FACT ELEMENTS

We have so far discussed the special burdens prosecutors face with respect to act elements—they
must prove beyond a reasonable doubt that the defendant engaged in the prohibited conduct and
that his conduct was voluntary (which is to say, not involuntary). In this lesson we will discuss the
special burdens prosecutors face when charging crimes that have fact elements or, in Model Penal
Code terms, attendant circumstances.
First, prosecutors must prove beyond a reasonable doubt that the fact or attendant circumstance
existed. For example, the elements of common law burglary are “Breaking and entering into a
dwelling place at night for the purpose of committing a felony therein.” In order to fulfill her
burden of proof in a case alleging common law burglary, a prosecutor must prove both that the
premises broken-in-to was a “dwelling place,” not a commercial warehouse, and that it was “night”
when the breaking and entering was done, not the middle of the day.
Second, prosecutors must prove that the facts or attendant circumstances coincided with the
criminal act. The importance of this requirement is evident if we consider again a possible burglary
charge. A prosecutor charging common law burglary could not fulfill her burden of proof if the
place broken into had once been a “dwelling,” but was being used as a storage facility at the time of
the breaking and entering. Likewise, she could not fulfill her burden if the breaking and entering
took place at dawn, even though it had been night only moments before.
As a final example, consider statutory rape. Interestingly, statutory rape is a common law crime. It
entails a sexual act between an adult and a minor child who are not married to each other. So, in
order to prove a statutory rape charge, a prosecutor must prove beyond a reasonable doubt that, at
the time of the sexual act, the perpetrator was, in fact, an adult and the victim was, in fact, a minor
child.
In many cases, proving fact elements is a fairly straightforward proposition. It can get somewhat
complicated, however, when one of the fact elements is a predicate offense. In some cases,
legislatures want to impose punishments of increasing severity on recidivist defendants or serial
offenders. One way to accomplish this goal is to include as one of the elements of a crime a prior
conviction for another offense. For example, a defendant can be charged with stalking in the third
degree under New York Penal Law § 120.50(4) if he “Commits the crime of stalking in the fourth
degree and has previously been convicted within the preceding ten years of stalking in the fourth
degree.” A prosecutor charging stalking in the third degree on this theory would need to prove not
only conduct constituting stalking in the fourth degree, but also a prior conviction for stalking in the
fourth degree within the last ten years. That prior conviction is a fact element for stalking in the
third degree. Moving up the ladder of severity, stalking in the second degree under New York Penal
Law §120.55(3) requires conduct sufficient to prove an act of stalking in the fourth degree with a
predicate conviction for stalking in the third degree.
Proving predicate offenses seldom raises problems if both the past and present offenses were
perpetrated in the same jurisdiction. There can be problems, however, when the predicate offense is
from another jurisdiction. For example, in Lambert v. California, 355 U.S. 225 (1957), the Supreme
Court was asked to consider the constitutionality of a Los Angeles Municipal Code that required
“convicted persons” to register with local authorities. That law defined “convicted persons” as

