Defendant had been arrested and separated from his vehicle. Because there was probable cause for a search of the car, the automobile exception applied. The court questions the automobile exception. United States v. Strese, 2007 U.S. Dist. LEXIS 70254 (E.D. N.Y. August 8, 2007):
2. Concerns About The Applicability Of Controlling Precedent In This Case
The government’s search of Strese’s SUV falls squarely within both aspects of the automobile exception to the warrant requirement as it has been applied in controlling cases, as cited above, that have interpreted the rule in the aftermath of Carroll. As a result, the only remaining issue before the court is whether there existed probable cause to search Strese’s SUV at the time the agents did so, which I address in the next section of this discussion. Nevertheless, while I must recommend that the court adhere to the controlling law of this circuit, I must also report that in my view, the case law that extends to this case the automobile exception to the presumptive warrant requirement misapplies the rationale for that exception, and therefore allows the government in this case to use evidence that I believe it seized in violation of the Fourth Amendment. Accordingly, before proceeding to an analysis of the probable cause issue, I briefly set forth my concern about the case law in the event that the court considers it relevant to the disposition of this motion.
As noted above, the automobile exception to the presumptive warrant requirement rests on two independent rationales: first, that the “readily mobile” nature of an automobile is a form of exigency that normally excuses the warrant requirement, on the ground that the automobile could be moved while the warrant application is pending; and second, that the diminished expectation of privacy in an automobile renders the presumptive warrant requirement inapposite. The circumstances of this case show why those rationales do not always apply in full force when agents wish to search the contents of an automobile and have probable cause to do so.
The “readily mobile” justification for the automobile exception should not apply here for several reasons. First, the rule that the defendant’s arrest is no bar to the application of the exception–on the theory that a confederate could have access to the vehicle–is overbroad, in that it applies even where, as in this case, the circumstances suggest that there is no reasonable likelihood of the existence of such a confederate. Second, it also impermissibly relieves the government of its burden of establishing the reasonableness of the warrantless search: if the government could demonstrate probable cause to believe that Strese or a confederate was in a position to remove the car while a warrant was being sought, the rule would make sense–but that is a showing that the government should bear the burden of making if it seeks to be relieved of its normal obligation to obtain a warrant.
Moreover, even if reliance on the existence of a wholly imagined confederate would justify the exception in circumstances where the car remains where it was found, it makes no sense where, as here, government agents seize the car and maintain it in their custody. In the latter circumstances, the readily mobile nature of the vehicle plainly justifies the seizure only, and not the subsequent search. There is simply no reason why the latter cannot await the issuance of a warrant as the Fourth Amendment presumptively requires whenever the government wishes to search a person’s “effects.” See Cady v. Dombrowski, 413 U.S. 433, 439 (1973) (vehicles are effects within the meaning of the Fourth Amendment); cf. California v. Acevedo, 500 U.S. 565, 588 (1991) (differentiating between effects and vehicles).
The reliance on a lowered expectation of privacy in a vehicle is likewise overbroad and, in the circumstances of this case, unreasonable. I agree that members of our society can have no reasonable expectation that items within the cabin of an automobile, or even in the trunk, will remain private. Such items are necessarily and regularly exposed to the scrutiny of others in the course of using a vehicle to transport them. But if a person creates a secure storage space in an automobile for the transportation of sensitive private materials, I am less confident that society will reject as unreasonable that person’s expectation of privacy. For example, a doctor who works out of both a home office and a hospital may need to transport privileged medical records between the two, and may for that purpose take precautions against such records being visible during transportation–either by maintaining a locked container within the car, or even going so far as to create a hidden compartment that will be less likely to be found if vandals break into the car. The expectation that such a storage space should remain private seems to me to be no more or less reasonable than the expectation that a sealed envelope in which such records could alternately be mailed should also be subject to the Fourth Amendment’s presumptive warrant requirement. See United States v. Jacobsen, 466 U.S. 109, 114 & n.7 (1984).
Thus, the case law on which I rely for my recommendation creates boundaries on the “automobile exception” – specifically, that the search of a vehicle may be as broad as that which a magistrate could authorize on an adequate showing of probable cause, see Ross, 456 U.S. at 823-24–that fail to safeguard individual rights against official mistakes. The rule essentially puts an individual’s privacy rights at the mercy of a law enforcement officer’s subjective assessment of whether a locked container contains contraband rather than on the mediating consideration of a detached and neutral magistrate. I believe that such a departure from the normal requirements of the Fourth Amendment is not justified either by a theoretical (but in this case demonstrably non-existent) possibility that a vehicle can be moved while a warrant application is pending, or by an artificially narrow assumption about the reasonableness of a vehicle occupant’s expectation of privacy. Further, such a broad application of the automobile exception creates a class of unquestionably private materials that cannot effectively be transported with a reasonable expectation of privacy–a class that is disturbingly larger for those of lesser economic means who cannot afford alternate shipping options.
The cases upon which I rely in recommending that the court deny the motion do not square such concerns with the rationale for the automobile exception. They simply announce a rule that plainly excuses the agents’ decision in this case not to seek a warrant that was easily available. I have no authority to recommend departure from that rule simply because I believe it produces a result that seems inconsistent with the Fourth Amendment. I therefore proceed to an analysis of the probable cause issue.
