In another case, a person told the military police that he smelled marijuana coming from an
automobile at a parking lot on Fort Hood, Texas. He stated that the vehicle was occupied by two
individuals. A patrol was sent to the scene to investigate. A subsequent search of the car was upheld,
even though the automobile was immobilized (surrounded by six MP and its route of possible escape
blocked by a patrol vehicle). The court applied the automobile exception due, in part, to the "inherent
mobility factor" and also due to the vehicle's lesser expectation of privacy. U.S. v. Bishop, 4 MJ 671
(ACMR, 1977).
Understand the purpose of the exemption, and do not attempt to stretch it too far. Remember, it is
based on the impracticability of obtaining a search warrant/authorization under certain circumstances.
The existence of probable cause is not alone sufficient; there must also be the presence of exigent
circumstances. This is a limited exception to the requirement for a warrant, and does not completely
swallow up the Fourth Amendment. The exemption, then, was not applicable in a situation where the
police intended to search an automobile which they expected to find at the suspect's residence, in his
driveway: "Since the police knew of the presence of the automobile and planned all along to seize it,
there was no exigent circumstances to justify their failure to obtain a warrant. There was, in short, no
reason why the police couldn't have gotten a warrant prior to going to the suspect's home." Coolidge v.
New Hampshire, 29 L.Ed.2d 564 (1971).
Remember, this search requires both probable cause and exigent circumstances. If the circumstances
clearly show that there is no exigency or emergency situation, and no reason why a warrant couldn't be
obtained, then the courts will not apply the exception. U.S. v. Mota Aros, 8 MJ 121 (CMA, 1979). In
U.S. v. Mills, 46 CMR 630 (ACMR, 1972), the accused was apprehended at his residence for a robbery.
His wife was briefly questioned at the scene, but she was not taken into custody. Although the car was
there in the driveway, it wasn't searched at this time. This was true even though they had a description
of the car, which was the one used by the robber. Two hours later after the accused had been
apprehended and taken away, the police returned to the residence and searched the car. The court
held: "Under the circumstances present in the instant case--where police at the time of appellant's
apprehension knew of the probable role the car had played in the alleged robbery, where at the time of
the apprehension several police officers were on the scene who could have been detailed to remain
with and guard the automobile pending obtaining a search warrant, where appellant's wife had had
ample opportunity during the 2-hour period between appellant's apprehension and the search of the
automobile to destroy any incriminating evidence from the car had she been so disposed, where
appellant was in police custody and had no access to the automobile, and where officials were on duty
and available who were authorized to issue search warrants--there simply were no exigent
circumstances justifying a warrantless search. In short, the facts of this case do not support the
conclusion that this is an instance where it is not practicable to secure a warrant...and the automobile
exception, despite its label, is simply irrelevant."
1-61
MP1021
Previous Page
