MR. JUSTICE BLACKMUN announced the judgment of the Court and an opinion in which the CHIEF JUSTICE, MR. JUSTICE WHITE, 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 introduced at the respondent's state court trial for first-degree murder. He was convicted. The Federal District Court, on a habeas corpus application, ruled that the examination 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.
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 conviction. 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 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. Radcliffe 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 questioned. On October 9, he was asked to appear the next morning at the Office of the Division of Criminal Activities in Columbus for further interrogation.
On October 10, at 8 a. m., a warrant for respondent's arrest was obtained.
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 approximately 5 p. m. Two hours earlier, Lewis had been permitted 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 claim check were released to the police. A tow truck
The impounded car was examined the next day by a technician from the Ohio Bureau of Criminal Investigation. 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 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.
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 implicates
The common-law notion that a warrant to search and seize is dependent upon the assertion of a superior government interest in property, see, e. g., 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 possession 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. 294, 302-306 (1967). Rather than property rights, the primary object of the Fourth Amendment was determined 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 essential purpose of the Fourth Amendment to shield the citizen from unwarranted 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.S. 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 stringent
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) (POWELL, 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 repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view. See People v. Case, 220 Mich. 379, 388-389,
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.
Here, it has been established and is conceded that the police had probable cause to search Lewis' car. An automobile 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).
Concluding, as we have, that the examination of the exterior of the vehicle upon probable cause was reasonable,
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
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 automobile 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
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.
Respondent contends that here, unlike Chambers, probable cause to search the car existed for some time prior to arrest and that, therefore, there were no exigent circumstances. Assuming that probable cause previously existed, we know of no case or principle that suggests that the right to search on probable cause and the reasonableness of seizing a car under exigent circumstances are foreclosed 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 unforeseeable and arises only at the time of arrest. Cf. Chambers, id., at 50-51. The exigency may arise at any time, and the fact that the police might have obtained
The judgment of the Court of Appeals is reversed.
It is so ordered.
MR. JUSTICE POWELL, 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.S. 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 confined solely to the question of whether the petitioner [for habeas corpus] was provided a fair opportunity to raise and have adjudicated the question in state courts." Ibid. In this case there is no contention that respondent was denied a full and fair opportunity to litigate his claim in the state courts.
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
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
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.
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.
"The rule allowing contemporaneous searches is justified, for example, 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 need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person 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. 42, 47 (1970).
"Viewing the evidence in 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, expressly 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.