Opinion — Cardwell v. Lewis

Syllabus

CARDWELL, WARDEN v. LEWIS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 72-1603. Argued March 18, 1974—Decided June 17, 1974.

On July 24, 1967, law enforcement officers interviewed respondent in

connection with a murder that had occurred five days before and

viewed his automobile, which was thought to have been used in the

' commission of the crime. On October 10, in response to a previous

request, respondent appeared at 10 a. m. for questioning at the

office of the investigating authorities, having left his car at a

nearby public commercial parking lot. Though the police had

secured a warrant for respondent's arrest at § a. m., respondent

was not arrested until late in the afternoon, after which his car was

towed to a police impoundment lot, where a warrantless examina-

tion the next day of the outside of the car revealed that a tire

matched the cast of a tire impression made at the crime scene and

_ that paint samples taken from respondent’s car were not different

from foreign paint on the fender of the victim’s car. Respondent

was tried and convicted of the murder, and his conviction was

- affirmed on appeal. In a subsequent habeas corpus proceeding the

District Court concluded that the seizure and examination of

respondent’s car violated the Fourth and Fourteenth Amendments

and that the evidence obtained therefrom should have been ex-

cluded at the trial. The Court of Appeals affirmed, concluding

that the scraping of paint from the car’s exterior was a search

within the meaning of the Fourth Amendment; that the search,

which was not incident to respondent’s arrest, was unconsented;

and that the car's seizure could not be justified on the ground

that the car was an instrumentality of the crime in plain view.

s Held: The judgment is reversed. Pp. 4

3 476 F. 2d 467, reversed.

3 Mr. Justice Biackmun, joined by THe Cur Justice, Mr.

Justices Wuirs, and Mr. Justice Rexnquist, concluded that:

_.

ba CARDWELL v. LEWIS

Syllabus

1. The examination of the exterior of respondent’s automobile

upon probable cause was reasonable and invaded no right of

privacy that requirement of a search warrant is meant to

protect. Pp.

(a) The primary object of the Fourth Amendment is the pro-

tection of privacy. Warden v. Hayden, 387 U. 8.'204, 306-306.

P. 5.

(b) Generally, less stringent warrant requirements are applied

to vehicles than to homes or offices, Carroll v. United States, 267

U. S. 132; ; Chambers v. Maroney, 399 U.S. 42, and the search of

(c) The “search” in this case, concededly made on the basis

of probable cause, infringed no expectation of privacy. Pp. 7-8.

2. Under the circumstances of this case the seizure by im-

pounding the car was not unreasonable. Pp. 8-12.

(a) The vehicle was seized from a public place, where access

was not meaningfully restricted. Chambers v. Maroney, 399 U.S.

42, followed; Gheltiye v: New Hampelite, 8. 5. 418, atin

guished. Pp. 9-11.

(b) Exigent circumstances justifying a warrantless search of

a vehicle are not limted to situations where probable cause is

unforseeable and arises only at the time of arrest. Cf. Chambers,

399 U.S., at 50-51. P. 11. =_

Mr. Justics Powe, being of the view that the inquiry of a

federal court on habeas corpus review of a state prisoner’s Fourth

Amendment claim should be confined solely to the question whether

the defendant had an opportunity in the state courts to raise that

claim and have it adjudicated fairly, would reverse the judgment of

the Court of Appeals since respondent does not contend that he

was denied that opportunity. See Schneckloth v. Bustamonte, 412

U.S. 218, 250 (Powstt, J., concurring). P. 1.

Biacxuun, J., announced the Court’s judgment and delivered an

opinion, in which Burasr, C. J., and Wurre and Rennquist, JJ.,

joined. Powe, J., filed an opinion concurring in the result. Srew-

art, J., filed a dissenting opinion, in which Dovcias, Brennan, and

Marsnat., JJ., joined.

liminary print goce to press. e

SUPREME COURT OF THE. UNITED STATES

No. 72-1603

Harold J. Cardwell, Warden,:On Writ of Certiorari to

Petitioner, the United States Court

v. of Appeals for the Sixth

Arthur Ben Lewis. Circuit.