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 Any person who, subsequent to January 1, 1921, has been or hereafter is convicted of
an offense punishable as a felony in the State of California, or who has been or who is
hereafter convicted of any offense in any place other than the State of California, which
offense, if committed in the State of California, would have been punishable as a
felony.
Imagine that a defendant has been arrested and charged with failing to register on the grounds that
he was previously convicted of misdemeanor assault in Colorado. In order to fulfill her burden at
trial, a prosecutor would need to prove that the Colorado conviction was equivalent to felony assault
in California. But how? Would it be enough to simply compare the elements of misdemeanor
assault in Colorado to the elements of felony assault in California? Or would the prosecutor need to
prove (or could she choose to prove) that the conduct underlying the Colorado conviction would
constitute felony assault in California? What if the defendant had been charged with both
misdemeanor assault and felony assault in Colorado, but the jury voted to acquit on the felony
charge, could the California prosecutor relitigate the Colorado charge, or would that violate the Fifth
Amendment prohibition on double jeopardy?
As another example, 18 U.S.C. §924(e) provides a sentencing enhancement for defendants who are
found guilty of unlawful possession of a firearm and have three previous convictions for violent
felonies. A “violent felony” is further defined as, inter alia, conviction of a crime under state law that
“has as an element the use, attempted use, or threatened use of physical force against the person of
another; or is burglary, arson, or extortion . . . .” So, charging a defendant under this provision of
the United States Code would require looking at the relevant state law convictions to determine
whether they are, in fact, proper predicates. That may seem like a straightforward proposition until
one considers the broad discretion that state legislatures have to define the elements of criminal
offenses. This means that the elements constituting assault, burglary, arson, and extortion may vary
quite widely from state to state. Where this is the case, how is a federal court to determine whether,
say, a burglary conviction under Tennessee law is sufficient to fulfill the requirement for a “burglary”
conviction under federal law? In this instance the answer is that courts look at the elements of the
state crime to determine whether they reflect the basic or “generic” elements of an offense.
Another circumstance when fact elements may present challenges is when the circumstances of a
case raise questions about the nature of the fact. Consider, again, statutory rape. In order to be
found guilty of statutory rape, a defendant must be an “adult.” If we define “adult” purely in
chronological terms, then a defendant who is twenty-one would be considered an “adult.” But what
if that defendant has profound developmental deficiencies such that he functions at a mental age of
six? Is he an “adult” for purposes of this crime? How might Chief Judge Truepenny answer that
question? Judge Foster?

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Practice Considerations
The first order of business any time you confront a criminal law problem in practice is to identify
the possible criminal charges. For each one of those crimes, you will need to identify the elements
being as atomistic as possible, even if that means listing elements that seem fairly trivial. Next you
will want to categorize each of those elements as an act, fact, or result. You do not need to resolve
any ambiguities at this stage. So, if you think an element could be a fact element or could be an act
element, then just make a note of the ambiguity. It may turn out that the circumstances of the case
do not require you to resolve that ambiguity. On the other hand, you may need to go through a
process of statutory interpretation to determine the best reading of the statute.
The next step is to check your work. Remember that all crimes must have at least one act element.
There may be more than one act element, but there must always be at least one. If you have not
identified an act element, then go back and reconsider your work. If you do not identify a fact
element, then do not worry. There is no requirement that a crime include a fact element.
If you identify any fact elements, then think about what kinds of evidence a prosecutor would need
to establish the existence of that fact and the coincidence of that fact with the other elements of the
crime.
Sometimes, prosecutors fulfill their burdens of proof with respect to fact elements by entering into
stipulation agreements with defendants. A stipulation is simply an agreement between the parties
documenting that there is no dispute relating to a fact or material issue in the litigation. For
example, if a predicate conviction is one of the fact elements of a criminal charge, then a prosecutor
and defendant might stipulate that the defendant had the prior conviction. Of course, a defendant
need not agree to a stipulation. It is the prosecutor’s burden to prove that fact element of the crime.
Whether to enter into a stipulation involves important questions of trial strategy and evidence law.
To get a sense of the complexities, ask yourself why a defendant might prefer to stipulate to a fact
rather than holding the prosecutor to her burden of proof. One reason is that he might prefer to
avoid having evidence, facts, or details that it might cast him in a bad light revealed to the jury. For
example, in a case involving a predicate offense, a defendant might prefer not to have the details of a
prior offense put before the jury for fear that jurors would judge him by his past acts. Conversely, a
prosecutor might choose not to enter into a stipulation in this circumstance, preferring instead to
put before the jury some of the details underlying a predicate offense. On the other hand,
establishing a predicate felony may require that a jury answer difficult questions of law. In this
circumstance, a prosecutor might be more inclined to stipulate in order to avoid confusing jurors.

