Ford and placed them on the recently purchased vehicle. As a result, Doyle received a summons and was arraigned on a charge of fictitious tags. Doyle then apparently elected to remove the case to the Court of Common Pleas for a hearing on probable cause. At the time appointed for the hearing, however, Officer Conrad failed to appear because he had not been notified of the proceeding by the prosecuting attorney. The Court of Common Pleas refused to grant the state a continuance and the matter was nolle prossed.
In his amended complaint, Doyle argues that Officer Conrad lacked probable cause to enter and search his vehicle and to have it towed from Moores Lane. He seeks compensatory damages in the amount of $ 1,669.50, including reimbursement of his towing charges, storage fees and those attorney's fees apparently incurred in the proceeding in the Court of Common Pleas, as well as costs incident to the prosecution of this § 1983 action. Doyle further seeks an award of punitive damages and requests the Court to enjoin Officer Conrad "from any further harassment involving this case and any further damages which might be caused by employees of the police department at this time." (D.I. 17.)
In response, Officer Conrad contends that he had probable cause to believe that the International Truck was stolen and under well established Supreme Court precedent, he was authorized both to search the van and to take the vehicle into custody. Moreover, under 11 Del.C. § 2322, any vehicle "used in, or in connection with the commission of any felony" may be seized by a police officer having knowledge of such use. This statutory provision, defendant argues, provides additional independent grounds for the propriety of his actions.
Generally, the probable cause requirement embodied in the Fourth Amendment is satisfied if under all the facts and circumstances, a reasonably prudent person would believe that evidence of a crime could be found at the location to be searched. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879 (1949). Although more than bare suspicion is required, only a probability and not a prima facie showing of criminal conduct need be demonstrated. Id. at 175, 69 S. Ct. at 1310; United States v. Martinez, 588 F.2d 1227, 1234 (C.A.9, 1978); United States v. Scott, 555 F.2d 522, 527 (C.A.5), cert. denied sub nom. Ogletree v. United States, 434 U.S. 985, 98 S. Ct. 610, 54 L. Ed. 2d 478 (1977); United States v. Trott, 421 F. Supp. 550, 553 (D.Del.1976). By striking this balance, the rule of probable cause represents a compromise between two competing interests-the right of citizens to be free from rash and unreasonable invasions of privacy and the need for enforcement agents to possess some unhampered discretion in investigating criminal activity for the protection of the community. Brinegar v. United States, supra, 338 U.S. at 176, 69 S. Ct. at 1311.
The Court agrees that, within this framework, probable cause existed for the search and subsequent seizure of Doyle's van. The van was parked in an area which had been the site of frequent burglaries. The license plate attached to the vehicle was not the proper plate issued by the Motor Vehicle Department and the correct plates were discovered on the floor of the van. The former owner's wife, Mrs. Hess, advised police that to her knowledge Mr. Hess still owned the van. Efforts to locate Doyle, moreover, were unsuccessful because his telephone had been disconnected. Under these circumstances, there was probable cause to believe that the van might be stolen and that a search of the vehicle would produce evidence pertaining to its theft. Accord United States v. Matthews, 615 F.2d 1279, 1287 (C.A.10, 1980).
Although a finding of probable cause is a necessary prerequisite to any search, that assessment is only half the battle confronting the defendant in this case. The Fourth Amendment protects the privacy and security of individuals by barring unreasonable searches and seizures. This requirement in turn has been interpreted to encompass two elements:(1) a showing of probable cause; and (2) a search warrant issued on such a showing by a detached and neutral magistrate. Arkansas v. Sanders, 442 U.S. 753, 758, 99 S. Ct. 2586, 2590, 61 L. Ed. 2d 235 (1979). By vesting the probable cause determination in an impartial magistrate instead of in the "officer engaged in the often competitive enterprise of ferreting out crime," Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 369, 92 L. Ed. 436 (1948), the amendment minimizes the risk of unreasonable assertions of authority. Arkansas v. Sanders, supra, 442 U.S. at 759, 99 S. Ct. at 2591. Accordingly, the Supreme Court has consistently held that searches conducted without prior approval of a magistrate, no matter how facially reasonable they appear, are "per se unreasonable" and violate the Fourth Amendment. See e.g. Robbins v. California, 453 U.S. 420, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981); Colorado v. Bannister, 449 U.S. 1, 2-3, 101 S. Ct. 42, 43, 66 L. Ed. 2d 1 (1980); Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 2031-32, 29 L. Ed. 2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967).