[June 17, 1974]

Mr. Justice BLACKMUN announced the judgment of

the Court and an opinion in which the Caer Justice,

Mr. Justice Wurrs, and Mr. JUSTICE REHNQUIST join.

This case presents the issue of the legality, under the —

Fourth and Fourteenth Amendments, of a warrantless

seizure of an automobile and the examination of its

exterior at a police impoundment area after the car had

been removed from a public parking lot.

Evidence obtained upon this examination was intro-

duced at the respondent’s state court trial for first-

degree murder. He was convicted. The Federal District

Court, on a habeas application, ruled that the examina-

tion was a search violative of the Fourth and Fourteenth

Amendments. 354 F. Supp. 26 (SD Ohio 1972). The

United States Court of Appeals for the Sixth Circuit

affirmed. 476 F. 2d 467 (1973). We granted certiorari,

414 U. S. 1062 (1973), and now conclude that, under

the circumstances of this case, there was no violation of

the protection afforded by the Amendments.

I

In 1968 respondent Arthur Ben Lewis, Jr., was tried

and convicted by a jury in an Ohio state court for the

first-degree murder of Paul Radcliffe. On appeal, the

Supreme Court of Ohio affirmed the judgment of con-

2 CARDWELL v. LEWIS

viction. State v. Lewis, 22 Ohio St. 2d 125, 258 N. E.

2d 445 (1970). This Court denied review!’ Lewis v.

Ohio, 400 U. S. 959 (1970).

On respondent’s federal habeas . application the Dis-

trict Court, from the record and after an evidentiary

hearing, adduced the following facts:

On the afternoon of July 19, 1967, Radcliffe’s body

was found near his car on the banks of the Olentangy

River in Delaware County, Ohio. The car had gone over

the embankment and had come to rest in brush. Rad-

cliffe had died from shotgun wounds. Casts were made

of tire tracks at the scene, and foreign paint scrapings

were removed from the right rear fender of Radcliffe’s

automobile.

Within five days of Radcliffe’s death, the investigation

began to focus upon respondent Lewis. It was learned

that Lewis knew Radcliffe. Lewis had been negotiating

the sale of a business and had executed a contract of sale.

- The purchaser, Jack Smith, employed Radcliffe, an

accountant, to examine Lewis’ books. Police went to

Lewis’ place of business to question him and there

observed the model and color of his car in the thought

that it might have been used to push the Radcliffe

vehicle over the embankment. Not until several months

later, however, in late September, was Lewis again ques-

tioned. On October 9, he was asked to appear the next

morning at the Office of the Division of Criminal Activi-

ties in Columbus for further interrogation.

On October 10, at 8 a. m., a warrant for respondent’s

arrest was obtained.’ The District Court found that at

1 The arrest warrant was obtained in Delaware County, where the

crime was committed. The Activities Office is in adjacent Franklin

County. In Ohio, an arrest warrant may be served in any county of

the State. Ohio Rev. Code § 2491.36 (1953). In contrast, a search

warrant in Ohio may be issued by a judge or magistrate only

“within his jurisdiction.” Ohio Rev. Code §2933.21. Thus, a

CARDWELL v. LEWIS 3

this time, in addition to probable cause for the arrest,

the police also had probable cause to believe that Lewis’

car was used in the commission of the crime. An auto-

mobile similar to his had been observed leaving the scene ;

the color of his vehicle was similar to the color of the

paint scrapings from the victim’s car; in a telephone call

to Mrs. Smith, made by a person who said he was Rad-

cliffe, but proved not to be,? the caller made statements

that, if true, would benefit only Lewis; he had had body

repair work done on the grille, hood, right front fender,

and other parts of his car on the day following the crime;

and the victim’s desk calendar for the day of his death

showed the notation, “Call Ben Lewis.” *

Respondent Lewis complied with the request to appear.