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Policy Considerations
Fact elements provide important frames for criminal conduct and therefore play a critical role in not
only distinguishing between conduct that is criminal and conduct that is not, but also in establishing
the relative seriousness of an offense. Consider, for example, marriage. There is nothing criminal
about getting married. But if we change the frame slightly by adding the fact that one or both of the
parties is already married to another person, then this otherwise innocuous act is now bigamy, which
is a crime in most states. This is a fairly trivial example that does not raise very serious policy
questions. If you want to criminalize bigamy, then you have no choice but to include an element
along the lines of “when either or both of the parties is married to another person.” But we have
already considered a case where legislative decisions about whether to include a fact element raise
serious policy questions.
Recall that in Mullaney v. Wilber the Maine homicide law defined “murder” as the “unlawful killing of
a human being with malice aforethought, either express or implied” and further defined “implied
malice aforethought” as “any deliberate, cruel act committed by one person against another . . . .
without a considerable provocation.” As the Supreme Court held in Mullaney, this meant that the
absence of considerable provocation was a fact element under Maine murder law, and therefore had
to be proved beyond a reasonable doubt by the prosecution. By contrast, as the Court pointed out
in Patterson v. New York, the New York Penal Law defined “murder” as “intent to cause the death of
another person, [causing] the death of such person or a third person” and then provided the
opportunity for a defendant to seek mitigation by demonstrating that he acted “under the influence
of extreme emotional disturbance.” These two approaches reflect two different policy decisions,
each effected by the inclusion or omission of a fact element.
The use of predicate offenses as fact elements of crimes also raises serious policy considerations.
The inclusion of a predicate offense as an element of a crime reflects a legislative decision that
defendants with prior offenses are more dangerous, more deserving of more serious punishment, or
more in need of deterrence, incapacitation, or rehabilitation than other offenders. That may seem
like an easy argument to make in the case of serial stalkers, but what about so-called “three strikes”
laws, which impose long prison terms on defendants who have two or more prior felony
convictions? Are these laws well-advised? Should they treat all felonies the same, lumping thieves in
with rapists? These are serious policy questions, all of which relate to the inclusion or omission of
predicate felonies as fact elements of crimes.

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Assessment Questions
1. Recall the “Bueller” exercise from our lesson on the The Voluntary Act Requirement where
you were asked to consider a statute reading:
Any person who, while intoxicated or drunk, is in any public place
where one or more persons are present and manifests a drunken
condition by boisterous or indecent conduct, or loud and profane
discourse, shall be guilty of a misdemeanor punishable by fine.
Imagine a case where the defendant was a committed teetotaler. As a joke, his
friends gave him a cup of “punch,” which, unbeknownst to defendant, was
spiked with alcohol. Once intoxicated, defendant went into a public place
where several people were present and engaged in loud and boisterous
behavior. Would these facts affect your view on the best interpretation of the
statute and, in particular, the categories to which some of the elements should
be assigned? How? What arguments might you make in support of your
interpretation?

2. Defendant is prosecuted under a statute that defines “rape in the second degree” as, inter alia,
“vaginal intercourse with another person . . . who is under 14 years of age and the person
performing the act is at least four years older than the victim.” Which of the following must
a prosecutor prove in order to charge rape in the second degree under this statute?
a. That the defendant engaged in vaginal intercourse with a victim by force.
b. That the defendant engaged in vaginal intercourse with a victim without consent.
c. That the defendant engaged in vaginal intercourse with a victim against her will.
d. That the defendant engaged in vaginal intercourse with a victim who was under the
age of fourteen at the time of the act.

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Exercises
Exercise: The Bear
MEMORANDUM
TO : Pat Terp, Junior States Attorney
FROM: Keshona Brown, Senior States Attorney
RE: Prosecution of “The Bear”

