Opinion
Case No. 20020297-CA.
Filed May 30, 2003. (Not For Official Publication)
Appeal from the Fourth District, Provo Department, The Honorable Claudia Laycock.
Margaret P. Lindsay, Provo, for Appellant.
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.
Before Judges Jackson, Bench, and Orme.
MEMORANDUM DECISION
Defendant argues that the search and seizure of her vehicle violated the "Fourth Amendment to the United States Constitution" because first, "there were no exigent circumstances" and second, "the police cannot create the exigency that becomes the justification for the seizure."
The United States Supreme Court has clearly stated that "under our established precedent, the `automobile exception' has no separate exigency requirement." Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S.Ct. 2013, 2014 (1999) (per curiam). "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more."Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487 (1996) (per curiam); cf. Lavicky v. Burnett, 758 F.2d 468, 475 (10th Cir. 1985) (concluding that the automobile exception failed to apply in part because "[t]he pickup . . . was immobile, [as] its engine was partially dismantled").
Defendant "concedes that the officers had probable cause of criminal activity"; therefore, we need only determine whether the car was "readily mobile." Labron, 116 S.Ct. at 2487. The trial court found that "the car [was] at risk of being moved" and that there was "a risk that there'll be destruction of the evidence." That finding is supported by the evidence. As the officers approached the home of Defendant's parents the officers could see contraband within Defendant's vehicle, which had been parked in the driveway. Defendant told the officers that her boyfriend had access to the car and used it occasionally, including earlier that day. When the officers asked Defendant for more information about her boyfriend she refused to give them his last name or any contact information. Contrary to Defendant's assertions, the officers did not "create the exigency" nor the possibility that the car would be moved. This possibility existed before the officers questioned Defendant, and her refusal to provide information about her boyfriend only increased the level of concern about the possibility that the car would be moved.
Defendant's reliance on State v. Kelly, 963 P.2d 1211 (Idaho Ct.App. 1998), and State v. Beavers, 859 P.2d 9 (Utah Ct.App. 1993), is misplaced. Both of those cases involved warrantless searches of dwellings and did not address the automobile exception. Case law has emphasized the differences between automobiles and dwellings in regard to the expectations of privacy and the requirements for a valid warrantless search. See, e.g., California v. Carney, 471 U.S. 386, 391, 105 S.Ct. 2066, 2069 (1985) ("`Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office.'" (citation omitted)); Beavers, 859 P.2d at 13 (stating that "the seizure occurred within the constitutionally protected confines of a private residence, where citizens enjoy a heightened expectation of privacy").
Affirmed.
WE CONCUR: Norman H. Jackson, Presiding Judge, and Gregory K. Orme, Judge.