798 MARSHALL, J., dissenting case, I would affirm the judgment of the Court of Appeals. I also agree with much of JUSTICE MARSHALL'S dissent in this case. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting. The majority today not only repeals all realistic limits on warrantless automobile searches, it repeals the Fourth Amendment warrant requirement itself. By equating a police officer's estimation of probable cause with a magistrate's, the Court utterly disregards the value of a neutral and detached magistrate. For as we recently, and unanimously, reaffirmed: "The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and capable of determining detached, and he must be A police officer on the beat hardly satisfies these standards. In adopting today's new rule, the majority opinion shows contempt for these Fourth Amendment values, ignores this Court's precedents, is internally inconsistent, and produces anomalous and unjust consequences. I therefore dissent. I According to the majority, whenever police have probable cause to believe that contraband may be found within an MARSHALL, J., dissenting 456 U. S. automobile that they have stopped on the highway,' they may search not only the automobile but also any container found inside it, without obtaining a warrant. The scope of the search, we are told, is as broad as a magistrate could authorize in a warrant to search the automobile. The majority makes little attempt to justify this rule in terms of recognized Fourth Amendment values. The Court simply ignores the critical function that a magistrate serves. And although the Court purports to rely on the mobility of an automobile and the impracticability of obtaining a warrant, it never explains why these concerns permit the warrantless search of a container, which can easily be seized and immobilized while police are obtaining a warrant. The new rule adopted by the Court today is completely incompatible with established Fourth Amendment principles, and takes a first step toward an unprecedented "probable cause" exception to the warrant requirement. In my view, under accepted standards, the warrantless search of the containers in this case clearly violates the Fourth Amendment. A "[I]t is a cardinal principle that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and welldelineated exceptions."" Mincey v. Arizona, 437 U. S. 385, 390 (1978), quoting Katz v. United States, 389 U. S. 347, 357 (1967). The warrant requirement is crucial to protecting Fourth Amendment rights because of the importance of having the probable-cause determination made in the first instance by a neutral and detached magistrate. Time and 'The Court confines its holding today to automobiles stopped on the highway which police have probable cause to believe contain contraband. I do not understand the Court to address the applicability of the automobile exception rule announced today to parked cars. Cf. Coolidge v. New Hampshire, 403 U. S. 443 (1971). 798 MARSHALL, J., dissenting again, we have emphasized that the warrant requirement provides a number of protections that a post hoc judicial evaluation of a policeman's probable cause does not. The requirement of prior review by a detached and neutral magistrate limits the concentration of power held by executive officers over the individual, and prevents some overbroad or unjustified searches from occurring at all. See United States v. United States District Court, 407 U. S. 297, 317 (1972); Abel v. United States, 362 U. S. 217, 252 (1960) (BRENNAN, J., joined by Warren, C. J., and Black and Douglas, JJ., dissenting). Prior review may also "prevent hindsight from coloring the evaluation of the reasonableness of a search or seizure." United States v. Martinez-Fuerte, 428 U. S. 543, 565 (1976); see also Beck v. Ohio, 379 U. S. 89, 96 (1964). Furthermore, even if a magistrate would have authorized the search that the police conducted, the interposition of a magistrate's neutral judgment reassures the public that the orderly process of law has been respected: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, supra, at 13-14. See also Marshall v. Barlow's, Inc., 436 U. S. 307, 323 (1978); United States v. United States District Court, supra, at 321. The safeguards embodied in the warrant requirement apply as forcefully to automobile searches as to any others. Our cases do recognize a narrow exception to the warrant requirement for certain automobile searches. Throughout our decisions, two major considerations have been advanced to justify the automobile exception to the warrant require MARSHALL, J., dissenting 456 U. S. ment. We have upheld only those searches that are actually justified by those considerations. First, these searches have been justified on the basis of the exigency of the mobility of the automobile. See, e. g., Chambers v. Maroney, 399 U. S. 42 (1970); Carroll v. United States, 267 U. S. 132 (1925). This "mobility” rationale is something of a misnomer, cf. Cady v. Dombrowski, 413 U. S. 433, 442-443 (1973), since the police ordinarily can remove the car's occupants and secure the vehicle on the spot. However, the inherent mobility of the vehicle often creates situations in which the police's only alternative to an immediate search may be to release the automobile from their possession. This alternative creates an unacceptably high risk of losing the contents of the vehicle, and is a principal basis for the Court's automobile exception to the warrant requirement. See Chambers, supra, at 51, n. 9. 2 In many cases, however, the police will, prior to searching the car, have cause to arrest the occupants and bring them to the station for booking. In this situation, the police can ordinarily seize the automobile and bring it to the station. Because the vehicle is now in the exclusive control of the authorities, any subsequent search cannot be justified by the mobility of the car. Rather, an immediate warrantless search of the vehicle is permitted because of the second major justification for the automobile exception: the diminished expectation of privacy in an automobile. Because an automobile presents much of its contents in open view to police officers who legitimately stop it on a public way, is used for travel, and is subject to significant gov "The fact that the police are able initially to remove the occupants from the car does not remove the justification for an immediate search. If police could not conduct an immediate search of a stopped automobile, they would often be left with the difficult task of deciding what to do with the occupants while a warrant is obtained. In the case of a parked automobile, by contrast, if the automobile is unoccupied, this problem is not presented. See, e. g., Coolidge v. New Hampshire, supra. 798 MARSHALL, J., dissenting ernment regulation, this Court has determined that the intrusion of a warrantless search of an automobile is constitutionally less significant than a warrantless search of more private areas. See Arkansas v. Sanders, 442 U. S. 753, 761 (1979) (collecting cases). This justification has been invoked for warrantless automobile searches in circumstances where the exigency of mobility was clearly not present. See, e. g., South Dakota v. Opperman, 428 U. S. 364, 367-368 (1976); Cady v. Dombrowski, supra, at 441-442. By focusing on the defendant's reasonable expectation of privacy, this Court has refused to require a warrant in situations where the process of obtaining such a warrant would be more intrusive than the actual search itself. Cf. Katz v. United States, supra. A defendant may consider the seizure of the car a greater intrusion than an immediate search. See Chambers, supra, at 51-52. Therefore, even where police can bring both the defendant and the automobile to the station safely and can house the car while they seek a warrant, the police are permitted to decide whether instead to conduct an immediate search of the car. In effect, the warrantless search is permissible because a warrant requirement would not provide significant protection of the defendant's Fourth Amendment interests. B The majority's rule is flatly inconsistent with these established Fourth Amendment principles concerning the scope of the automobile exception and the importance of the warrant requirement. Historically, the automobile exception has been limited to those situations where its application is compelled by the justifications described above. Today, the majority makes no attempt to base its decision on these justifications. This failure is not surprising, since the traditional rationales for the automobile exception plainly do not support extending it to the search of a container found inside a vehicle. |