He drove his car to the Activities Office, placed it in a

public commercial parking lot a half block away, and

arrived shortly after 10 a.m. Although the police were

in possession of the arrest warrant for the entire period

that Lewis was present, he was not served with that —

warrant or arrested until late that afternoon, at approxi-

mately 5 p.m. Two hours earlier, Lewis had been per-

mitted to call his lawyer and two attorneys were present

on his behalf in the Office at the time of the formal arrest.

Upon the arrest, Lewis’ car keys and the parking lot

search warrant obtained in Delaware County is not valid in Franklin

County.

2 The call was made at about 9:30 a. m. on July 19 by a man who

identified himself to Mrs. Smith as Radcliffe and who stated that the

books were in “A-1 condition.” Mrs. Smith, who knew the victim,

did not identify the caller as Radcliffe. Gunshots were heard between

8 a. m. and 8:30 a. m. that day by two women who lived near the

site of the crime. It thus became clear that someone had im-

personated Radcliffe in making the telephone call.

2 The calendar’s page for July 19 was missing. Investigation dis-

closed a writing indentation, on the next and underlying page for

July 20, which indicated what had been written on the page for

July 19.

4 CARDWELL v. LEWIS

claim check were released to the police. A tow truck

was dispatched to remove the car from the parking lot to

the police impoundment lot.

The impounded car was examined the next day by a

technician from the Ohio Bureau of Criminal Investiga-

tion. The tread of its right rear tire was found to match

the cast of a tire impression made at the scene of the

crime.‘ The technician testified that, in his opinion, the

foreign paint on the fender of Radcliffe’s car was not

different from the paint samples taken from respondent’s

vehicle, that is, there was no difference in color, texture,

or order of layering of the paint.

The District Court concluded that the seizure and

examination of Lewis’ car were violative of the Fourth

and Fourteenth Amendments, and that the evidence

obtained therefrom should have been excluded at the

state court trial. The court, accordingly, issued a writ

of habeas corpus requiring the State to “initiate action

for a new trial of” respondent within 90 days or, in the

alternative, to release him. 354 F. Supp., at 44. The

Court of Appeals, in affirming, held that the scraping

of paint from the exterior of Lewis’ car was in fact a

search, within the meaning of the Fourth Amendment;

that there was no consent to that search; that it was not

incident to Lewis’ arrest; and that the seizure of the car

could not be justified on the ground that the vehicle was

an instrumentality of the crime in plain view.

I

This case is factually different from prior car search

cases decided by this Court. The evidence with which

we are concerned is not the product of a “search” that im-

* Apparently, the car’s trunk was also opened and a tire in the

trunk was observed. 354 F. Supp., at 33; 476 F. 2d, at 468. No

evidence obtained from any part of the interior of the vehicle,

however, was introduced.

CARDWELL v. LEWIS 5

plicates traditional considerations of the owner’s privacy

interest. It consisted of paint scrapings from the exterior

and an observation of the tread of a tire on an operative

wheel. The issue, therefore, is whether the examination

of an automobile’s exterior upon probable cause invades a

right to privacy which the interposition of a warrant re-

quirement is meant to protect. This is an issue this

Court has not-previously addressed.

The common law notion that a warrant to search and

seize is dependent upon the assertion of a superior

government interest in property, see, @. 9-, Entick v.

Carrington, 19 How. St. Tr. 1029, 1066 (1765), and the

proposition that a warrant is valid “only when a primary

right to such search and seizure may be found in the

interest which the public or the complainant may have

in the property to be seized, or in the right to the posses-

sion of it,” Gouled v. United States, 255 U. S. 298, 309

(1921), were explicitly rejected as controlling Fourth

Amendment considerations in Warden v. Hayden, 387

U. S. 924, 302-366 (1967). Rather than pr@perty rights,

the primary object of the Fourth Amendment was deter-

mined to be the protection of privacy. Id., at 305-306.

