Washington Law Review


Suspects, Cars & Police Dogs: A Complicated Relationship

December 01, 2020 | 95 Wash. L. Rev. 1725


Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the probable cause associated with the automobile exception to warrantlessly search vehicle occupants or, alternatively, warrantlessly arrest vehicle occupants. Specifically, this Article identifies those courts that interpret the automobile exception to additionally authorize two overarching categories of warrantless investigative activity: (1) searching vehicle occupants, and (2) arresting vehicle occupants. Each category, in the order presented by this Article, progressively unmoors the automobile exception from its constitutional foundation by broadly expanding the probable cause standard necessary to search a vehicle to permit further warrantless investigation.

In response, this Article asserts that the probable cause associated with the automobile exception is limited to searching cars and does not justify searching people—much less seizing people. Those investigative actions, the Article concludes, each require an independent exception to the warrant requirement supported by separate probable cause.

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