Professor Lori Hoetger’s article, “Rethinking the Automobile Exception,” was published in the University of Cincinnati Law Review.
The introduction is below:
The so-called “automobile exception” to the Fourth Amendment allows state actors to warrantlessly search automobiles based on probable cause that the automobile contains contraband, weapons, or other instrumentalities of an offense. The Supreme Court, in Carroll v. United States, initially reasoned this exception was necessary due to the inherent mobility of automobiles. The Court later turned to the justification that people have a lessened expectation of privacy in their vehicles compared to places that traditionally receive the greatest Fourth Amendment protection, such as one’s home. However, in light of these justifications, the automobile exception is both incredibly broad, encompassing vehicles whose occupants are not a flight risk or otherwise destroying evidence, and invasive, authorizing searches of all compartments and containers within a vehicle despite steps the owner may have taken to keep its contents private. The low probable cause standard combined with the broad exception has opened the door to abuse and discriminatory application. This Article addresses the underlying justifications for the automobile exception and concludes that rethinking the expansive exception to the warrant requirement is necessary. First, the radical transformation of modern vehicles over the last century calls into question the assumption of a lessened expectation of privacy. Vehicles are no longer merely a means of getting from point A to point B; rather, they are veritable computers on wheels, containing a wealth of private information. This Article explores the lessened expectation of privacy rationale through results of an original survey of how people use their vehicles and view privacy within them. This original survey provides evidence that people do, in fact, expect some measure of privacy in their cars. Lastly, the automobile exception can no longer be based on exigency due to technological advancements in warrant procedures. This Article is the first to propose a particular limitation on the automobile exception. Borrowing from state courts that have also found the automobile exception unsatisfactory, this Article proposes a rebalancing of the interest between privacy and the need for immediate searches. This requires only allowing warrantless searches when they are truly required due to exigency and ensuring the scope of the search is closely tied to the underlying justifications. Ultimately, the automobile exception should be limited to circumstances where the state can prove each of the following elements: (1) the state actor has probable cause the automobile contains weapons, contraband, or instrumentalities of an offense; (2) the state actor has reasonable suspicion there is urgent need to immediately enter and search the vehicle, such as due to the need to render emergency aid, pursue a fleeing felon, or prevent the imminent destruction of evidence; and (3) the search is limited to the duration of the exigency and only to those areas that have a lessened expectation of privacy.
