(concurring in the result):
I write separately because the exigent circumstances requirement of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), has been overtaken by more recent cases.
The Supreme Court stated in United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977), quoting Cady v. Dombrowski, 413 U.S. 433, 441-42, 93 S.Ct. 2523, 2528-29, 37 L.Ed.2d 706 (1973), that warrantless vehicle searches were permitted even “in cases in which the possibilities of the vehicle’s being removed or evidence in it destroyed were remote, if not nonexistent.” The basis for this language is the lesser expectation of privacy in a vehicle and its mobility. Other cases have taken the same track. In Colorado v. Bannister, 449 U.S. 1, 3 n.2, 101 S.Ct. 42, 43 n. 2, 66 L.Ed.2d 1 (1980), a unanimous Court concluded that where probable cause to search the vehicle developed after a traffic stop, “it would be especially unreasonable to require a detour to a magistrate before the unanticipated evidence could be lawfully seized.” Likewise in Texas v. White, 423 U.S. 67, 70, 96 S.Ct. 304, 306, 46 L.Ed.2d 209 (1975) (Marshall, J., dissenting), the Court held that a vehicle search at a later time was permitted even though, as pointed out by the dissent, “there [was] no indication that an immediate search would have been either impractical or unsafe for the arresting officers.” See also United States v. Schmitt, 33 MJ 24, 25 n.* (CMA 1991) .
Following the lead of the Supreme Court, the lower Federal courts have indicated “that the inherent mobility of automobiles by itself provides the only exigent circumstances needed.” United States v. Reis, 906 F.2d 284, 291 (7th Cir.1990) and cases cited therein. See also United States v. Crabb, 952 F.2d 1245, 1246 (10th Cir.1991) (“Given probable cause to believe that a vehicle contains contraband, does the Constitution require law enforcement agents to obtain a warrant before searching the vehicle? Opinions from the Supreme Court and this circuit suggest not.”). Mil.R.Evid. 315(g)(3);* 3 W. LaFave, Search and Seizure § 7.2 at 6 n.65 (2d ed. Pocket Part 1992) and cases cited therein.
Mil.R.Evid. 315(g), Manual for Courts-Martial, United States, 1984, provides:
Exigencies. A search warrant or search authorization is not required under this rule for search based on probable cause when:
(3) Search of operable vehicle. An operable vehicle is to be searched, except in the circumstances where a search warrant or authorization is required by the Constitution of the United States, this Manual, or these rules; ...
For purposes of this rule, a vehicle is “operable" unless a reasonable person would have known at the time of search that the vehicle was not functional for purposes of transportation.