And it had been said earlier, “The decisions of this Court

have time and again underscored the purpose of the

Fourth Amendment to shield the citizen from unwar-

ranted intrusions into his privacy.” Jones v. United

States, 357 U. S. 493, 498 (1958). See also Schmerber v.

California, 384 U. S. 757, 769-770 (1966) ; Katz v. United

States, 389 U. S. 347, 350 (1967); United States v.

Dionisio, 410 U. S. 1, 14-15 (1973).

At least since Carroll v. United States, 267 U. 8. 132

(1925), the Court has recognized a distinction between

the warrantless search and seizure of automobiles or

other movable vehicles, on the one hand, and the search

of a home or office, on the other. Generally, less strin-

a |

gent warrant requirements have been applied to vehicles.

In Chambers v. Maroney, 399 U. S. 42, 49 (1970), the

Court chronicled the development of car searches and

seizures.’ An underlying factor in the Carroll-Chambers

line of decisions has been the exigent circumstances that

exist in connection with movable vehicles: “[T)he cir-

cumstances that furnish probable cause to search a par-

ticular auto for particular articles are most often unfore-

seeable; moreover, the opportunity to search is fleeting

since the car is readily movable.” Chambers v. Maroney,

399 U. S., at 50-51. This is strikingly true where the

automobile’s owner is alerted to police intentions and, as

@ consequence, the motivation to remove evidence from

official grasp is heightened.

There is still another distinguishing factor. “The

search of an automobile is far less intrusive on the rights

protected by the Fourth Amendment than the search of

one’s person or of a building.” Almeida-Sanchez v.

United States, 413 U. S. 266, 279 (1973) (Powe1t, J.,

concurring). One has a lesser expectation of privacy

in a motor vehicle because its function is transportation

and it seldom serves as one’s residence or as the reposi- —

tory of personal effects. A car has little capacity for

escaping public scrutiny. It travels public thorough-

fares where both its occupants and its contents are

6 CARDWELL v. LEWIS

’The Court there discussed the following post-Carroll cases:

Husty v. United States, 282 U. S. 694 (1931); Scher v. United

States, 305 U.S. 251 (1938); Brinegar v. United States, 338 U. S.

160 (1949); Preston v. United States, 376 U.S. 364 (1964); Cooper

v. California, 386 U. 8. 58 (1967); Dyke v. Taylor Implement Mfg.

Co., 391 U. S. 216 (1968). Cases decided since Chambers and that

now might be added to the list include Coolidge v. New Hampshire,

403 U. S. 443 (1971); Almeida-Sanchez v. United States, 413 U. S.

266 (1973); Cady v. Dombrowski, 413 U.S. 433 (1973). See also

Harris v. United States, 390 U. S. 234 (1968); Note, Warrantless

Searches and Seizures of Automobiles, 87 Harv. L. Rev. 835 (1974).

CARDWELL v. LEWIS 7

in plain view. See People v. Case, 220 Mich. 379, 388-

389, 190 N. W. 2d 289, 292 (1922). “What a person

knowingly exposes to the public, even in his own home

or office, is not a subject of Fourth Amendment protec-

tion.” Katz v. United States, 389 U. S., at 351; United

States v. Dionisio, 410 U.S., at 14. This is not to say

that no part of the interior of an automobile has Fourth

Amendment protection; the exercise of a desire to be

mobile does not, of course, waive one’s right to be free

of unreasonable government intrusion. But insofar as

Fourth Amendment protection extends to a motor vehicle,

it is the right to privacy that is the touchstone of our

In the present case, nothing from the interior of the

car and no personal effects, which the Fourth Amendment

traditionally has been deemed to protect, were searched

or seized and introduced in evidence. With the “search”

