criminal Procedure

[T]he most basic constitutional rule in this area is 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 well-delineated exceptions.” . . . In times of unrest, whether caused by crime or racial conflict or fear of

internal subversion, this basic law and the values that it represents may appear unrealistic or “extravagant” to some. But the values were those of the authors of our fundamental

constitutional concepts.

—JUSTICE POTTER STEWART, Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971)

CHAPTER OUTLINE

HOT PURSUIT AND OTHER EXIGENCY SEARCHES

Hot Pursuit Other Exigencies

THE AUTOMOBILE EXCEPTION An Overview of Vehicle Search Rules The Automobile Exception Search Incident to Arrest Meets the Automobile Search Searches of Containers in Mobile Vehicles

AUTOMOBILE INVENTORY SEARCHES BORDER AND EXTRATERRITORIAL SEARCHES

Border Searches Extraterritorial Arrests and Searches

REGULATORY SEARCHES AND THE SPECIAL NEEDS DOCTRINE

Origins of the Doctrine and Administrative Searches Fire Inspections Early Special Needs Cases: Creating a Doctrine Drug Testing

LAW IN SOCIETY: RACIAL PROFILING AND CONSTITUTIONAL RIGHTS

Racial Profiling and the “War on Drugs” The Discovery of Racial Profiling The Political Reaction to Racial Profiling Is Racial Profiling a Rational Policy? The Costs of Racial Profiling

SUMMARY LEGAL PUZZLES JUSTICES OF THE SUPREME COURT: THOUGHTFUL CONSERVATIVES: CLARK, HARLAN II, STEWART, AND WHITE

Tom C. Clark John M. Harlan II Potter Stewart Byron R. White

KEY TERMS

administrative search automobile search border border search

crime scene investigation exception

emergency aid doctrine exigency exception extraterritorial

fixed checkpoint hot pursuit impound in loco parentis inventory search

pervasively regulated industry

roving patrol special needs doctrine warrantless search

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Warrantless searches are of enormous practical importance to police work. Despite the Supreme Court’s preference for a search warrant, warrantless searches are far more common. Every warrantless search is conducted without prior judicial review but is subject to judicial re- view after the fact. Nevertheless, a search based on an officer’s assessment of probable cause is more likely to be arbitrary than one subjected to the warrant process.

This text has already discussed several kinds of warrantless searches: plain view, consent, search incident to arrest, and the Terry stop and frisk. Each is based on a different rationale and is held to different legal standards. An item lawfully seized in plain view, for example, involves no Fourth Amendment interest or expectation of privacy because the officer is in a public or other lawful place when the “plain view” occurs. A consent search is not burdened by the Fourth Amendment because the person has voluntarily given up the right of privacy, even if the officer does not have probable cause or reasonable suspicion to believe that the person is carrying con- traband. The Fourth Amendment, however, imposes one absolute standard on all warrantless searches—they must be reasonable. Thus, for example, consent must be truly voluntary, and an item in plain view must be immediately apparent as contraband.

In contrast to consent searches and plain view seizures, which do not directly interfere with Fourth Amendment rights, a group of warrantless searches are valid even though they directly interfere with personal rights under the search and seizure amendment. These warrant- less searches impinge on a person’s expectation of privacy but are deemed reasonable because each occurs under emergency conditions. These exigency exceptions include (1) home entries under a condition of hot pursuit, (2) the “automobile exception,” and (3) search incident to arrest (see Chapter 4). The Supreme Court has also allowed forcible warrantless searches for evidence in a few miscellaneous cases that Professors Whitebread and Slobogin have labeled “evanescent evidence.” That is, when evidence may be destroyed or may disappear, police can forcibly re- strain a suspect and take the evidence, as long as the methods are not brutal.1 This includes tak- ing blood from a vehicular homicide suspect (Schmerber v. California, 1966; see Chapter 3) or scrapings of dried blood from the finger of a homicide suspect (Cupp v. Murphy, 1973; see Chapter 4). In addition, warrantless entries into premises are allowed for exigencies, as in police officers entering a home in Arizona v. Hicks (1987) (see Chapter 3) and firefighters entering a burning building (this chapter).

