Chapter 10: Investigative Constitutional Law LawTech Custom Publishing, Inc. Copyright 2010 Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Learning Outcomes Kinds of conveyances that may be searched, and the rationale for warrantless searches. The two requirements for engaging in a fleeting targets search. Timing and place of search. Contrast with a search incident to arrest. Effect of removal of the vehicle, impound and storage in police custody, intervening delay, and prior search. The special rules for searching containers found within vehicles, including the evolution of the rules for permissible searches. Scope of a fleeting targets search. Independent sources for vehicle searches. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Category of Conveyances Subject to Search Unlike a home or an office or a warehouse, a motor vehicle or other mobile object may not stand still while a search warrant is sought. Because of this and other distinctions, the historic requirement of a warrant does not necessarily apply to the searches of such targets. Although the exception for warrantless searches of vehicles and vessels is sometimes referred to as the “automobile exception” (because it is most often applied to automobiles, in practice), the Supreme Court has placed no such limitation on the kinds of mobile devices to which the exception applies. The same ruling and rationale apply to all varieties of “fleeting targets,” including cars, trucks, motorcycles, recreational vehicles, buses, trains, boats, ships and aircraft. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Operability (Mobile) After initially considering ready mobility alone as the factor justifying warrantless searches of fleeting targets based on PC, the court later added a second ground for the exception. Not all potentially mobile vehicles are necessarily mobile when encountered by police, e.g., an inoperable car at an accident scene. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Diminished Expectation of Privacy (Continued) This second ground for searching - the reduced expectation of privacy in such places - may serve to justify a warrantless search even when the target is no longer fleeting. The diminished expectation of privacy in government-regulated vehicles helps to justify their warrantless search based on PC. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Two Requirements In order to conduct a lawful search of a vehicle without a warrant, law enforcement officers must have two things: lawful access to the vehicle, and probable cause to believe that it contains (1) contraband or (2) evidence, (fruits or instrumentalities) of a crime. Lawful Access: The fleeting targets exception addresses only the right to search the vehicle—not the right to gain access to it. If the vehicle is garaged, the fleeting targets exception does not permit a warrant-less entry into the garage in order to reach the vehicle. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Two Requirements (Continued) Probable Cause: To suspect the presence of contraband or evidence, fruits, or instrumentalities of a crime. Obtaining the magistrate’s advance approval of the adequacy of the PC as set forth in a search warrant affidavit is less risky for an officer than making the PC determination on his or her own. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Time and Place Issues The law enforcement officer, attorney and judge considering a search must identify the applicable exceptions, apply the proper scope-of-search rules, and examine whether a search was performed at an authorized time and place. Contemporaneous Search at the Scene: With PC and lawful access, police may make a contemporaneous, warrantless search of a vehicle. Delayed Search at the Impound Lot, Etc.: “If the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle” (California v. Acevedo). Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Time and Place Issues (Continued) discuss only Delayed Search at the Impound Lot, Etc. (Continued) In Exclusive Police Custody: With PC, a fleeting target may still be searched without a warrant, even though it is in exclusive police custody. Time to Get a Warrant: With PC, a fleeting target may still be searched without a warrant, even though there is sufficient time to obtain a warrant. Lack of Exigency: It is not necessary that police identify any exigent circumstances to justify a fleeting targets search. The court has determined that the inherent mobility of vehicles is exigency enough, in all cases. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Time and Place Issues (Continued) discuss only Passage of Time: With PC, a fleeting target may still be searched without a warrant, even though several days may have intervened between seizure of the vehicle and a search of the vehicle and its contents. Prior Search Conducted: With PC, a fleeting target may still be searched without a warrant, even though it has been searched before and has remained in police custody. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Scope of Search The scope of a vehicle search will be defined by the nature of the object there is PC to believe is present. Places that could not conceal the object of the search cannot be searched. If the focus of the PC is unrestricted, the scope of search is also unrestricted. Closed Containers: The scope of a fleeting targets search includes all containers, open or closed, that might conceal the object of the search. Passenger-Owned Containers: Passengers’ property inside a fleeting target are included in the scope of search. Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Scope of Search, cont. Vehicle Compartments: Just as all containers may be within the scope of search, so may all compartments and places within a vehicle that could conceal the contraband or evidence suspected to be there. “If destroying the interior of an automobile [as in Carroll] is not unreasonable, we cannot conclude that looking inside a closed container is.” (California v. Acevedo) Officers should bear in mind that unnecessary destruction of property could make the manner of execution unreasonable. (US v. Ramirez) Investigative Constitutional Law

Chapter 10: Fleeting Targets Searches Consent, Inventory and Incident to Arrest as Independent Sources Because fleeting targets searches are limited to the areas where there is PC to suspect seizable property and must end once the property is found, and because a court might later disagree with the officer’s belief that there was adequate PC for a search, the prudent officer will not rely exclusively on this exception if it is possible to have one or more “back-up” justifications. Officers should also bear in mind that probable cause to believe a person has contraband or evidence of a crime in a vehicle will often also be probable cause to arrest If the search can be justified on any ground, it is reasonable under the Fourth Amendment. (Scott v. US) Investigative Constitutional Law