You may have heard about the recent rash of incidents in which sites at local campgrounds were
rummaged and items damaged or taken. Early eyewitness reports indicated that the perpetrator was
a bear, which caused considerable concern in the local community. As it turns out, it was not a bear
but a person who was the culprit. Security cameras at a local commercial campground caught
Bobby Bob, dressed in a bear costume, in the act.
The footage shows Bob approaching a Subaru Outback parked at a campsite. The back of the car is
outfitted with a platform, foam mattress, and two sleeping bags. The tailgate is raised, but the rear
opening is entirely enclosed by a specially designed tent. The owners of the Subaru, Jan and Janice
Janovich, later told police that they are spending the summer touring the country. They usually
drive during the day, stop at a campground in the evening, deploy their tent, cook dinner on a camp
stove, take in some local sights, and sleep on the custom-made platform topped with a foam
mattress in the back of their car. The car also contains the range of personal possessions you might
expect given the Janoviches’ present lifestyle, including clothes and toiletries.
On the evening in question, the Janoviches rode their bikes into town to get some ice cream. While
they were gone, and just after dark, Bob approached their campsite, tore open the tent door using
fake claws attached to the paws on his costume, entered the rear area of the Subaru, rummaged
through the Janoviches’ belongings, and made off with a cache of cash and a bag of food. In order
to cover his tracks, Bob clawed the interior of the car and scattered clothes and other contents of
the car and tent.
After being arrested, Bob immediately invoked his right to counsel and his right to remain silent.
Based on the evidence we have so far, we suspect that he is responsible for at least a dozen similar
incidents, but, for the moment, we will only be prosecuting him for this incident.
The question I would like you to answer is this: Can we prosecute Bob for burglary? By statute,
second degree burglary in this jurisdiction is defined as:
Breaking and entering into a dwelling place at night for the purpose
of committing a felony therein.
Burglary in the first degree is defined as:
Second degree burglary after having committed one or more prior
burglary offenses.

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I have attached to this memorandum a couple of cases you might find helpful. You are of course
welcome to conduct your own research. Just provide me with citations to any authorities upon
which you rely.

UNITED STATES v. STITT

United States v. Sims
139 S.Ct. 399 (2018)

Justice BREYER delivered the opinion of the Court.

The Armed Career Criminal Act requires a federal sentencing judge to impose upon certain persons
convicted of unlawfully possessing a firearm a 15-year minimum prison term. The judge is to impose
that special sentence if the offender also has three prior convictions for certain violent or drug-
related crimes. Those prior convictions include convictions for “burglary.” And the question here
is whether the statutory term “burglary” includes burglary of a structure or vehicle that has been
adapted or is customarily used for overnight accommodation. We hold that it does.
I
The consolidated cases before us involve two defendants, each of whom was convicted in a federal
court of unlawfully possessing a firearm in violation of § 922(g)(1). The maximum punishment for
this offense is typically 10 years in prison. Each offender, however, had prior state burglary
convictions sufficient, at least potentially, to require the sentencing judge to impose a mandatory 15-
year minimum prison term under the Armed Career Criminal Act. That Act, as we have just said,
requires an enhanced sentence for offenders who have at least three previous convictions for certain
“violent” or drug-related felonies. Those prior felonies include “any crime” that is “punishable by
imprisonment for a term exceeding one year” and that also
“(i) has as an element the use, attempted use, or threatened use of physical force against the person
of another; or
“(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” § 924(e)(2)(B) (emphasis added).
The question here concerns the scope of the statutory word “burglary.”
The relevant prior convictions of one of the unlawful firearms offenders, Victor J. Stitt, were for
violations of a Tennessee statute that defines “[a]ggravated burglary” as “burglary of a habitation.” It
further defines “[h]abitation” to include: (1) “any structure, including ... mobile homes, trailers, and
tents, which is designed or adapted for the overnight accommodation of persons,” and (2) any “self-
propelled vehicle that is designed or adapted for the overnight accommodation of persons and is
actually occupied at the time of initial entry by the defendant.”
The relevant prior convictions of the other unlawful firearms offender, Jason Daniel Sims, were for
violations of an Arkansas statute that prohibits burglary of a “residential occupiable structure.” The
statute defines “[r]esidential occupiable structure” to include:

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“a vehicle, building, or other structure:
“(A) [w]here any person lives; or
“(B) [w]hich is customarily used for overnight accommodation of persons whether or not a person
is actually present.” § 5–39–101(1) (emphasis added).
In both cases, the District Courts found that the state statutory crimes fell within the scope of the
word “burglary” in the Armed Career Criminal Act and consequently imposed that statute’s
mandatory sentence enhancement. In both cases, the relevant Federal Court of Appeals held that the
statutory crimes did not fall within the scope of the word “burglary,” vacated the sentence, and
remanded for resentencing.
The Government asked us to grant certiorari to consider the question “[w]hether burglary of a
nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify
as ‘burglary’ under the Armed Career Criminal Act.” And, in light of uncertainty about the scope of
the term “burglary” in the lower courts, we granted the Government’s request.

II
A
The word “burglary,” like the word “crime” itself, is ambiguous. It might refer to a kind of crime, a
generic crime, as set forth in a statute (“a burglary consists of behavior that ...”), or it might refer to
the way in which an individual offender acted on a particular occasion (“on January 25, Jones
committed a burglary on Oak Street in South San Francisco”). We have held that the words in the
Armed Career Criminal Act do the first. Accordingly, we have held that the Act requires us to
evaluate a prior state conviction “in terms of how the law defines the offense and not in terms of
how an individual offender might have committed it on a particular occasion.” A prior state
conviction, we have said, does not qualify as generic burglary under the Act where “the elements of
[the relevant state statute] are broader than those of generic burglary.” The case in which we first
adopted this “categorical approach” is Taylor v. United States, 495 U.S. 575 (1990). That case, which
specifically considered the statutory term “burglary,” governs here and determines the outcome.
In Taylor, we did more than hold that the word “burglary” refers to a kind of generic crime rather
than to the defendant’s behavior on a particular occasion. We also explained, after examining the
Act’s history and purpose, that Congress intended a “uniform definition of burglary [to] be applied
to all cases in which the Government seeks” an enhanced sentence under the Act. We held that this
uniform definition includes “at least the ‘classic’ common-law definition,” namely, breaking and
entering a dwelling at night with intent to commit a felony. But we added that it must include more.
The classic definition, by excluding all places other than dwellings, we said, has “little relevance to
modern law enforcement concerns.” Perhaps for that reason, by the time the Act was passed in
1986, most States had expanded the meaning of burglary to include “structures other than
dwellings.”
In addition, the statute’s purpose, revealed by its language, ruled out limiting the scope of “burglary”
to especially serious burglaries, e.g., those having elements that created a particularly serious risk of
©David Gray, 2021 8
physical harm. If that had been Congress’s intent, adding the word “burglary” would have been
unnecessary, since the (now-invalid) residual clause “already include[d] any crime that ‘involves
conduct that presents a serious potential risk of physical injury to another.’” We concluded that the
Act’s term “burglary” must include “ordinary,” “run-of-the-mill” burglaries as well as aggravated
ones. And we defined the elements of generic “burglary” as “an unlawful or unprivileged entry into,
or remaining in, a building or other structure, with intent to commit a crime.”
B
The relevant language of the Tennessee and Arkansas statutes falls within the scope of generic
burglary’s definition as set forth in Taylor. For one thing, we made clear in Taylor that Congress
intended the definition of “burglary” to reflect “the generic sense in which the term [was] used in
the criminal codes of most States” at the time the Act was passed. In 1986, a majority of state
burglary statutes covered vehicles adapted or customarily used for lodging—either explicitly or by
defining “building” or “structure” to include those vehicles.
For another thing, Congress, as we said in Taylor, viewed burglary as an inherently dangerous crime
because burglary “creates the possibility of a violent confrontation between the offender and an
occupant, caretaker, or some other person who comes to investigate.” An offender who breaks into
a mobile home, an RV, a camping tent, a vehicle, or another structure that is adapted for or
customarily used for lodging runs a similar or greater risk of violent confrontation
Although, as respondents point out, the risk of violence is diminished if, for example, a vehicle is
only used for lodging part of the time, we have no reason to believe that Congress intended to make
a part-time/full-time distinction. After all, a burglary is no less a burglary because it took place at a
summer home during the winter, or a commercial building during a holiday.
...
Respondents also point out that in Taylor, Mathis, and other cases, we said that burglary of certain
nontypical structures and vehicles fell outside the scope of the federal Act’s statutory word
“burglary.” . . . And they argue that the vehicles covered here are analogous to the nontypical
structures and vehicles to which the Court referred in those cases. Our examination of those cases,
however, convinces us that we did not decide in either case the question now before us.
In Taylor, for example, we referred to a Missouri breaking and entering statute that among other
things criminalized breaking and entering “any boat or vessel, or railroad car.” We did say that that
particular provision was beyond the scope of the federal Act. But the statute used the word “any”; it
referred to ordinary boats and vessels often at sea (and railroad cars often filled with cargo, not
people), nowhere restricting its coverage, as here, to vehicles or structures customarily used or
adapted for overnight accommodation. The statutes before us, by using these latter words, more
clearly focus upon circumstances where burglary is likely to present a serious risk of violence.
In Mathis, we considered an Iowa statute that covered “any building, structure, ... land, water or air
vehicle, or similar place adapted for overnight accommodation of persons [or used] for the storage
or safekeeping of anything of value.” Courts have construed that statute to cover ordinary vehicles
because they can be used for storage or safekeeping. That is presumably why, as we wrote in our
opinion, “all parties agree[d]” that Iowa’s burglary statute “covers more conduct than generic