For an exigency search to be lawful, an officer must have probable cause to believe that contraband is in the place or vehicle being entered or probable cause to arrest the person being searched incident to arrest. These exigency exceptions are compatible with the warrant- preference construction of the Fourth Amendment (see “The Fourth Amendment’s Structure” in Chapter 2):

Thus the most basic constitutional rule in this area is that “searches conducted out- side the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically es- tablished and well-delineated exceptions.” The exceptions are “jealously and care- fully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” (Coolidge v. New Hampshire, 1971)

The exigency exceptions existed under common law and, because of their obvious necessity, do not undermine the warrant requirement. The warrant-preference construction warns against cre- ating new categories of exceptions. Recently, however, the Court has indeed weakened the war- rant-preference policy of the Fourth Amendment by extending the scope of automobile searches and by creating a class of warrantless searches justified by “special needs beyond the normal need for law enforcement.” This chapter also reviews other kinds of nonexigency warrantless searches: inventory searches, administrative searches, and border searches.

To reiterate, the basic rule that justifies all warrantless searches under the Fourth Amendment is reasonableness. Beyond this basic requirement, the exigency exceptions require the prior existence of probable cause. Some warrantless searches dispense with probable cause and rely on reasonable suspicion (e.g., Terry stops and searches of public school students’ bags by teachers). Other warrantless searches require no probable cause or reasonable suspicion (e.g., automobile inventory searches). And still others dispense with particularized suspicion against a specific person (e.g., automobile sobriety checklanes).

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HOT PURSUIT AND OTHER EXIGENCY SEARCHES

Hot Pursuit

Hot pursuit occurs when a dangerous criminal suspect is being chased by police and enters a place that is protected by the Fourth Amendment expectation of privacy, such as the suspect’s home. The suspect presents a danger to society: He or she may flee, harm someone, or destroy evidence. Police officers need to enter the premises immediately to make an arrest and to search for weapons and contraband. The immediacy of a hot pursuit makes it absurd to “stop the action” to obtain a search warrant to enter. A greater danger to the public and to the police might devel- op if police cordoned off a house because it gives the suspect an opportunity to destroy evidence and to fortify the residence. As a result, the hot pursuit exception allows the police to enter im- mediately, without an arrest or search warrant, to make an arrest. If evidence of a crime is ob- served in plain view during the hot pursuit entry for purposes of arrest, it may be seized and is admissible in a criminal trial.

In Warden v. Hayden (1967), cab drivers followed Hayden to a house after he had robbed the taxi company office. They transmitted the information to the taxi dispatcher, who in turn re- layed the information to the police. Police officers arrived at Hayden’s home “within minutes” of receiving the call, knocked on his door, and entered when the door was opened by his wife. They searched through the house looking for the suspect and found incriminating evidence in a wash- ing machine: a jacket and trousers similar to that worn by the robber. This evidence would be ad- missible only if the initial entry was lawful. The Supreme Court, holding the entry and search constitutional, explained the basis of the hot pursuit exception to the warrant requirement:

The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have ensured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape. (Warden v. Hayden, 1967)

Several legal principles of the hot pursuit exception can be derived from this case. First, the hot pursuit warrant exception, as an exigency exception, must be based on probable cause to believe that the person who has just entered the premises has committed a felony or is dangerous to the safety of others. Second, hot pursuit may be based either on the officer’s personal observa- tions or on reliable hearsay. Third, the pursuit need not be immediate; there may be a short time lapse between the suspect’s entry into the house and the arrival of the police. The fourth rule con- cerns the scope of the search pursuant to the hot pursuit entry. “The permissible scope of search must, . . . at the least, be as broad as may reasonably be necessary to prevent the dangers that the suspect at large in the house may resist or escape” (Warden v. Hayden, 1967). In other words, until the offender is found, the police may search the entire premises for suspects, weapons, and evidence of the crime. However, once the offender has been apprehended, the police may not search beyond the limits of a search incident to an arrest.

