JurisdictionNorth Carolina

§ 13.01. Automobile Search Warrant Exception: General Rules1

[A] Important Overview

A warrantless nonconsensual search of an automobile can be justified in various circumstances: as incident to a lawful arrest; in the police department's community care-taking function of inventorying a vehicle after it has been lawfully seized and towed from a public road; at international borders; and, in limited situations, when a driver is stopped on the highway for violating a traffic offense.2 But there is also a specific "automobile3 exception" to the Fourth Amendment search warrant "requirement," which is the subject of this chapter.

The automobile exception has broadened dramatically over time. The Supreme Court once stated that "[t]he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears."4 Today, however, in nearly all circumstances, a citizen who enters an automobile surrenders the right to have the initial probable cause determination of a car search5 made by a magistrate. Indeed, in many circumstances, the police may search or seize an unoccupied automobile without a warrant, as long as it is later determined that they possessed probable cause for the conduct.

The general rules are set out in the subsections that follow. But the rules that have developed are controversial. Therefore, to appreciate the controversies—and to fully understand the road that the Supreme Court has taken to its current destination—some of the most critical automobile cases are discussed in Section 13.02 through 13.04.

A separate issue must also be considered in relation to automobiles. Often, a search of an automobile includes a search of a container, e.g., an occupant's purse or jacket, a paper bag, or a briefcase, found within the vehicle. This so-called container-in-car issue is considered in Section 13.05.

[B] Searches "At the Scene"

A police officer may conduct an immediate ("at the scene") warrantless search of an automobile that she has probable cause to believe contains contraband, or fruits, instrumentalities, or evidence of a crime, if: (1) she stops the car on the highway;6 or (2) the vehicle is readily capable of use on the highway, is found "in a setting that objectively indicates that [the vehicle] is being used for transportation," and is discovered "stationary in a place not regularly used for residential purposes."7

Although early automobile cases were based on a requirement of exigency—that the vehicle could immediately be moved and, therefore, lost to the police—the current law provides that "the "automobile exception" has no separate exigency requirement."8 It is now enough that "[i]f a car is readily mobile and probable cause exists to believe it contains contraband [or other seizable evidence], the Fourth Amendment . . . permits police to search the vehicle without more."9

It follows from this that, assuming probable cause to search, the police may conduct an immediate search of those portions of the vehicle for which the police have probable cause to search, when they stop the car on a public road,10 or which they discover off the highway, at a gas station,11 or parked in a public place, such as in a parking lot.12 In contrast, there is possible support for the proposition that a warrantless search of an unoccupied car parked in the user's driveway or garage is not permitted if the police have time to secure a warrant prior to the search.13

As a corollary of the preceding rules, the Fourth Amendment does not require the police to secure a warrant to seize an automobile parked in a public place — even if they have time to obtain a warrant—when they have probable cause to believe that the vehicle itself constitutes forfeitable contraband under state law (e.g., there is probable cause to believe that the car was used on some prior occasion in the commission of a criminal offense).14 The police may seize the vehicle on these grounds, although they have no reason to believe that it contains objects...

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