Like any judicial interpretation, however, exceptions to the warrant requirement have been created where "it was concluded that the public interest required some flexibility in the general rule." Arkansas v. Sanders, supra, 442 U.S. at 759, 99 S. Ct. at 2591. These exceptions have been "jealously and carefully drawn" and there must be a showing by those claiming the exemption that exigent circumstances made the procurement of a warrant impracticable. Coolidge v. New Hampshire, supra, 403 U.S. at 455, 91 S. Ct. at 2032. One such exception, claimed by Officer Conrad in this case, is the so-called "automobile exception," which has been the focus of seemingly endless judicial attention with often incompatible or contradictory results.
In a long line of decisions originating with Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925), the Supreme Court has held that a search warrant is unnecessary "where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted and the car's contents may never be found again if a warrant must be obtained." Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 1981, 26 L. Ed. 2d 419 (1970). A recognition of several distinguishing factors contributed to the evolution of the "automobile exception" in these cases. First, the circumstances that furnish probable cause to search a particular vehicle most often are unforeseeable and arise suddenly and unexpectedly. Second, the opportunity to search is often a brief one since the vehicle can easily be moved out of the locality and the alerted occupants may remove relevant evidence from its interior. Finally, where an automobile is stopped on a public road, no practical alternative exists to a warrantless search. For purposes of the Fourth Amendment, there is little constitutional significance between an immediate warrantless search of the vehicle and a seizure of the vehicle until a warrant can be obtained; the immobilization of the automobile for an indefinite period, while approval of a magistrate is sought, is no less an intrusion deserving of constitutional protection than an on-the-spot search. Chambers v. Maroney, supra, 399 U.S. at 50-51, 90 S. Ct. at 1980-81.
Although the need to act quickly without the encumbrance of obtaining a warrant appears compelling where an automobile is stopped on the highway, the same cannot be said for a search involving an unoccupied parked vehicle, and this situation has produced uneven results in the Supreme Court. In Coolidge v. New Hampshire, supra, a plurality of the Court invalidated the warrantless search and seizure of an unoccupied car parked on private property and strongly indicated that the exigent circumstances requirement could be met only in a Carroll type situation, where the vehicle is likely to be moved or the suspected evidence otherwise lost. 403 U.S. at 460-62, 45 S. Ct. at 2034-35. Three years later, however, in another plurality opinion, the Court concluded that the impoundment of an unoccupied car from a public parking lot was constitutionally permissible, even though the owner was in custody and there was no reasonable likelihood that the automobile could be moved out of the grasp of the police. Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974). In distinguishing this case from Coolidge, the plurality chose to emphasize the fact that the Coolidge seizure required an entry onto private property, whereas in Cardwell the automobile was seized from a public place where access was not meaningfully restricted. Id. 417 U.S. at 593, 94 S. Ct. at 2471. Moreover, the Court refused to attach any legal significance to the fact that the car was seized from a public parking lot rather than being stopped on a highway, and noted, without extended comment, that the same "considerations of exigency, immobilization on the spot and posting a guard" while the warrant was secured made the delay impractical in both situations. Id. at 594-95, 94 S. Ct. at 2471-72. Finally, the Court introduced a new element into the equation governing the propriety of warrantless automobile searches and seizures-the notion that there is a diminished expectation of privacy in an automobile because its function is transportation, it does not serve as a residence or a repository of one's personal effects, and it travels on public thoroughfares where its occupants cannot avoid public scrutiny. Id. at 590, 94 S. Ct. at 2469. Apparently, the "lesser expectation of privacy" attached to automobiles implicates a corresponding diminution in the showing of exigent circumstances necessary to validate a warrantless vehicle search or seizure.
