                                                                           FILED
No. 14-0174, State of West Virginia v. James Earl Noel, Jr.            November 6, 2015
                                                                          released at 3:00 p.m.
                                                                          RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
Justice Ketchum concurring:                                                 OF WEST VIRGINIA




             I fully agree with the majority’s resolution of this case. I write separately

to point out that there is an “automobile exception” to the warrant requirement that was

not raised in this case. The automobile exception may be used by a police officer under

our new holding in Syllabus Point 2. In Syllabus Point 2, the majority holds:

                     Pursuant to Arizona v. Gant, 556 U.S. 332, 129 S. Ct.
             1710, 174 L. Ed.2d 485 (2009), police may conduct a
             warrantless search of a vehicle incident to a recent occupant’s
             arrest only if (1) the arrestee is unsecured and within reaching
             distance of the vehicle’s passenger compartment at the time
             of the search or (2) it is reasonable to believe that the vehicle
             contains evidence of the offense of arrest. If these
             justifications are absent, a warrantless search of an arrestee’s
             vehicle will be unreasonable unless police obtain a warrant or
             show that another exception to the warrant requirement
             applies.
(Emphasis added).

             The United States Supreme Court created the automobile exception to the

warrant requirement in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543

(1925). In Carroll, the Court held that because of the mobility of an automobile, and the

diminished expectation of privacy in an automobile, warrantless searches can be justified

under certain conditions. For instance, police officers do not need a warrant to search an

automobile if they have probable cause to believe it contains evidence of criminal

activity. United States v. Ross, 456 U.S. 798, 809, 102 S.Ct. 2157, 72 L.Ed.2d 572

(1982). Probable cause exists when “the known facts and circumstances are sufficient to


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warrant a man of reasonable prudence in the belief that contraband or evidence of a crime

will be found.” Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d

911 (1996). Probable cause deals in probabilities that “are not technical; they are the

factual and practical considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct.

1302, 93 L.Ed. 1879 (1949). Under the automobile exception, police officers may search

for evidence of any crime, not just of the offense that provided the basis for the arrest.

United States v. Baker, 719 F.3d 313, 319 (4th Cir.2013).

              While police officers do not need a warrant to search an automobile if they

have probable cause to believe it contains evidence of criminal activity, “[t]he word

‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and

disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035

(1971). A warrantless search of an automobile must be reasonable in light of the

diminished expectation of privacy that a person may have in his automobile as weighed

against any exigent circumstances that may exist in a particular case.




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