For automobile exception to apply, “inherent mobility” is the question, not “ready mobility”; driver miles away from vehicle did not make exception inapplicable

(A lot of cases today; more later.)

The District Court erred in suppressing a search of a car parked on the side of the New York State Thruway just because the driver was in custody at a State Police barracks and the vehicle was thus not “readily mobile.” The inherent mobility of the vehicle still exists. Couple that with probable cause, and the police could search under the automobile exception, and a warrant was not required. United States v. Howard, 489 F.3d 484 (2d Cir. 2007):

The district court’s finding that the defendants’ temporary, voluntary presence in the police barracks for questioning pursuant to the ruse meant that the vehicles were not readily mobile, and that searches of them were therefore not within the automobile exception, was in error for two reasons. First, the district court erred in determining that the vehicles were not readily mobile within the meaning of the automobile exception simply on the ground that the drivers and passenger were with police officers at their barracks, undergoing questioning concerning the ruse developed by the officers. Whether a vehicle is “readily mobile” within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search. See Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (distinguishing a car, which is “readily movable,” from a “fixed piece of property”). The district court’s reading of “ready mobility” is in error because the district court appeared to regard the actual ability of a driver or passenger to flee immediately in the car, or the likelihood of him or her doing so, as a requirement for the application of the automobile exception.

We rejected such a reading of “ready mobility” in United States v. Vassiliou, 820 F.2d 28 (2d Cir. 1987). Vassiliou was a contractor working for the United States on a military base. Following a fight with a subcontractor while on the base, the two were led to the military police station to settle the dispute. The subcontractor alleged that Vassiliou had pulled a gun on him and then hid the gun in the car. Based on this information, the military police conducted a warrantless search of Vassiliou’s vehicle and found the gun. Vassiliou sought to suppress the weapon, contending that the automobile exception did not apply “because his car was on a military outpost over which the military police had plenary jurisdiction and therefore was not mobile.” Id. at 30 (internal quotation marks omitted). He argued that, “[b]ecause entry to and exit from the post were controlled by the military police … he could not simply have driven away.” Id. (internal quotation marks omitted). We rejected Vassiliou’s argument and affirmed the district court’s denial of Vassiliou’s suppression motion because, regardless of the military’s plenary control over the base, “Vassiliou could have left the military police station while a warrant was being obtained and disposed of the gun elsewhere on the base.” Id. We determined that the facts presented comprised “precisely the sort of exigent circumstances resulting from the automobile’s inherent mobility that the Supreme Court has recognized as justifying the automobile exception to the warrant requirement.” Id.

Like the defendants in the instant case, Vassiliou effectively claimed that he could not have accessed his car because he was in police custody, and that the vehicle was therefore not “readily mobile” as contemplated by the automobile exception cases. And indeed, like Vassiliou’s detention by military police on the base, the detention of the defendants in this case prevented them from accessing their vehicles. But just as the automobile exception was applicable in Vassiliou’s case, it applies here. Even where there is little practical likelihood that the vehicle will be driven away, the exception applies at least when that possibility exists. In this case, the police could not lawfully have detained the defendants in the police station had they not consented to remain there. Furthermore, the possibility existed that confederates in another car, of whom the police were unaware, might have observed the police intervention and might drive the car away. The district court erred in determining that the relative inaccessibility of the vehicles, occasioned by the defendants’ undergoing questioning at the police barracks, was sufficient to bring this search outside the ambit of the automobile exception.

The Coast Guard boarded and searched a vessel 180 nautical miles south of the Dominican Republic that was dead in the water, riding low, and without markings or a flag after the ship’s master refused to identify it or himself. Inside was found $7.5M in marijuana. The crew was arrested and the ship, crippled anyway, was sunk. The Fourth Amendment was inapplicable. United States v. Bravo, 489 F.3d 1 (1st Cir. 2007):

For purposes of this case, therefore, if there was a constitutional violation of the Fourth Amendment, it occurred solely in international waters, where the search and seizure took place. But the Fourth Amendment does not apply to activities of the United States against aliens in international waters. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). The Supreme Court’s holding in Verdugo-Urquidez is clear that the actions of the United States directed against aliens in foreign territory or in international waters are not constrained by the Fourth Amendment. 494 U.S. at 267 (“There is … no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”); see also United States v. Vilches-Navarrette, 413 F. Supp. 2d 60, 69 (D. P.R. 2006) (“In light of the Supreme Court’s holding in Verdugo-Urquidez, it is pellucid that the Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters.”). Accordingly, the district court was correct in denying Appellants’ motion to suppress because the Fourth Amendment was inapplicable to the USCG’s search of the vessel.

(Update, June 14: This case also appears at 2007 U.S. App. LEXIS 13797.)