Cardwell v. Lewis

Mr. Justice Stewart,

with whom Mr. Justice Douglas, Mr. Justice Brennan, and Mr. Justice Marshall join,

dissenting.

The most fundamental rule in this area of constitutional law is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 ; Coolidge v. New Hampshire, 403 U. S. 443, 454-455 . See also Camara v. Municipal Court, 387 U. S. 523, 528-529 . Since there was no warrant authorizing *597 the search and seizure in this case, and since none of the “specifically established and well-delineated exceptions” to the warrant requirement here existed, I am convinced the judgment of the Court of Appeals must be affirmed. 1

In casting about for some way to avoid the impact of our previous decisions, the plurality opinion first suggests, ante, at 588-589, that no “search” really took place in this case, since all that the police did was to scrape paint from the respondent's car and make observations of its tires. Whatever merit this argument might possess in the abstract, it is irrelevant in the circumstances disclosed by this record. The argument is irrelevant for the simple reason that the police, before taking the paint scrapings and looking at the tires, first took possession of the car itself. The Fourth and Fourteenth Amendments protect against “unreasonable searches and seizures,” and there most assuredly was a seizure here.

The plurality opinion next seems to suggest that the basic constitutional rule can be overlooked in this case because the subject of the seizure was an automobile. It is true, of course, that a line of decisions, beginning with Carroll v. United States, 267 U. S. 132 , have recognized a so-called “automobile exception” to the constitutional requirement of a warrant. But “[t]he word 'automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge, supra, at 461-462 . Rather, the Carroll doctrine simply recognizes the obvious — that a moving automobile on the open road presents a situation “where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the *598 warrant must be sought.” Carroll, supra, at 153 . See also Almeida-Sanchez v. United States, 413 U. S. 266, 269 . Where there is no reasonable likelihood that the automobile would or could be moved, the Carroll doctrine is simply inapplicable. See, e. g., Coolidge, supra; Preston v. United States, 376 U. S. 364 .

The facts of this case make clear beyond peradventure that the “automobile exception” is not available to uphold the warrantless seizure of the respondent’s car. Well before the time that the automobile was seized, the respondent — and the keys to his car — were securely within police custody. There was thus absolutely no likelihood that the respondent could have either moved the car or meddled with it during the time necessary to obtain a search warrant. And there was no realistic possibility that anyone else was in a position to do so either. I am at a loss, therefore, to understand the plurality opinion’s conclusion, ante, at 595, that there was a “potential for the car’s removal” during the period immediately preceding the car’s seizure. The facts of record can only support a diametrically opposite conclusion.

Finally, the plurality opinion suggests that other “exigent circumstances” might have excused the failure of the police to procure a warrant. The opinion nowhere states what these mystical exigencies might have been, and counsel for the petitioner has not been so inventive as to suggest any. 2 Since the authorities had taken care to procure an arrest warrant even before the respondent *599 arrived for questioning, it can scarcely be said that probable cause was not discovered until so late a point in time as to prevent the obtaining of a warrant for seizure of the automobile. And, with the automobile effectively immobilized during the period of the respondent’s interrogation, the fear that evidence might be destroyed was hardly an exigency, particularly when it is remembered that no such fear prompted a seizure during all the preceding months while the respondent, though under investigation, had been in full control of the car. 3 This is, quite simply, a case where no exigent circumstances existed. 4

Until today it has been clear that “[n] either Carroll ... nor other cases in this Court require or suggest that in every conceivable circumstance the search of an auto even with probable cause may be made without the extra protection for privacy that a warrant affords.”. Chambers v. Maroney, 399 U. S. 42, 50 . I would follow the settled constitutional law established in our decisions and affirm the judgment of the Court of Appeals.

This dissent is directed toward the search-and-seizure analysis in Mr. Justice Blackmun's plurality opinion. Like the plurality, I do not consider the issue raised by Mr. Justice Powell's concurrence, it having been neither briefed nor argued by the parties.

Even the Solicitor General, who appeared as amicus curiae urging a reversal of the .Court of Appeals’ judgment in this case, has candidly admitted in his brief that “no satisfactory reason appears for the failure of the law enforcement officers to have obtained a warrant — there appears on the facts of this case to have been no real likelihood that respondent would have destroyed or concealed the evidence sought during the time required to seek and procure a warrant.” Brief for United States as Amicus Curiae 4-5.

It can hardly be argued that the questioning of the respondent by the police for the first time alerted him to their intentions, thus suddenly providing him a motivation to remove the car from “official grasp.” Ante, at 590, 595. Even putting to one side the question of how the respondent could have acted to destroy any evidence while he was in police custody, the fact is that he was fully aware of official suspicion during several months preceding the interrogation. He had been questioned on several occasions prior to his arrest, and he had been alerted on the day before the interrogation that the police wished to see him. Nonetheless, he voluntarily drove his car to Columbus to keep his appointment with the investigators.

The plurality opinion correctly rejects, ante, at 591-592, n. 7, the petitioner’s contention that the seizure here was incident to the arrest of the respondent. “Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.” Preston v. United States, 376 U. S. 364, 367 .