Gallagher, Katherine A.

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University of Tulsa College of Law

Tulsa Law Review Volume 7 Issue 2 1971 Criminal Law: Constitutional Search Katherine A. Gallagher Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Katherine A. Gallagher, Criminal Law: Constitutional Search, 7 Tulsa L. J. 197 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol7/iss2/8 This Casenote/Comment is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. CONSTITUTIONAL SEARCHCRIMINAL LAW: CONSTITUTIONAL SEARCHWith regard to the search and seizure provision of thefourth amendment' the constitutional distinction betweenhouses and cars enunciated in Carroll v. United States2 hasbeen exacerbated by two recent decisions of the SupremeCourt: Vale v. Louisiana3 and Chambers v. Maroney.4In Vale the appellant, a known narcotics addict, was ar-rested on the front steps of his house by officers who hadestablished surveillance of the premises. He was convictedon the admission into evidence of a quantity of narcoticsobtained from a rear bedroom of his house. The decision wasreversed by the Supreme Court.In Chambers, the petitioner was arrested in an automobilefollowing a police radio alert and was convicted on evidencetaken from the car after the occupants had been removedfrom the vehicle and it had been taken to the police station.The conviction was upheld. In neither of these cases did thearresting officers have search warrants.It is recognized within the field of criminal procedurethat there are times in which the exigency of the situation1 The fourth amendment provides: The right of the peopleto be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures, shall not be vio-lated and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describ-ing the place to be searched, and the persons or things to beseized. U.S. CoNsT. amend. IV.2 Carroll v. United States, 267 U.S. 132 (1925).8 Vale v. Louisiana, 399 U.S. 30 (1970).4 Chambers v. Maroney, 399 U.S. 42 (1970). This note isconfined to the fourth amendment aspects of these twocases. In Vale, the issues of harmless error and whetherpetitioner was afforded effective assistance of counsel werealso discussed.197111Gallagher: Criminal Law: Constitutional SearchPublished by TU Law Digital Commons, 1971TULSA LAW JOURNALexcuses failure to obtain a search warrant. If the search hasbeen consented tou or is incident to a lawful arrest" no war-rant is needed; nor is a warrant required if the officer is in"hot pursuit" of a suspect.1Furthermore, no warrant is necessary when an emer-gency situation exists. If there is probable cause to believethe goods no longer will be present when the officer returnswith the warrant, either because they have been destroyed 8or have been removed from the jurisdiction, a lawful searchmay be conducted without a warrant. The general rule hasbeen established, however, that searches conducted withoutwarrants are unreasonable unless "those who seek exemptionfrom the constitutional mandate [show] that the exigenciesof the situation made that course imperative."105 Zap v. United States, 328 U.S. 624 (1946) (to obtain gov-ernment business petitioner agreed to permit inspectionof his accounts and records).8 United States v. Rabinowitz, 339 U.S. 56 (1950) (upheld thesearch of desk and file cabinets in one room office thoughthere was time to obtain a search warrant and overruledTrupiano v. United States, 334 U.S. 699 (1948) which al-lowed search only when obtaining a warrant would havebeen impractical; both these decisions were modified byChimel v. California, 395 U.S. 752, 763 (1969) which heldthe search must be confined to "the area from withinwhich he might gain possession of a weapon or destruct-ible evidence.")7 Warden v. Hayden, 387 U.S. 294 (1967) (involving armedrobbery where police entered and searched suspect's homevithin five minutes after the robbery had taken place).8 Schmerber v. California, 384 U.S. 757 (1966) (taking bloodsample from petitioner accused of driving while Intoxi-cated).9 Carroll v. United States, 267 U.S. 132 (1925) (search andseizure of automobile).10 McDonald v. United States, 335 U.S. 451, 456 (1948).