limited to the examination of the tire on the wheel and

the taking of paint scrapings from the exterior of the

vehicle left in the public parking lot, we fail to compre-

hend what expectation of privacy was infringed.’ Stated

* Petitioner contends that Lewis’ car keys and the parking lot claim

check were seized in plain view as an incident to his arrest, and that

this seizure served to transfer constructive possession of the vehicle

which could then be searched and seized as an instrumentality of the

crime. We feel that the District Court and the Court of Appeals

were correct in rejecting this argument. Irrespective of the plain

view or instrumentality analyses, the concept of constructive pos-

session has not been found to justify the search or seizure of an

item not in actual possession.

7 As has been noted, the arrest was made at the Office of the Divi-

sion of Criminal Activities; but the examination of the vehicle took

place some time later at the police impoundment lot. This difference

in time and place eliminates any search-incident-to-an-arrest

contention.

“The rule allowing contemporaneous searches is justified, for ex-

ample, by the need to seize weapons and other things which might

be used to assault an officer or effect an escape, as well as by the

8 CARDWELL v. LEWIS

simply, the invasion of privacy, “if it can be said to exist,

is abstract and theoretical.” Air Pollution Variance

Board v. Western Alfalfa Corp., — U.S.—, — (1974).

- Under circumstances such as these, where probable cause

exists, a warrantless examination of the exterior of a car

is not unreasonable under the Fourth and Fourteenth

Amendments.

Here, it has been established and is conceded that the

police had probable cause to search Lewis’ car. An auto-

mobile similar in color and model to his car had been

seen leaving the scene of the crime. This similarity was

corroborated by comparison of the paint scrapings taken

from the victim’s car with the color and paint of Lewis’

automobile. Lewis had had repair work done on his car

immediately following the death of the victim. And he

had a nexus with Radcliffe on the day of death. All this

provided reason to believe that the car was used in the

commission of the crime for which Lewis was arrested.

Cooper v. California, 386 U. S. 58, 61 (1967).

Ill

Concluding, as we have, that the exatnination of the

exterior of the vehicle upon probable cause was reason-

need to prevent the destruction of the crime—things which might

easily happen where the weapon or evidence is on the accused's per-

"gon or under his immediate control. But these justifications are

absent where a search is remote in time or place from the arrest.

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 (1964):

See also Chambers v. Maroney, 399 U.S., at 47.

* Again, we are not confronted with any issue as to the propriety

of a search of a car’s interior. “Neither Carroll, supra, nor other

cases in this Court require or suggest that in every conceivable cir-

cumstance 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, 300 U. S., at 50.

CARDWELL v. LEWIS 9

able, we have yet to determine whether the prior

impoundment of the automobile rendered that examina-

tion a violation of the Fourth and Fourteenth Amend-

ments. We do not think that, because the police im-

_pounded the car prior to the examination, which they

could have made on the spot, there is a constitutional

barrier to the use of the evidence obtained thereby. Un-

der the circumstances of this case, the seizure itself was

not unreasonable.

Respondent asserts that this case is indistinguishable

from Coolidge v. New Hampshire, 403 U. S. 443 (1971).

We do not agree. The present case differs from Coolidge

both in the scope of the search ° and in the circumstances

of the seizure. Since the Coolidge car was parked on the

defendant’s driveway, the seizure of that automobile re-

quired an entry upon private property. Here, as in

Chambers v. Maroney, 399 U. S. 42 (1970), the auto-

mobile was seized from a public place where access was

not meaningfully restricted. This is, in fact, the ground

upon which the Coolidge plurality opinion distinguished

Chambers, 403 U.S., at 463 n. 20. See also Cady v. Dom-

browski, 413 U.S., at 446-447.