Most hot pursuits proceed from public property onto private property. United States v. Santana (1976) established a fifth rule: The pursuit may begin on private property. Officers had reliable information that “Mom” Santana was in possession of marked money from a heroin buy. As the police approached her house, Santana was standing in the doorway holding a paper bag. She retreated to a vestibule, where the police seized her. In a brief struggle, heroin packets fell from the bag and were lawfully seized by the police. Here, although the pursuit technically began on private property, the Court held that for Fourth Amendment purposes, it was a public place. The Santana ruling, however, does not allow the police to enter a house where there is no exi- gency and thereby “create” one. Santana also indicates a sixth rule: there must be a pursuit. A “‘hot pursuit’ means some sort of a chase, but it need not be an extended hue and cry in and about the public streets. The fact that the pursuit here ended almost as soon as it began did not render it any the less a ‘hot pursuit’ sufficient to justify the warrantless entry into Santana’s house.” (U.S. v. Santana, 1976, quotes and text modifications omitted).

The seventh rule, established by Welsh v. Wisconsin (1984), concerns the gravity of the of- fense: Police may enter a premises without a warrant in hot pursuit only for serious crimes. A minor offense does not create an exigency that overrides the Fourth Amendment rule that police

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must obtain an arrest warrant in order to arrest a suspect in his or her home (Payton v. New York, 1980). The offense in Welsh was a civil infraction of driving while intoxicated (DWI). Welsh’s erratic driving resulted in his car’s careening off a road and into a ditch on a rainy night. A wit- ness saw the apparently intoxicated driver walk off into the night and called the police, who arrived at Welsh’s nearby home within the hour. They entered the house without a warrant or the consent of Welsh’s stepdaughter, found Welsh in bed, arrested him, and took him to the police station, where he refused to submit to a breath analysis test. His refusal could result in a license revocation only if the arrest was legal, and this, in turn, depended on the legality of the forcible, warrantless home entry. The state’s only rationale for a constitutional entry was hot pursuit.

The Wisconsin Supreme Court upheld the warrantless entry because of the need to prevent harm to the offender and the public resulting from drunk driving and to prevent the “destruction” of the blood alcohol evidence by its dissipation before testing could be completed. The U.S. Supreme Court reversed. It discounted the weak public safety reasoning because the offender was in bed and thus no longer a threat to anyone. Preservation of evidence is a basis of the hot pursuit exigency, but the Court held “that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made.” Under Wisconsin law, the underlying offense in this case—first-offense DWI—was a noncriminal violation subject to a $200 fine. Justice Brennan, writing for the majority, noted that a warrantless entry into a home is presumptively unreasonable and that the burden of proof is on the government to show that an exigency makes a warrantless entry reasonable. The Court felt that a hot pursuit entry for a minor crime is presumptively unreasonable and difficult for the gov- ernment to rebut.

The entry and search in this case violated the Fourth Amendment because (1) “there was no immediate or continuous pursuit of the petitioner from the scene of a crime,” (2) Welsh had arrived home and abandoned his car so there was little remaining threat to the public safety, and (3) the exigency of ascertaining Welsh’s blood-alcohol level was outweighed by the fact that first-offense DWI was classified as a civil offense. The majority believed that this would be “un- reasonable police behavior that the principles of the Fourth Amendment will not sanction.”

Justice Byron White’s dissent noted that a warrantless entry into a home is as serious a Fourth Amendment intrusion for a person wanted for a serious felony as for a minor crime. He disagreed with the majority’s assessment of gravity because of the danger to highway safety by drunk drivers. The warrantless intrusion into Welsh’s bedroom promoted the “valid and substan- tial state interests” of prosecuting drunk driving. He also suggested that police are better served by bright-line rules so that what constitutes a serious offense—justifying hot pursuit—is not open to interpretation. The dissent also urged the Court to defer to the state’s judgment as to the seriousness of the offense.