[Vol. 7, No. 22Tulsa Law Review, Vol. 7 [1971], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol7/iss2/8CONSTITUTIONAL SEARCHBoth Vale and Chambers turn on the question of whetheror not the exigencies of the particular situation were suf-ficient to not require a search warrant.In Vale policemen had the appellant's home under sur-veillance and while they were watching the home witnessedwhat they believed to be an illegal narcotics transaction tak-ing place on Vale's driveway. The officers subsequently ar-rested Vale on the front steps of his home, informed himthat they were going to search the house and advised himof his Constitutional rights. After entering the front roomand ascertaining there was no other person in the house, thepolice were about to commence their search when Vale'smother and brother returned home.The majority in Vale disagreed with the Louisiana Su-preme Court holding the search was not within the imme-diate vicinity of the arrest and thus was not a search madeincident to arrest. The Court stated "if a search of a houseis to be upheld as incident to an arrest, that arrest musttake place inside the house." Quoting from Agnello v. UnitedStates, 2 the Court maintained that "[b]elief, however wellfounded, that an article sought is concealed in a dwelling housefurnishes no justification for a search of that place without awarrant,"18 and further noted that this "basic rule has neverbeen questioned in this Court."' 4Having established the situation dicl not qualify as asearch incident to a valid arrest, the Vale Court turned tothe exigencies which might permit a search without a war-rant. The Court based its decision on two grounds, bothof which are attacked by dissenting Justices Black and Burger.1 399 U.S. at 33-34.12 269 U.S. 20, 23 (1925).13 399 U.S. at 34.14 399 U.S. at 34, quoting Stoner v. California, 376 U.S. 483,487 n. 5 (1964).197113Gallagher: Criminal Law: Constitutional SearchPublished by TU Law Digital Commons, 1971TULSA LAW JOURNALInitially, the majority ruled the Louisiana court erred inholding the search valid because it involved easily disposablenarcotics. The record indicated the searchers had ascertainedthat no one was in the house when they began their search,the majority therefore maintained the emergency rationalecould not apply as the evidence was in no immediate dangerof being destroyed.However, the dissent pointed out Vale's mother andbrother returned home before the fruitful search had beenexecuted and they were capable of destroying the evidence.It is a general rule that the reasonableness of the search varieswith the circumstances"5 and the dissent believed the circum-stances justified a search without a warrant. The dissentadded it made no difference whether the search was inci-dental to an arrest or not; the mere fact that the motherand brother had arrived home placed this search under theemergency exception. The majority observed the goods werenot in the process of destruction at the time of entry; thedissent countered with the observation that contraband neednot be in the process of destruction for the rule to apply.It would be sufficient, the dissent stated, if "[the] evidenceor contraband was threatened with removal or destruction".10In addition, the Vale majority leaned on the fact that theofficers had already procured two warrants for the appellant'sarrest; it pointed out there was "no reason . . . to supposeit impracticable for them to obtain a search warrant as well.11 715 Compare Henry v. United States, 361 U.S. 98 (1959) withBrinegar v. United States, 338 U.S. 160 (1949); Comment,Search and Seizure of an Automobile Incident to an Arrestfor an Offense Other than a Traffic Violation, 31 Mo. L. REv.436 (1966). See Comment, Interference With the Right toFree Movements: Stopping and Search of Vehicles, 51 CALi1.L. REv. 907 (1963).16 399 U.S. at 39 (dissenting opinion), quoting, Johnson v.United States, 333 U.S. 10 (1948).IT Id. at 35.[Vol. 7, No. 24Tulsa Law Review, Vol. 7 [1971], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol7/iss2/8CONSTITUTIONAL SEARCHThe dissent argued, however, the arrest warrants were issuedbecause Vale's bond had been increased on two charges pend-ing against him, not because of present misconduct. Thus,the dissent believed that the officers would have had noprobable cause to obtain the warrants. The probable causedid not arise until the officers saw what they believed tobe an illegal narcotics transaction minutes before they ar-rested Vale and conducted the search.In Chambers, the Court distinguished Vale by sayingthe same consequences of Chambers may not follow whenthere is unforseeable cause to search a house. The courtjustified the distinction by adding ".... as Carroll . . . held,for the purposes of the Fourth Amendment there is a con-stitutional difference between houses and cars."18The facts of the Chambers case were somewhat differentfrom those of Vale. A Gulf service station was robbed andone of the attendants was instructed to place the money ina right hand glove. Two teenagers, who witnessed the hap-penings, reported