In considering whether the lack of a warrant to seize

a vehicle invalidates the otherwise legal examination of

the car, Chambers is highly pertinent. In Chambers,

four men in an automible were arrested shortly after

an armed robbery. The Court concluded that there .

was probable cause to arrest and probable cause to search

the vehicle. The car was taken from the highway to

* Coolidge concerned a thorough and extensive search of the en-

tire automobile including the interior from which, by vacuum sweep-

ings, incrimimating evidence was obtained. A search of that kind

raises different and additional considerations not present in the

examination of a tire on an operative wheel and in the taking of

exterior paint samples from the vehicle in the present case for

which there was no reasonable expectation of privacy.

_

the police station where, some time later, a search pro-

ducing incriminating evidence, was conducted. We

stated: ,

“For constitutional purposes, we see no difference

between on the one hand seizing and holding a car

before presenting the probable cause issue to a

magistrate and on the other hand carrying out an

immediate search without a warrant. Given prob-

able cause to search, either course is reasonable under

the Fourth Amendment .... The probable-cause

factor still obtained at the station house and so did

the mobility of the car unless the Fourth Amend-

ment permits a warrantless seizure of the car and

the denial of its use to anyone until a warrant is

secured. In that event there is little to choose in

terms of practical consequences between an immedi- |

10 CARDWELL v. LEWIS

ate search without a warrant and the car’s immobili-

zation until a warrant is obtained.” 399 U.S., at 52.

The fact that the car in Chambers was seized after

being stopped on a highway, whereas Lewis’ car was

seized from a public parking lot, has little, if any, legal

significance."° The same arguments and considerations

of exigency, immobilization on the spot, and posting a

guard obtain. In fact, because the interrogation session

%° Before the District Court, the State argued that Lewis had con-

sented to the seizure of his car by requesting that the police impound

it for safekeeping. The District Court stated,

“Viewing the evidence im the light most favorable to the State,

petitioner [Lewis] did not clearly and unequivocally consent to the

seizure and search of the automobile. The testimony .. . established,

at most, that petitioner consented to their taking custody of the car

for safekeeping. There is no evidence that petitioner consented, ex-

pressly or impliedly, to a seizure of the automobile for purposes of a

search.” 354 F. Supp., at 37-38.

Inasmuch as we hold the seizure to be justified under Chambers, we do

not reach the issue of Lewis’ consent.

CARDWELL v. LEWIS 11

ended with awareness that Lewis had been arrested and

that his car constituted incriminating evidence, the in-

centive and potential for the car’s removal substantially

increased. There was testimony at the federal hearing

that Lewis asked one of his attorneys to see that his wife

and family got the car, and that the attorney relinquished

the keys to the police in order to avoid a physical con-

frontation. 356 F. Supp., at 33. In Chambers, all occu-

pants of the car were in custody and there were no

means of relating this fact or the location of the car

(if it had not been impounded) to a friend or confederate.

Chambers also stated that a search of the car on the spot

was impractical because it was dark and the search could

not be carefully executed. 399 U.'S., at 52 n.10. Here

too, the seizure facilitated the type of close examination

necessary.”

Respondent contends that here, unlike Chambers, prob-

able cause to search the car existed for some time prior to

arrest and that, therefore, there were no exigent circum-

stances. Assuming that probable cause previously ex-

isted, we know of no case or principle that suggests that

the right to search on probable cause and the reasonable-

ness of seizing a car under exigent circumstances are fore-

closed if a warrant was not obtained at the first practicable

moment. Exigent circumstances with regard to vehicles

are not limited to situations where probable cause is un-

foreseeable and arises only at the time of arrest. Cf.

Chambers, 399 U. S., at 50-51. The exigency may arise

at any time, and the fact that the police might have ob-

**To make a comparison with a paint scraping required that a

section of the painted exterior that had not been recently repaired be

sampled. This conceivably could necessitate several scrapings if the

first sample was not conclusive after laboratory analysis. Similarly,

to make a cast of the tire tread on the operative wheel would require

laboratory equipment.