Welsh does not indicate what constitutes a nonserious crime, beyond the civil offense of first-time DWI punishable by a fine. Justice William Brennan implied that a simple bright-line division between felonies and misdemeanors is not the proper line between serious and nonse- rious offenses. Even if the Welsh rule does not apply only to civil offenses punishable by a fine, the case itself does not establish the serious–nonserious criterion. Perhaps, then, it is the penalty, such as imprisonment for thirty days or six months. Or possibly, hot pursuit is not proper for some nonviolent felonies but is for some violent misdemeanors. Another uncertainty left by Welsh is whether the hot pursuit exception for minor crimes applies in premises other than the home.

The Supreme Court held in Minnesota v. Olson (1990) that being wanted for a serious felony does not in itself create an exigency. Police suspected that Olson, a murder suspect, was in a house, and they entered without a warrant. Their attempt to justify the warrantless entry on the basis of hot pursuit was undercut by several factors:

• The suspect was thought to be the driver of a get-away car and not the shooter. • The police had already recovered the murder weapon. • There was no suggestion of danger to other people from the suspect. • The entry occurred a day after the murder-robbery. • Three or four police squads surrounded the house, which was secured.

Minnesota v. Olson demonstrates that the finding of an exigency is a factual determination made by a court assessing all of the circumstances of the case.

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Other Exigencies

The hot pursuit warrant exception is an example of a general rule that police may enter a premises or conduct a search without a warrant when exigent circumstances justify the search or intrusion. The exigent circumstance may be an imminent threat to the life or safety of people that no police officer should ignore. In Arizona v. Hicks (1987) (see Chapter 3), the officer properly entered an apartment to search for a man who had shot a bullet through the floor into another apartment, injuring an occu- pant and creating an obvious and continuing threat to life and safety. In Hicks, there was probable cause to believe that a person had committed a felony. There was no hot pursuit as such, but the entry met the reasonableness criterion of an exigency exception. Warrantless entry into homes by govern- ment agents who are not police officers enforcing the criminal law must also be supported by a real exigency: firefighting is a prime example (Michigan v. Tyler, 1978; Michigan v. Clifford, 1984).

The warrantless entry in Arizona v. Hicks (1987) was made under what has come to be recog- nized as the emergency aid doctrine (Brigham City v. Stuart, 2006). The duty of police to come to the aid of those who are in danger of losing life or limb is so apparent that it gives rise to relatively little litigation. In Stuart, police were called to a loud house party at 3 a.m., heard loud shouting, walked down a driveway, and saw two teenagers drinking beer in the yard. Through a screen door and windows, they saw a fight in the kitchen between four adults and a juvenile, who punched the face of one of the adults, causing him to spit blood in the sink. The other adults pushed the juvenile up against a refrigerator to restrain him. “At this point, an officer opened the screen door and an- nounced the officers’ presence. Amid the tumult, nobody noticed. The officer entered the kitchen and again cried out, and as the occupants slowly became aware that the police were on the scene, the altercation ceased.” Under these circumstances, the officer’s warrantless entry was justified. As a matter of Fourth Amendment law, the test of the entry’s reasonableness is objective. The circum- stances made it objectively reasonable for an officer to believe that the injured adult needed medical aid and that the violence in the kitchen might continue. “Nothing in the Fourth Amendment re- quired [the officers] to wait until another blow rendered someone ‘unconscious’ or ‘semi- conscious’ or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hock- ey) referee, poised to stop a bout only if it becomes too one-sided” (Brigham City v. Stuart, 2006).

An immediate warrantless search and seizure is constitutional where essential to prevent the destruction of criminal evidence. In Schmerber v. California (1966), a driver was arrested in a hospital while being treated for injuries suffered in an automobile accident. A police officer di- rected a physician to draw blood for alcohol testing. The sample was admitted into evidence to convict Schmerber of driving while intoxicated. This critical evidence would have been lost if the blood were not promptly drawn. The seizure was reasonable because the routine collection of blood by medical workers is not dangerous, overly invasive, or humiliating, and is likely to pro- duce highly accurate evidence. Probable cause existed to believe Schmerber committed the crime and the intrusion on privacy interests was minimal.