the incident to the police and a policebulletin was issued describing the car and the clothing ofthe robbers. Within the hour, a car fitting the descriptiongiven by the teenagers was stopped and the clothes of the occu-pants matched the description given by the service stationattendant. The occupants were arrested and the car wasdriven to the police station. The first search of the car re-vealed nothing; but after interrogating the occupants, thepolice conducted a thorough search of the car which revealedrevolvers, a right hand glove filled with change, and creditcards bearing the name of a service station attendant whohad been robbed the previous week.As in Vale, the Chambers Court held the arresting officershad probable cause to make the arrest, but the search could18 399 U.S. at 52.1971]5Gallagher: Criminal Law: Constitutional SearchPublished by TU Law Digital Commons, 1971TULSA LAW JOURNALnot be justified as being incident to the arrest. This searchwas made at the police station some time after the arrestand "[o]nce the accused is under arrest and in custody, thena search made at another place, without a warrant, is simplynot incident to the arrest."'19 Therefore, the Court proceededas it did in Vale, by examining the exigencies of the par-ticular situation to determine if a search could be sustainedwithout a warrant. Again, it was a matter of probable causeas to whether an emergency arose such that if a search was.not made at that moment, the evidence would be destroyedor moved out of the jurisdiction. Whereas in Vale the Courtheld that there was not probable cause that the goods wouldbe destroyed, in Chambers it felt that the search was justified.In Chambers there is little doubt there existed probablecause at the time of the arrest. The majority of the Courtmaintained that since the probable cause factor was presentat the arrest, it continued until the car was safely at thestation house, the occupants removed, one fruitless searchhad taken place, the occupants interrogated and the carsearched a second time. The majority stated:Arguably, because of the preference for a magis-trate's judgment, only the immobilization of the carshould be permitted until a search warrant is ob-tained; arguably, only the 'lesser' intrusion is per-missible until the magistrate authorizes the 'greater'.But which is the 'greater' and 'lesser' intrusion isitself a debatable question and the answer may de-pend on a variety of circumstances. For constitutionalpurposes, we see no difference between on the onehand seizing and holding a car before presenting theprobable cause issue to a magistrate and on the otherhand carrying out an immediate search without awarrant. Given probable cause to search, eithercourse is reasonable under the Fourth Amendment.. . . The probable-cause factor still obtained at the19 Id. at 47, quoting, Preston v. United States, 376 U.S. 364367 (1944).[Vol. 7, No. 26Tulsa Law Review, Vol. 7 [1971], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol7/iss2/8CONSTITUTIONAL SEARCHstation house and so did the mobility of the carunless the Fourth Amendment permits a warrant-less seizure of the car and the denial of its use toanyone until a warrant is secured.20There are two cases which must be mentioned in orderto understand the distinction between the majority and thedissent in this case. While the dissent relied on Preston v.United States21, the majority relied on Cooper v. California22and attempted to distinguish it from Preston. In Preston,occupants of a car were arrested for vagrancy and theircar was impounded upon their arrest. The car was notseached at the time of the arrest, but was towed to a garagewhere a search produced enough evidence to convict thepetitioner and others of conspiracy to rob a federally insuredbank. A unanimous Court reversed, stating ". . . since themen were under arrest at the police station and the car wasin police custody at a garage [there was no] danger thatthe car would be moved out of the locality or jurisdiction."Thus a warrantless search failed to "meet the test of rea-sonableness under the Fourth Amendment."24 Justice Harlan,dissenting in Chambers, construed this statement to "...have been based on the premise that the more reasonablecourse was for the police to retain custody of the car forthe short time necessary to obtain a warrant."2 5On the other hand, Cooper involved the warrantlessseizure of heroin from the glove compartment of the pe-titioner's impounded car after the petitioner was arrestedfor a narcotics violation. A five to four majority of theCourt upheld the conviction. An attempt was made by themajority to