State v. Savva, 90-035

• Decision Date: 25 October 1991
• Docket Number: No. 90-035,90-035
• Parties: STATE of Vermont v. Phillip SAVVA.
• Court: Vermont Supreme Court

Page 774

616 A.2d 774

159 Vt. 75

STATE of Vermont v. Phillip SAVVA.

No. 90-035.

Supreme Court of Vermont.

Oct. 25, 1991.

On Motion for Reargument

Aug. 14, 1992.

Dan M. Davis, Windham County State's Atty., and Karen R. Carroll, Deputy State's Atty. (on the brief), Brattleboro, for plaintiff-appellee.

E.M. Allen, Defender Gen., David Williams, Appellate Atty., and Robert Melvin, Law Clerk (on the brief), Montpelier, for defendant-appellant.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

MORSE, Justice.

The sole issue on appeal is the legality under Article 11 of the Vermont Constitution of a warrantless search for and seizure of marijuana in an automobile stopped for speeding. Because the contraband found in the car's hatchback area should have been suppressed, we reverse defendant's conviction for possession of more than two ounces of marijuana.

In the late afternoon of November 11, 1985, a Vermont State Police trooper, Lionel Shapiro, spotted a speeding Subaru, pursued it, determined it was travelling at speeds of 80 to 85 miles per hour, and stopped it. Defendant was driving and his five-year-old daughter was seated next to him.

As Shapiro approached the Subaru's rolled-down window, he smelled what he believed was marijuana. Shapiro said nothing about that observation and processed defendant for speeding, writing out the ticket in his cruiser as defendant remained in his car. When Shapiro returned to hand defendant the ticket, he again smelled the odor and noticed defendant's eyes appeared red and glassy. The trooper asked defendant if he had been smoking marijuana. Defendant said he had not and declined the trooper's request to "look in" the car. Shapiro then ordered defendant out of his car and began searching it for the source of the odor, while defendant stood in front of the Subaru.

Shapiro first came upon a paper bag containing a small amount of marijuana and rolling papers in a small, open compartment in the driver's door. Defendant was then patted down and placed under arrest. The trooper called for assistance. While still standing in front of his car, defendant indicated he was cold and wanted his jacket, which was in the backseat. As defendant "lunged" toward the door, Shapiro stopped him and removed the jacket himself, checked the pockets and found a large amount of cash and newspaper clippings. Defendant was patted down again and given the jacket. The cash amounted to about $10,000; the clippings described Coast Guard drug surveillance and the cocaine situation in Bolivia.

Another trooper, David Tetrault, arrived at the scene. He put defendant and defendant's daughter in the backseat of his cruiser. Meanwhile, Shapiro continued his search of the Subaru. Two marijuana roaches were found in the frontseat ashtray and one in the backseat ashtray. In an unlocked briefcase on the backseat, Shapiro found more newspaper clippings about drug trafficking, "smuggler belts," a calculator, and assorted papers. He also found in the backseat area duffel bags with clothing in them and a locked suitcase. As he searched the interior, Shapiro continued to smell a strong odor of marijuana. At this point, further back-up assistance was requested.

Shapiro next exposed the Subaru's hatchback area by unlatching an unlocked vinyl cover from inside the vehicle's backseat. In the hatchback, Shapiro found a closed brown paper bag. He opened it and discovered Two more officers then arrived at the scene, and defendant was told he was under arrest for felony possession of marijuana. The contraband and other evidence was collected and put in a cruiser. One of the officers stayed with defendant's car, which was towed to police barracks. Defendant and his daughter were taken to the barracks where he was processed. There, the locked suitcase was cut open and $2,000 in cash found. At no time did authorities seek a search warrant.

seven plastic zip-lock bags each filled with about one-quarter pound of marijuana, a brown plastic bag containing marijuana, and a white plastic bag containing a clear plastic bag filled with hash tar. A slide viewer and photographic slides of tropical areas were also found.

I.