©David Gray, 2021 9

burglary does.” The question before us was whether federal generic “burglary” includes within its
scope a burglary statute that lists multiple, alternative means of satisfying one element, some of
which fall within Taylor’s generic definition and some of which fall outside it. We held, in light of the
parties’ agreement that the Iowa statute covered some “outside” behavior (i.e., ordinary vehicles),
that the statute did not count as a generic burglary statute. But for present purposes, what matters is
that the Court in Mathis did not decide the question now before us—that is, whether coverage of
vehicles designed or adapted for overnight use takes the statute outside the generic burglary
definition. We now decide that latter question, and, for the reasons we have stated, we hold that it
does not.
III
Respondent Sims argues that Arkansas’ residential burglary statute is too broad to count as generic
burglary for a different reason, namely, because it also covers burglary of “a vehicle ... [i]n which any
person lives.” Sims adds that these words might cover a car in which a homeless person occasionally
sleeps. Sims’ argument rests in part upon state law, and the lower courts have not considered it. As
“we are a court of review, not of first view,” we remand the Arkansas case to the lower courts for
further proceedings. Those courts remain free to determine whether Sims properly presented the
argument and to decide the merits, if appropriate.
We reverse the judgment of the Sixth Circuit Court of Appeals. We vacate the judgment of the
Eighth Circuit Court of Appeals and remand the case for further proceedings consistent with this
opinion.
It is so ordered.

CALIFORNIA V. CARNEY
471 U.S. 386 (1985)
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to decide whether law enforcement agents violated the Fourth Amendment
when they conducted a warrantless search, based on probable cause, of a fully mobile "motor home"
located in a public place.
I
On May 31, 1979, Drug Enforcement Agency Agent Robert Williams watched respondent, Charles
Carney, approach a youth in downtown San Diego. The youth accompanied Carney to a Dodge
Mini Motor Home parked in a nearby lot. Carney and the youth closed the window shades in the
motor home, including one across the front window. Agent Williams had previously received
uncorroborated information that the same motor home was used by another person who was
exchanging marihuana for sex. Williams, with assistance from other agents, kept the motor home
under surveillance for the entire one and one-quarter hours that Carney and the youth remained
inside. When the youth left the motor home, the agents followed and stopped him. The youth told
the agents that he had received marihuana in return for allowing Carney sexual contacts.