2 CARDWELL v. LEWIS

tained a warrant earlier does not negate the possibility of

& current situation’s necessitating prompt police action.’

The judgment of the Court of Appeals ‘is reversed.

It is so ordered.

12 We do not address the question found to be determinative in

Mr. Justice Powetu's concurring opinion. This question was not

raised or briefed by the parties.

SUPREME COURT OF THE UNITED STATES

No. 72-1603

Harold J. Cardwell, Warden,)On Writ of Certiorari to

Petitioner, the United States Court

v. of Appeals for the Sixth

Arthur Ben Lewis. Circuit.

[June 17, 1974]

Mk. Justice PoweE., concurring in the result.

I would reverse the judgment of the Court of Appeals

for the reasons set forth in my concurring opinion in

Schneckloth v. Bustamonte, 412°U. §. 218, 250 (1973).

As stated therein, I would hold that “federal collateral

review of a state prisoner’s Fourth Amendment claims—

claims which rarely bear on innocence—should be con-

fined solely to the question of whether the petitioner

was provided a fair opportunity to raise and have adjudi-

cated the question in state courts.” Id., at 250. In this

case there is no contention that petitioner was denied a

full and fair opportunity to litigate his claim in the

state courts.

wan

SUPREME COURT OF THE UNITED STATES

No... 72-1603

Harold J. Cardwell, Warden,) On Writ of Certiorari to

Petitioner, the United States Court

. v. of Appeals for the Sixth

Arthur Ben Lewis. Circuit.

[June 17, 1974]

Mr. Justice Stewart, with whom Mr. Justice Douc-

Las, Mr. Justice BRENNAN, and Mr. Justice MARSHALL

join, dissenting.

The most fundamental rule in this area of constitu-

tional 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

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.’

In casting about for some way to avoid the impact

of our previous decisions, the plurality opinion first sug-

gests, ante, at 4-5, 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

1 This dissent is directed toward the search-and-seizure analysis

in Mr. Justice Buacxuun’s plurality opinion. Like the plurality,

I do not consider the issue raised by Mr. Justice Powsg.1’s con-

currence, it having been neither briefed nor argued by the parties.

—

2 CARDWELL »v. LEWIS

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 Amend-

ments protect against “unreasonable searches and setz-

ures,” 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 recog-

nized ‘a so-called “automobile exception” to the constitu-

tional requirement of a warrant. But “[t]he word ‘auto-

mobile’ 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

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 doc-

trine 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 up-

hold 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

_CARDWELL v. LEWIS 3

the car or meddled with it during the time necessary to

obtain a search warrant. And there was no realistic pos-

sibility 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 11, that there was a “po-

tential for the car’s removal” during the period immedi-

ately 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.’ Since the authorities had taken care

to procure an arrest. warrant even before the respondent

arrived for questioning, it can scarcely be said that prob-

able 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 in-

terrogation, the fear that evidence might be destroyed

was hardly an exigency, particularly when it is remem-

bered that no such fear prompted a seizure during all the

preceding months whole the defendant, though under

investigation, had been in full control of the car... This

* Even the Solicitor General, who appeared as amicus curiae urging

a reversal of the Court of Appeals’ judgment in this case, has can-

didly admitted in his brief that “no satisfactory reason appears for

the failure of the law enforcement officers to have obtained a war-

rant—there appears on the facts of this case to have been no real

likelihood that respondent would have destroyed or concealed the

evidence during the time required to seek and procure a warrant.”

*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 6, 10-11. Even putting to one side the question

of how the respondent could have acted to destroy any evidence

4 CARDWELL v. LEWIS

is, quite simply, a case where no exigent circumstances

existed.*

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 pro-

tection 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.

while he was in police custody, the fact is that he was fully aware

of official suspicion during several months preceding the interroga-

tion. 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 7, n. 7, the peti-

then a search made st another place, without a warrant, is simply

not incident to the arrest.” Preston v. United States, 376 U. S.

364, 367.

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