The search of defendant's automobile and everything contained there would undoubtedly be permitted under the so-called "automobile exception" to the fourth amendment. Originally created to address the impracticality of getting a warrant to search a mobile vehicle on the road, see Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), the automobile exception over its sixty-six year history has been expanded beyond the initial rationale of exigent circumstances. The exception is not limited to the automobile itself, but includes the contents of all containers found anywhere in the vehicle that might contain the object of the search. Probable cause is required, but a warrant is not. California v. Acevedo, 500 U.S. 565, ----, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991) (Carroll allows warrantless searches of containers within vehicles even if police have probable cause to search only the container but not the vehicle); United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982) ("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."). The Ross/ Acevedo rule places motor vehicles and their contents outside the warrant protection of the fourth amendment even if exigent circumstances do not exist. Thus, once Officer Shapiro developed probable cause that defendant's car contained marijuana--and in deciding this case we assume he did--he was entitled to search the hatchback and open all packages that might contain the drug.

The automobile exception was first articulated in Carroll, 267 U.S. at 153, 45 S.Ct. at 285, a prohibition-era case, where the Court used it to justify a warrantless search for bootleg liquor in the upholstered seats of an automobile. Distinguishing searches of motor vehicles from those of stationary structures, the Court held that securing a warrant was not practical "because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." Id.

Exigent circumstances are usually recognized as a reason to except a search from the warrant requirement only in cases where delay in procuring a warrant would put police officers or others in danger or would result in the removal or destruction of evidence. See, e.g., Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590, 61 L.Ed.2d 235 (1979). In these "carefully delineated" exceptions, the state bears the burden of showing that circumstances require that they forego the warrant process. Id. at 760, 99 S.Ct. at 2591.

But in the automobile search line of cases, whether mobility in fact creates an exigent circumstance has become irrelevant; mobility is an exigent circumstance as a matter of law. See Ross, 456 U.S. at 806-07, 102 S.Ct. at 2163 ("the nature of an automobile in transit" is the basis of a per se rule that "a warrantless search of an automobile is not unreasonable"); California v. Carney, 471 U.S. 386, 392-93, 105 S.Ct. 2066, 2070, 85 L.Ed.2d 406 (1985) (warrantless search of motor home reasonable because it is "readily mobile"); Chambers v. Maroney, 399 U.S. 42, 50-52, 90 S.Ct. 1975, 1980-82, 26 L.Ed.2d 419 (1970) (taking car to police station and searching it without a warrant was reasonable because "the opportunity to search is fleeting since a car is readily movable" even though Carroll was decided before the Court fully developed reasonable-expectation-of-privacy analysis, the cornerstone of fourth amendment jurisprudence. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) (fourth amendment protects privacy where person has expressed an actual subjective expectation of privacy and that expectation is one that society is prepared to recognize as "reasonable"). In its post-Katz automobile cases, the Court has nevertheless downplayed the privacy analysis of Katz. Instead of a case-by-case analysis of the individual's privacy interest in the object to be searched, the Court has posited a diminished expectation of privacy in motor vehicles to help explain dispensing with the need for a warrant. For example, in Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974), a case in which paint scrapings were taken from a car's exterior and its tire treads were compared to a cast made at a crime scene, the Court went beyond the plain view analysis and stated:

the car in this case was under secure police control).

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.

The diminished expectation of privacy extends even to those parts of the vehicle not in plain view because motor vehicles are subjected to "pervasive and continuing governmental regulation and controls," such as licensing and inspection requirements. South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976); see also Carney, 471 U.S. at 391-92, 105 S.Ct. at 2069-70; Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S.Ct. 2523, 2528-29, 37 L.Ed.2d 706 (1973).

Even containers found inside a vehicle receive no warrant protection under federal constitutional law. In numerous cases prior to Ross and Acevedo, the Court had differentiated the expectation of privacy in containers from that of vehicles. In United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977), Chief Justice Burger, writing for seven members of the Court, stated:

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