distinguish Cooper from Preston by pointing20 399 U. S. at 51-52.21 376 U.S. 364 (1964).22 386 U.S. 58 (1967).2 376 U. S. at 367.24 Id.25 399 U.S. at 65.197117Gallagher: Criminal Law: Constitutional SearchPublished by TU Law Digital Commons, 1971TULSA LAW JOURNALout that the police seized the car in Cooper pursuant to statelaw and were required to hold it until forfeiture proceed-ings were terminated some four months after it was lawfullyseized.26 The Court held it would have been unreasonableto rule the police could not search the car, even for theirown protection, if they were to retain it in their garage. TheCooper majority interpreted the Preston case as being in-cident to arrest and thus inapplicable in the Cooper situation.Although Preston was decided predominantly on that basis,Justice Harlan in Chambers pointed out the case was notstrictly limited as being one of a search incident to an arrest.He substantiates his conclusion by pointing to that state-ment in Preston in which the Court attempted to decide ifthe situation was "... . such as to fall within any of the ex-ceptions to the constitutional rule that a search warrant mustbe had before a search may be made. '27 Justice Harlan addedhowever, "[f]idelity to this established principle requires that,where the exceptions are made to accommodate the exigenciesof particular situations, those exceptions be no broader thannecessitated by the circumstances presented.2 8 Thus Harlanfeels discarding the Preston principle for the ruling in Cham-bers which purports to follow Cooper is at odds with thefourth amendment.It is difficult to reconcile these two cases unless oneaccepts the distinction in Carroll that there is a constitu-tional difference between cars and houses and extends thatdistinction to include cars and houses per se. When one ex-amines the exigencies in Vale and in Chambers and considersthe ruling and the dissents, no other conclusion logically canbe reached. In the Vale case, where the mother and brother26 California state law required the seizure of a car after anarrest for narcotics violation. Law of June 22, 1955, ch.1209 §1, [1955]. Calif. Laws 1955 (repealed 1967).27 399 U.S. at 65 (dissenting opinion), quoting, Preston v. Unit-ed States, 376 U.S. 364, 367 (1964).28 399 U.S. at 61 (dissenting opinion).[Vol. 7, No. 28Tulsa Law Review, Vol. 7 [1971], Iss. 2, Art. 8https://digitalcommons.law.utulsa.edu/tlr/vol7/iss2/8CONSTITUTIONAL SEARCHcould have destroyed the contraband evidence had the officersleft to obtain a warrant, the court held the search invalid.In the Chambers case, where the car was at the station andthe occupants under arrest, the same Court, sitting the sameday, upheld the search. Logically, it would appear that theexigencies would dictate opposite conclusions. The distinc-tion perceived in Carroll provides some logic for these hold-ings; however, that distinction does not go far enough. TheCourt in Carroll was concerned with the admissability ofcontraband liquor seized in a warrantless search of a caron the highway. The Court stated:. . . the guaranty of freedom from unreasonablesearches and seizures by the Fourth Amendment hasbeen construed, practically since the beginning of theGovernment, as recognizing a necessary differencebetween a search of a store, dwelling house or otherstructure in respect of which a proper official warrantreadily may be obtained, and a search of a ship,motor boat, wagon or automobile, for contrabandgoods, where it is not practicable to secure a warrantbecause the vehicle can be quickly moved out ofthe locality or jurisdiction in which the warrantmust be sought.29Had the Court in Chambers not chosen to justify its de-cision on the basis of Carroll, one validly could assume thatthe Court was recognizing a distinction between the two en-closures. However, there remains some doubt because Carrolland the cases following have justified the distinction bystating if the goods are left in the car there is a danger oftheir being transported out of the jurisdiction. In Chambers,there was no danger of the car's being moved at that time.Nor did the Court choose to dismiss the case solely on theCooper holding that the police should have been afforded anopportunity to search the car for their own protection, albeitthe time element may have been a deciding factor in Cooper.20 267 U.S. at 153.197119Gallagher: Criminal Law: Constitutional SearchPublished by TU Law Digital Commons, 1971

Criminal Law: Constitutional Search

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Criminal Law: Constitutional Search

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