The United States and New York State constitutions prohibit only unreasonable searches. Absent a few exceptions, warrantless searches “are per se unreasonable.” Arizona v. Gant, 129 S.Ct. 1710, 1716 (2009). Regarding the reasonableness of warrantless vehicle searches, New York State jurisprudence closely tracks that of the United States Supreme Court.
The inherent mobility of any sort of vehicle, be it “ship, motor boat, wagon or automobile” has, “practically since the beginning of the [federal] Government,” been sufficient to render a warrantless search of such vehicle for contraband reasonable, so long as there is probable cause to believe that the vehicle in question is in fact carrying contraband. Carroll v. United States, 267 U.S. 132, 150, 153-54 (1925).
Indeed, given the long history of a vehicle exception to the warrant requirement, individuals have “always . . . been on notice that movable vessels may be stopped and searched” without a warrant. United States v. Ross, 456 U.S. 798, 806 n.8 (1982).
In the 85 years since Carroll was decided, the courts have also held that the reduced expectation of privacy in one’s automobile, as compared with one’s home or office, provides further and arguably even greater support for the reasonableness of a warrantless vehicle search upon probable cause than the original justification of inherent mobility. The increased visibility of items in the passenger compartment of an automobile obviously engenders a diminished expectation of privacy in those items; they are, as a practical matter, exposed to public view.
Probable cause
Under the vehicle exception to the search warrant requirement, a vehicle may be searched where there is probable cause to believe that it contains contraband, evidence of a crime, a weapon, or, in a search connected with an arrest, a “means of escape.” Nothing beyond probable cause is necessary; specifically, no additional showing of exigency is required. In cases implicating the warrant exception where the vehicle search is accompanied by an arrest, there must be a “nexus” between the arrest and the search
Probable cause to search the vehicle may be established in numerous ways. The owner of the car may admit, after arrest at another location, that his automobile contains evidence and contraband. A passenger who has already been removed from the car may state that the passenger left contraband in the vehicle. A confidential informant’s tip that a known drug dealer will have drugs in his car can furnish probable cause to search the vehicle.
Observations of the defendant’s actions “outside the limited time frame” surrounding the arrest itself may at least help to establish probable cause for a search. Next, so long as there is probable cause to search a “lawfully stopped vehicle,” that search may encompass “every part of the vehicle and its contents that may conceal the object of the search.” Officers may, for example, engage in a warrantless search of a car’s trunk, bags inside the trunk, and closed containers inside the bags. They may also search the car’s glove box, and any hidden compartments within the vehicle.
Circuit Holds a Search is Not a “Search”
Now, per the Federal Second Circuit’s ruling earlier this year in United States v. Poller, police may use a smartphone’s camera application to look inside a car with tinted windows without getting a warrant. In Poller, officers in Waterbury, Connecticut, observed an individual possibly dealing drugs from his car. After he left the car, they approached and tried to open a door, but it was locked. And the windows were tinted. But one officer then took out his iPhone and turned on the camera app and pointed the phone’s lens at the car, enabling him to see through the tinted windows, and discovering what looked like two guns inside. A second officer did the same. A third officer then cupped his hands around his eyes and looked through the windshield. The officers towed the car and got a warrant to search it, recovering guns and drugs. The defendant moved to suppress, but his motion was denied.
The second circuit affirmed the decision at the suppression hearing, holding “the officers did not violate Poller’s reasonable expectation of privacy by using iPhone cameras to observe the car’s interior through its tinted windows, and therefore did not conduct a ‘search’ within the meaning of the Fourth Amendment.”
If this decision seems wrong to you, rest assured you’re not alone. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held the “use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a ‘search’ within the meaning of the Fourth Amendment.” That sounds awfully like what the Waterbury police did here, using technology to pierce a barrier and discover what normal observation couldn’t. However the Circuit decided that a person has a much greater expectation of privacy in one’s home than in one’s automobile. Be careful out there on the road, as the right to privacy in your car is different than the rights extended to you in your home and, as of now, police in certain jurisdictions may use smartphones to search inside a window-tinted car without a warrant.
The analysis of any car stop and subsequent search is always case specific. Judge Barry Kamins (Ret.), a partner at Aidala, Bertuna & Kamins, is an expert in this field and a phenomenal resource, and is the author of New York Search & Seizure.
Arthur L. Aidala, Esq is the managing partner of Aidala, Bertuna and Kamins. He is a former Kings County Assistant District Attorney and is the host of the “Arthur Aidala Power Hour” weekdays at 6pm on AM970 The Answer.
Michael Jaccarino is a partner at Aidala, Bertuna & Kamins. He is a proven trial lawyer and a defender of the accused.
