State v. Cox, 22638

• Decision Date: 09 October 1986
• Docket Number: No. 22638,22638
• Citation: 351 S.E.2d 570,290 S.C. 489
• Parties: The STATE, Petitioner, v. Timothy Dewayne COX, Respondent. . Heard
• Court: South Carolina Supreme Court

Page 570

351 S.E.2d 570

290 S.C. 489

The STATE, Petitioner, v. Timothy Dewayne COX, Respondent.

No. 22638.

Supreme Court of South Carolina.

Heard Oct. 9, 1986.

Decided Dec. 15, 1986.

Attorney Gen. T. Travis Medlock, Asst. Attys. Gen. Harold M. Coombs, Jr., and Norman Mark Rapoport, Columbia, and Sol. Joseph J. Watson, Greenville, for petitioner.

Chief Atty. William Isaac Diggs, of South Carolina Office of Appellate Defense, Columbia, for respondent.

PER CURIAM:

This Court issued a writ of certiorari to review the decision of the Court of Appeals in State v. Cox, 287 S.C. 260, 335 S.E.2d 809 (Ct.App.1985).

As modified, we affirm.

According to the State's case, Richard Armstrong (Armstrong) employed Respondent, Timothy Dewayne Cox (Cox), to kill one Gary Eades, with whose wife Armstrong had become romantically involved. Shortly after the murder Armstrong confessed to the police, telling them that the murder weapon, a shotgun, was in the trunk of Cox's automobile.

The police went to Cox's house to arrest him, but he was not there. Even though Cox's car was parked in the yard, the police made no search of it at that time.

The police thereafter arrested Cox at Armstrong's house, reciting to him Miranda warnings. Cox replied, "I'll tell you about it when I talk to my lawyer." Thereafter a detective initiated the following conversation with Cox: "Richard Armstrong told me that the ... shotgun that was used to shoot the Eades boy with is in the trunk of your automobile; is it there?" Cox responded that it was, signed a consent to search form and gave the police his keys. The shotgun was found in the trunk.

Over objection by Cox, he and Armstrong were prosecuted in a consolidated trial. Armstrong was tried as an accessory before and after the fact of murder, and Cox was tried as the principal in the murder. Both were convicted.

Two issues are presented here, first whether the shotgun was obtained as a result of an illegal search and seizure in violation of the Fourth and Fourteenth Amendments to the United States Constitution; and second, whether the trial judge erred by charging the jury that it could not find Armstrong guilty unless it also found Cox guilty.

The Court of Appeals ruled that police questioning of Cox regarding the gun violated his previously asserted right to counsel. Even so, the Court reasoned that the "independent source" rule was applicable to the facts of the case. The Court concluded, however, that the rule was not a waiver of Cox's protection from illegal searches, and proceeded to analyze the seizure of the shotgun under Fourth Amendment standards.

In a plurality opinion the Court held the "automobile exception" to the warrant requirement was not applicable because Cox's car was found at his residence. The Court, relying upon California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), concluded that "an automobile found parked at a person's home is protected from warrantless searches." 287 S.C. at 264, 335 S.E.2d at 811.

We disagree.

The automobile exception was first articulated in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Since Carroll, the doctrine has been applied on a case-by-case basis to various sets of facts. See generally cases cited in Annot., 66 L.Ed.2d 882, Validity of Warrantless Search of Motor Vehicles.

The two bases for the exception are: (1) the ready mobility of automobiles and the potential that evidence may be lost before a warrant is obtained; and (2) the lessened expectation of privacy in motor vehicles which are subject to governmental regulation.

The source of the Court of Appeals' ruling is the following language from Carney:

When a vehicle is being used on the highways, or if it is readily capable of such use and is found stationary in a place not regularly used for residential purposes--temporary or otherwise--the two justifications for the vehicle exception come into play. [Emphasis supplied].

471 U.S. at 392, 105 S.Ct. at 2070, 85 L.Ed.2d at 414.

The plurality interpreted this to mean that the automobile exception does not apply to any vehicle parked at a residence. However, Carney dealt with a motor home, or camper vehicle. Even though the language cited above may appear to apply to all motor vehicles, a close reading, in context, makes it clear that the Court was addressing only the inapplicability of the exception as to motor homes set up on a site and used as a residence. In the same paragraph from which the above sentence is cited, the Carney Court states "there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulations inapplicable to a fixed dwelling." [Emphasis supplied]. 471 U.S. at 393, 105 S.Ct. at 2070, 85 L.Ed.2d at 414. The emphasized pronoun "its" in this sentence clearly refers to a motor home.

No prior Supreme Court cases have recognized a distinction between vehicles parked in public and private places. Indeed, such a distinction would not harmonize with the Court's reasoning in automobile search cases.

The Carney Court makes clear that under the automobile exception, probable cause alone is sufficient to justify a warrantless search. As the Court stated, "the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches [of vehicles] without prior recourse to the authority of a magistrate so long as the...