 247 (Tex. App.—Waco, pet. 2000, pet. ref’d); Torres v. State, 482 S.W.3d 629 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
17 Horton v. California, 496 U.S. 128 (1990).
18 Hicks, 480 U.S. 321; Joseph v. State, 807 S.W.2d 303 (Tex. Crim. App. 1991).
19 Chimel v. California, 395 U.S. 752 (1969); New York v. Belton, 453 U.S. 454 (1981); Thornton v. United States, 541 U.S. 615 (2004).
20 Knowles v. Iowa, 525 U.S. 113 (1998).
21 Arizona v. Gant, 556 U.S. 332 (2009).
22 Washington v. Chrisman, 455 U.S. 1, 7 (1982).
23 Arizona v. Gant, 556 U.S. 332 (2009).
24 State v. Sanchez, 538 S.W.3d 545 (Tex. Crim. App. 2017).
25 South Dakota v. Opperman, 428 U.S. 364 (1976); Colorado v. Bertine, 479 U.S. 367 (1987); Stephen v. State, 677 S.W.2d 42 (Tex. Crim. App. 1984).
26 Florida v. Wells, 495 U.S. 1 (1990).
27 See Acosta v. State, 752 S.W.2d 706, 709 (Tex. App.—Corpus Christi 1988, pet. ref’d) (a warrant to search a vehicle will allow for the search of every part of the vehicle that might contain the object of the search).
28 See Clapp v. State, 669 S.W.2d 812, 815 (Tex. App.—Fort Worth 1984, no pet.) (based on reasoning in U.S. v. Ross, in a warrant-based search, the right to search an automobile contains with it the right to open any container found as a result of that search that might contain the item sought).
29 See Zarychta v. State, 44 S.W.3d 155, 166 (Tex. App.—Houston [14th Dist.] 2001, pet ref’d) (in a search for blood and gunpowder residue under a mere evidence warrant, the scope of the search is limited to those areas of the vehicle the suspect might have touched after the murder, including an ashtray or other containers or objects within the passenger compartment).
30 Tex. Code Crim. Proc. Art. 18.01(c), (h) & (i).
31 See, e.g., Barnett v. State, 788 S.W.2d 572 (Tex. Crim. App. 1990) (vehicle not included in scope of warrant when it arrived at the premises after the search had begun and the vehicle did not belong to and was not within the control of the owner or occupant of the premises); see also Hughes v. State, 843 S.W.2d 591 (Tex. Crim. App. 1992) (warrant authorizing the search of identified premises encompasses vehicles that are “within the control of the owner or occupants of the premises”); Hedspeth v. State, 249 S.W.3d 732 (Tex. App.—Austin 2008, pet. ref’d); see also Collins v. Virginia, 201 L.Ed.2d 9 (2018) (automobile exception does not allow warrantless entry into a home or its curtilage to search a vehicle).