As lawyers, we’ve lived with, and confronted, the automobile exception so many times that we rarely give much thought to its history, and how the slide down the slope happened to reach the point where it now stands, that courts view automobile searches as a simple equation:  Car + Probable Cause = Lawful Search.  Indeed, even the probable cause part of the equation is honored more in the breach, so that it works out to be Car + Any half-baked reason to search = Lawful Search.

In his consideration of the exception, Ken recognizes that the rationale belying the exception was far more reasonable in the prohibition era than today, given that we have cellphones and computers, and cops can obtain a warrant within minutes from a neutral magistrate anywhere in the world.  But he has a rejoinder to technology, which I will call the Kentucky Response:

The Kentucky Response falls into the category of the lowest common denominator, meaning that everyone’s constitutional rights become subject to the neighborhood with lousy cell service.  Of course, the local police could always install proper radio communications to enable them to live like civilized people (Ken’s language, not mine), but the failure to do so entitled them to perpetuate the automobile exception for the rest of us.

Where this explanation gets far more interesting is the reaction by Mark at WindyPundit.  Not being a lawyer, but being an extraordinarily astute observer, Mark offers the babe-in-the-woods reaction to Ken’s explanation.

More to the point, as Ken says later:

In the modern era, the use of Carroll assumes that smugglers are smart enough to try to ply their trade in areas where it will be difficult for LEO’s to easily get search warrants.

I’m deep in my ignorance of the law here, but it seems to me that the exception should only apply when it actually is difficult to get a warrant, not just because it might possibly be difficult in general. It’s possible that what I just said is actually what Ken meant, and I just didn’t get it.

Ken sums up the hypothetical deputy’s choices this way:

If the deputy releases Jones, so he can go get a warrant, Jones will be back across the border in 5 minutes. If the deputy secures Jones in the back of his car while he drives 10 miles down the road where he can get radio contact he has extended a seizure of a person without an arrest. The least constitutionally intrusive practical act is a search of the vehicle on the scene.

This argument has a lot of merit, but let’s be straightforward about one thing: The least constitutionally intrusive act is to let Jones go. Yes, it means the “bad guy” will get away. But if our rights only apply when they don’t interfere with the activities of government agents, they’re not really rights at all.

While a bit fact-bound, Mark’s poking makes an important point.  The exception has long since been disconnected from the rationale, an unfortunately typical outcome as one slides down the slippery slope.  More significantly, Mark nails the critical issue that courts have long since forgotten:  The point of a constitutional right isn’t to figure out ways to circumvent it, but to enforce it.  As he says, “bad guys” will occasionally get away as a result of constitutional rights.  And good guys will be allowed to be secure in their persons and effects.  That’s the trade-off that out forefathers came up with, and it wasn’t meant to be undermined whenever it resulted in an inconvenient situation for the police.

In an addendum, Ken adds this:

the federal supreme court has entirely excised any exigent circumstances requirement so that all an officer needs to do the search is mobility of the car and probable cause that contraband is in it

In other words, Deputy Smith could stop Jones’s SUV right in front of the county courthouse at 3 in the afternoon on a work day, and he could still search it without a warrant because the car is mobile. This sounds like a bad case of remembering the rubric while forgetting the rationale.

It’s good to see Mark borrowing one of my favorite phrases, particularly since it’s a perfect fit.  The automobile exception, as originated in Carroll, is an anachronism in itself, that has grown to be a monster and swallowed the rule.  Police can stop and search a car essentially at will, with the mere incantation of “furtive movements” or “unusual nervousness” justifying a search for weapons, and then extended to all areas of the car, including all sealed containers within it.  They can strip the exterior off a car to search for secret compartments.  All without anyone’s approval or liability for their actions.  And if they have a person they want to stop and search, they need only wait until he leaves his house and drives away to nail him.  All this, even though the justification for Carroll has long since ended.

Some judges are disinclined to ignore the rationale behind the automobile exception, and from time to time they hold that a search of an automobile violates a defendant’s constitutional rights. But most apply the simple equation, and any search of a car, no matter how weak or frivolous the justification, is just fine with them.

And the best reason Ken can come up with the maintain the automobile exception is the Kentucky Response, Remember that if your car is ever stopped and searched.  Even if it’s in front of the courthouse.