Other cases have upheld warrantless searches as reasonable because of the exigency that evidence might be destroyed. In these cases, privacy rights were minimal, and the cases did not precisely fit the search incident to arrest warrant exception. United States v. Edwards (1974) in- volved taking potentially incriminating paint chips from the clothing of a police lockup inmate who was ordered to exchange his clothing for jail issue. Cupp v. Murphy (1973), discussed in Chapter 4, upheld the removal of what was apparently dried blood from the finger of a potential murder suspect, who had not been arrested, at a police station.

REJECTING THE CRIME SCENE INVESTIGATION EXCEPTION The Supreme Court rejected a crime scene investigation exception to the warrant requirement in Mincey v. Arizona (1978). A police officer was killed in a drug raid in the Tucson, Arizona, apartment of Rufus Mincey, who was apparently shot by the slain officer. Backup officers entered the apartment, located other people, called for emergency assistance, and refrained from further investigation. Ten min- utes later, homicide investigators arrived, arranged for the removal of the fatally injured officer and the suspects, and then secured the apartment. They then proceeded to gather evidence.

Their search lasted four days, during which period the entire apartment was searched, photographed, and diagrammed. The officers opened drawers, closets, and

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cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 200 to 300 objects were seized. In short, Mincey’s apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained. (Mincey v. Arizona, 1978)

The evidence obtained in the search was introduced at trial to convict Mincey of homicide and drug possession. The Arizona Supreme Court upheld the warrantless search as reasonable when conducted to investigate “the scene of a homicide—or of a serious personal injury with likeli- hood of death where there is reason to suspect foul play” as long as “the purpose [is] limited to determining the circumstances of death and the scope [does] not exceed that purpose. The search must also begin within a reasonable period following the time when the officials first learn of the murder (or potential murder).”

The Supreme Court unanimously reversed, holding that this warrantless search violated the Fourth Amendment. Although Mincey was a suspect, he retained some reasonable expecta- tion of privacy in his home. To strip a suspect of all rights of privacy in the home “would imper- missibly convict the suspect even before the evidence against him was gathered.” The fact that Mincey was arrested and was in custody does not lessen “his right to privacy in his entire house” (Mincey v. Arizona, 1978). An exigency after the violent crime authorized the initial entry into Mincey’s apartment, the protective sweep, the securing of the apartment, and the seizure of con- traband items in plain view. But “a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search” (Mincey v. Arizona, 1978). The Court also rejected the idea that special promptness was required to search the scene of a homicide, suggesting that an exception for that crime would lead to a blanket crime scene warrant exception and the argument that dispensing with a warrant would be more efficient. There was no suggestion that a search warrant could not have been easily and conveniently obtained. The Supreme Court later held that a warrantless, thorough, sixteen-hour homicide investigation of a cabin violated the Mincey ruling (Flippo v. West Virginia, 1999).

THE AUTOMOBILE EXCEPTION

An Overview of Vehicle Search Rules

The stop and search of mobile vehicles by police raises a variety of constitutional issues, some of which are discussed in Chapters 3, 4, and 7.

1. Stopping I: Probable cause or reasonable suspicion is required to stop a mobile vehicle (Delaware v. Prouse, 1979; see Chapter 4).

2. Stopping II: Innocent behavior can be the basis for stopping an automobile on reason- able suspicion grounds (United States v. Arvizu, 2002; see Chapter 4).

3. Automobile exception: search of vehicle: What is the scope of an officer’s authority to search a stopped mobile vehicle without a warrant? (See United States v. Ross, 1982, in this chapter.)

4. Automobile exception: search of containers: What is the scope of an officer’s authority to look into or to search closed areas or closed containers in a stopped mobile vehicle with- out a warrant? (See California v. Acevedo, 1991, in this chapter.)

5. Pretext stops: An officer may stop a car with objective reasonable suspicion or probable cause of a traffic violation even though the real (subjective) reason for the stop is to search for drugs and there is no legal basis to stop the car for drugs (Whren v. United States, 1996; see Chapter 4).

6. Stop and frisk: An officer may enter an automobile to frisk a suspect or to inspect the in- terior (Adams v. Williams, 1972; Michigan v. Long, 1983; see Chapter 4).

