Of Exigent Circumstances and Radio Dead Zones

When it comes to judicial oversight of law enforcement intrusion into our privacy, I’m pretty suspicious of claims of exigent circumstances.

For example, I don’t believe the claim that terrorism investigators need to conduct warrantless surveillance because there’s not enough time to get a warrant. Some places have judges stationed at sobriety checkpoints to speed the warrant process. Surely the feds can be as resourceful in terrorism investigations.

So, when I started to read Ken Lammers’s explanation of the Carroll Doctrine, explaining why cops need a warrant to search vehicles but not homes, I approached it with suspicion. The basic rule Ken quotes is this:

“it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which a warrant must be sought.”

Ken anticipates my first reaction:

I can already hear the howls of protest. “In the modern world we have radios and cell phones. Carroll is outdated law!” Well, maybe so in your locality, but let’s consider those of us in far Southwest Virginia. My county borders Kentucky. There are mountains everywhere, cell towers are extremely spotty, and there are plenty of places back in the way back, with three or four mountains between the deputy and civilization, where anything short of satellite communication just ain’t going to work.

Ken then gives an extended example:

Consider a case wherein the local sheriff’s department has all sorts of knowledge of John Jones trading oxycodone, methadone, suboxone and lortabs back and forth across the Kentucky-Virginia border in his SUV. Jones crosses the border at random times and places. At 3 a.m., Deputy Smith is out in the way-back returning from a call from a house just on the other side of a national park. He sees Jones driving an SUV down a road which comes directly through the park from Kentucky (with no civilization anywhere near either side of the border). Pulling over the vehicle, the deputy sees nothing in plain sight and Jones is savvy enough that he’s never going to agree to a consent search. There’s no cell service anywhere near and the mountain next to the road isn’t letting any radio waves get through.

Wow, Ken’s good. That hypothetical has it all.

Still, let me try to poke a few holes in it:

(1) Ken seems to be arguing that Jones’s Fourth Amendment protections are void due to the technical shortcomings of the Sheriff’s Department. In other words, it’s cheaper this way. That’s not exactly a compelling argument for stepping on someone’s rights.

(2) I was in the Kentucky hills near Ken’s location just last week, and I got 3G or at least Edge cellular service almost everywhere. That doesn’t make Ken wrong, but I’m wondering how often this really happens.

(3) 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.

(4) 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.

In some ways, this reminds me of the argument that police have to do dynamic entries into people’s houses during drug raids because otherwise the occupants can destroy the evidence. The invention of flush toilets has created a conflict between our rights and the war on drugs, and lot of law enforcement folks think the solution is to give up on our rights.

(5) 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.