Although the Supreme Court has not at this writing eliminated the requirement of a warrant altogether in automobile searches and still pays homage to the necessity of demonstrating exigent circumstances, see South Dakota v. Opperman, 428 U.S. 364, 382, 96 S. Ct. 3092, 3103, 49 L. Ed. 2d 1000 (1976) (Powell, J., concurring); United States v. Matthews, 615 F.2d 1279, 1286 (C.A.10, 1980); United States v. Robinson, 174 U.S. App. D.C. 351, 533 F.2d 578, 581 (1976), Coolidge apparently represented the high water mark for the warrant requirement. The mobility of automobiles in particular situations remains an important factor in justifying a warrantless search, but, in addition to Cardwell, the Court has increasingly sustained warrantless searches of vehicles in instances where the possibility of removal of the vehicle or destruction of evidence contained within it was remote, if not nonexistent. United States v. Chadwick, 433 U.S. 1, 12, 97 S. Ct. 2476, 2484, 53 L. Ed. 2d 538 (1977); Cady v. Dombrowski, 413 U.S. 433, 441-43, 93 S. Ct. 2523, 2528-29, 37 L. Ed. 2d 706 (1973); see South Dakota v. Opperman, supra; Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975). Although none of these decisions addressed the situation presented by the Doyle case, involving an on-the-scene search of an unoccupied, parked vehicle, the increasing tolerance with which warrantless automobile searches have been viewed has not gone unnoticed by the Courts of Appeals. At least five circuits, including the United States Court of Appeals for the Third Circuit, have held searches and seizures of unoccupied, parked vehicles valid in circumstances which posed little or no risk that the car or its contents would be removed while a warrant was obtained. See United States v. Matthews, 615 F.2d 1279 (C.A.10, 1980); United States v. Newbourn, 600 F.2d 452 (C.A.4, 1979); United States v. Milhollan, 599 F.2d 518 (C.A.3), cert. denied, 444 U.S. 909, 100 S. Ct. 221, 62 L. Ed. 2d 144 (1979); United States v. Robinson, 174 U.S. App. D.C. 351, 533 F.2d 578 (C.A.D.C.1976); Haefeli v. Chernoff, 526 F.2d 1314 (C.A.1, 1975).
In United States v. Milhollan, supra, the defendant attempted to cash fraudulent money orders in a bank when a suspicious teller alerted police. The defendant ran from the bank in the general direction of a public parking lot a few blocks away, but was apprehended after a brief chase. A search of the defendant at the police station revealed a set of car keys with a dealer's tag marked "Gold Capri." Police then returned to the public parking lot, located the Capri and drove it to the police station, where a search was conducted. The district court denied the defendant's motion to suppress all evidence obtained from the warrantless search and seizure of the car, and, over the vigorous dissent of Judge Gibbons, the Third Circuit affirmed. 599 F.2d at 525.
The court held that the police may conduct a warrantless search of an automobile whenever two factors are present: (1) there is probable cause to believe that the automobile contains articles subject to seizure, including evidence of a crime; and (2) the justification for the search arises suddenly and unexpectedly. Id. at 526. After concluding that probable cause existed to search the vehicle, the court observed:
Nor can (defendant) argue that this probable cause did not arise suddenly and unexpectedly.... (E)vents surrounding the arrest itself triggered the suspicion that the automobile contained evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), where the police knew for some time about the role of the automobile in the crime is distinguishable.... Coolidge does not control "where the occasion to search the vehicle arises suddenly." ... When such probable cause suddenly crops up, the police need not freeze the situation while they secure a search warrant for the automobile. They may search the car immediately or seize it and search it later.... Applying these standards we conclude that the search of (defendant's) automobile was legitimate.
Id. Thus, even though the defendant was safely in police custody at the time the automobile was located and searched, the police had possession of the car keys, and there was no allegation of any confederates which might have access to the car, id. at 533 (Gibbons, J., dissenting), the Third Circuit found the circumstances giving rise to the search sufficiently "exigent" to dispense with the requirement of a warrant.
Based on a review of the foregoing authorities, it is difficult for this Court to envision under what circumstances, if any, appellate courts would require a warrant for the search of an unoccupied automobile parked on a public thoroughfare. As the courts have given a broader reading to the exigent circumstances requirement, the Court suspects that the word "automobile" may well have become the "talisman in whose presence the Fourth Amendment fades away and disappears." Coolidge v. New Hampshire, supra, 402 U.S. at 461-62, 91 S. Ct. at 2035-36. Nonetheless, if the police in Milhollan were not required to secure a warrant, a fortiori Officer Conrad in this case was not required to "freeze the situation" while approval of a magistrate was sought to search Doyle's vehicle. Here, not only did the probable cause arise suddenly and unexpectedly, but the van was positioned in a public place where access was not meaningfully restricted and Officer Conrad was aware that the suspected thief was still at large and might return at any moment to claim his newly acquired vehicle. In these circumstances the limited and discrete search of the van could permissibly be made without the requirement of a warrant. Moreover, because probable cause and exigent circumstances existed for the on-the-spot search of the vehicle, Officer Conrad was also authorized to take the vehicle into custody without offending the Fourth Amendment.
For the reasons stated in this opinion, judgment will be entered in favor of the defendants in this case and against the plaintiff.