©David Gray, 2021 10

At the agents' request, the youth returned to the motor home and knocked on its door; Carney
stepped out. The agents identified themselves as law enforcement officers. Without a warrant or
consent, one agent entered the motor home and observed marihuana, plastic bags, and a scale of the
kind used in weighing drugs on a table. Agent Williams took Carney into custody and took
possession of the motor home. A subsequent search of the motor home at the police station
revealed additional marihuana in the cupboards and refrigerator.
Respondent was charged with possession of marihuana for sale. At a preliminary hearing, he moved
to suppress the evidence discovered in the motor home. The Magistrate denied the motion,
upholding the initial search as a justifiable search for other persons, and the subsequent search as a
routine inventory search.
Respondent renewed his suppression motion in the Superior Court. The Superior Court also
rejected the claim, holding that there was probable cause to arrest respondent, that the search of the
motor home was authorized under the automobile exception to the Fourth Amendment's warrant
requirement, and that the motor home itself could be seized without a warrant as an instrumentality
of the crime. Respondent then pleaded nolo contendere to the charges against him, and was placed
on probation for three years.
Respondent appealed from the order placing him on probation. The California Court of Appeal
affirmed, reasoning that the vehicle exception applied to respondent's motor home.
The California Supreme Court reversed the conviction. The Supreme Court did not disagree with
the conclusion of the trial court that the agents had probable cause to arrest respondent and to
believe that the vehicle contained evidence of a crime; however, the court held that the search was
unreasonable because no warrant was obtained, rejecting the State's argument that the vehicle
exception to the warrant requirement should apply. That court reached its decision by concluding
that the mobility of a vehicle “is no longer the prime justification for the automobile exception;
rather, ‘the answer lies in the diminished expectation of privacy which surrounds the automobile.’”
The California Supreme Court held that the expectations of privacy in a motor home are more like
those in a dwelling than in an automobile because the primary function of motor homes is not to
provide transportation but to “provide the occupant with living quarters.”
. . . We reverse.

II
The Fourth Amendment protects the “right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures.” This fundamental right is preserved
by a requirement that searches be conducted pursuant to a warrant issued by an independent judicial
officer. There are, of course, exceptions to the general rule that a warrant must be secured before a
search is undertaken; one is the so-called "automobile exception" at issue in this case. This exception
to the warrant requirement was first set forth by the Court 60 years ago in Carroll v. United States,
267 U.S. 132 (1925). There, the Court recognized that the privacy interests in an automobile are
constitutionally protected; however, it held that the ready mobility of the automobile justifies a lesser

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degree of protection of those interests. The Court rested this exception on a long-recognized
distinction between stationary structures and vehicles:
[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth
Amendment has been construed, practically since the beginning of Government, as
recognizing a necessary difference between a search of a store, dwelling house or other
structure in respect of which a proper official warrant readily may be obtained, and a
search of a ship, motor boat, wagon or automobile, for contraband goods, where it is
not practicable to secure a warrant because the vehicle can be quickly moved out of
the locality or jurisdiction in which the warrant must be sought.
Id. at 153 (emphasis added).
The capacity to be “quickly moved” was clearly the basis of the holding in Carroll, and our cases
have consistently recognized ready mobility as one of the principal bases of the automobile
exception. In Chambers, for example, commenting on the rationale for the vehicle exception, we
noted that “the opportunity to search is fleeting since a car is readily movable” More recently, in
United States v. Ross, 456 U.S. 798, 806 (1982), we once again emphasized that “an immediate
intrusion is necessary" because of "the nature of an automobile in transit. . . .” The mobility of
automobiles, we have observed, “creates circumstances of such exigency that, as a practical
necessity, rigorous enforcement of the warrant requirement is impossible.”
However, although ready mobility alone was perhaps the original justification for the vehicle
exception, our later cases have made clear that ready mobility is not the only basis for the exception.
The reasons for the vehicle exception, we have said, are twofold.
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.
Even in cases where an automobile was not immediately mobile, the lesser expectation of privacy
resulting from its use as a readily mobile vehicle justified application of the vehicular exception. In
some cases, the configuration of the vehicle contributed to the lower expectations of privacy; for
example, we held in Cardwell v. Lewis that, because the passenger compartment of a standard
automobile is relatively open to plain view, there are lesser expectations of privacy. But even when
enclosed "repository" areas have been involved, we have concluded that the lesser expectations of
privacy warrant application of the exception. We have applied the exception in the context of a
locked car trunk, Cady v. Dombrowski, supra, a sealed package in a car trunk, Ross, supra, a closed
compartment under the dashboard, Chambers v. Maroney, supra, the interior of a vehicle's upholstery,
Carroll, supra, or sealed packages inside a covered pickup truck, United States v. Johns, 469 U.S. 478
(1985).
...
While it is true that respondent's vehicle possessed some, if not many of the attributes of a home, it
is equally clear that the vehicle falls clearly within the scope of the exception laid down in Carroll and
applied in succeeding cases. Like the automobile in Carroll, respondent’s motor home was readily
mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach

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of the police. Furthermore, the vehicle was licensed to “operate on public streets; [was] serviced in
public places; . . . and [was] subject to extensive regulation and inspection.” Rakas v. Illinois, 439
U.S. 128, 154, n. 2 (1978) (POWELL, J., concurring). And the vehicle was so situated that an
objective observer would conclude that it was being used not as a residence, but as a vehicle.
Respondent urges us to distinguish his vehicle from other vehicles within the exception because it
was capable of functioning as a home. In our increasingly mobile society, many vehicles used for
transportation can be and are being used not only for transportation but for shelter, i.e., as a "home"
or "residence." To distinguish between respondent's motor home and an ordinary sedan for
purposes of the vehicle exception would require that we apply the exception depending upon the
size of the vehicle and the quality of its appointments. Moreover, to fail to apply the exception to
vehicles such as a motor home ignores the fact that a motor home lends itself easily to use as an
instrument of illicit drug traffic and other illegal activity. In United States v. Ross, 456 U.S. at 822, we
declined to distinguish between “worthy” and “unworthy” containers, noting that “the central
purpose of the Fourth Amendment forecloses such a distinction.” We decline today to distinguish
between “worthy” and “unworthy” vehicles which are either on the public roads and highways, or
situated such that it is reasonable to conclude that the vehicle is not being used as a residence.
Our application of the vehicle exception has never turned on the other uses to which a vehicle might
be put. The exception has historically turned on the ready mobility of the vehicle, and on the
presence of the vehicle in a setting that objectively indicates that the vehicle is being used for
transportation. These two requirements for application of the exception ensure that law
enforcement officials are not unnecessarily hamstrung in their efforts to detect and prosecute
criminal activity, and that the legitimate privacy interests of the public are protected. Applying the
vehicle exception in these circumstances allows the essential purposes served by the exception to be
fulfilled, while assuring that the exception will acknowledge legitimate privacy interests.
...
The judgment of the California Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.

It is so ordered.

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Exercise #2: Three Strikes
MEMORANDUM
TO : Pat Terp, Legislative Assistant
FROM: Sandy Brown, Senator
RE: Proposed Amendments to our “Three Strikes” Law

I have a major vote coming up on a piece of legislation that would modify our state’s “three strikes”
law. As it currently reads, our statute provides that:
In any case where a defendant is convicted of a felony and has been
previously convicted of two or more felonies, the defendant shall be
sentenced to a term of imprisonment of not less than 25 years or more
than life.
One of my colleagues has proposed that this law be amended so it would provide that:
In any case where a defendant is convicted of a serious felony involving
the use or threatened use of violence and has been previously
convicted of two or more serious felonies involving the use or
threatened use of violence, the defendant shall be sentenced to a term
of imprisonment of not less than 25 years or more than life.
I would like your thoughts on whether I should vote for this change in the law. I am particularly
interested in which of the two options is more consistent with our general sentencing statute, which
provides that:
The court shall impose a sentence sufficient, but not greater than
necessary, to
(A) reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense;
(B) afford adequate deterrence to criminal conduct;
(C) protect the public from further crimes of the defendant; and
(D) provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner.

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