7. Control of driver and passengers: An officer may order the driver and passengers to re- main in or exit the vehicle (Pennsylvania v. Mimms, 1977; Maryland v. Wilson, 1997; Brendlin v. California, 2009; see Chapter 4).

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8. Knowledge and consent: An officer need not inform a driver that he or she is free to go before obtaining consent to search a vehicle (Schneckloth v. Bustamonte, 1973; Ohio v. Robinette, 1996; see Chapter 3).

9. Scope of consent: Consent to search a car includes consent to search a container in the car (Florida v. Jimeno, 1991; see Chapter 3).

10. Questioning: An officer need not read Miranda warnings for a routine stop or for most aspects of a stop for drunk driving (Berkemer v. McCarty, 1984; Pennsylvania v. Muniz, 1990; see Chapter 7).

11. Checklanes: Mobile vehicles may be stopped at checklanes to examine drivers for sobri- ety but not for illegal drug possession (Michigan Department of State Police v. Sitz, 1990; City of Indianapolis v. Edmond, 2000; see Chapter 4).

12. Dog sniff of stopped vehicles: Can police bring a drug-sniffing dog to examine the exte- rior of a stopped vehicle? (Illinois v. Caballes, 20005, see Chapter 4).

13. Impounded vehicles: What rules guide the inventory search of impounded vehicles? (See Florida v. Wells, 1990, in this chapter).

Clearly, an automobile search is a complex legal area. The development of various auto search rules over the last three decades has been one of the most confusing and contentious areas of criminal procedure. Most legal scholars have criticized the Supreme Court automobile search rulings that cut into the Fourth Amendment, accusing the Court of twisting principles to ensure that police officers can search automobiles almost at will. One scholar states, “Although the Court has described warrantless searches as presumptively invalid, more than twenty seemingly haphazard exceptions to the warrant clause in fact have swallowed the warrant requirement.”2

The relentless pressure by police to search cars is driven by the “war on drugs” and by the fact that police departments can augment their budgets by the forfeiture of automobiles found to be transporting illegal drugs.3 The constitutional debate has recently become an explosive law en- forcement and political issue as the practice of racial profiling has been exposed. (See the “Law in Society” section in this chapter.)

The discussion of the automobile exception, narrowly defined, usually focuses on the first four categories just listed. However, in the “real world” of policing, all of the rules and exceptions listed come together to produce a powerful regime of rules that makes it possible for a police offi- cer to search virtually any car that he or she has a mind to stop. Driving is a pervasive activity in America, and it is nearly impossible for anyone to drive without violating some motor vehicle law, including speeding, driving over a line, changing lanes without signaling, inoperative tail- light, headlights not on one-half hour after sunset to one-half hour before sunrise “and at such other times as atmospheric conditions render visibility as low as or lower than is ordinarily the case during that period,” having an excessively loud muffler, and so forth.4 Therefore a police of- ficer following a vehicle is likely to spot a violation at some point and, upon stopping that car, can utilize one of the various automobile search rules to engage in some level of lawful search. The potential—and the reality—of the pervasive stopping of black and Hispanic drivers in large num- bers on pretextual grounds has led Professor David Harris to claim that “[i]ndeed, it is no exagger- ation to say that in cases involving cars, the Fourth Amendment is all but dead.”5 To Professor David Moran this trend culminated in United States v. Arvizu (2002), which found reasonable sus- picion based on a family driving in a camper and “scrupulously obeying all traffic laws. . . . The Court’s new vehicle doctrine is now complete: The police may lawfully stop any car at any time and virtually always search the car.”6 The following section demonstrates how the basic automo- bile search doctrine was fashioned.

The Automobile Exception

The Supreme Court has upheld warrantless searches of automobiles for two reasons:

Our first cases establishing the automobile exception to the Fourth Amendment’s warrant requirement were based on the automobile’s “ready mobility,” an exigency sufficient to excuse failure to obtain a search warrant once probable cause to conduct the search is clear. . . . Carroll v. United States (1925). More recent cases provide a further justification: the individual’s reduced expectation of privacy in an automo- bile, owing to its pervasive regulation. (Pennsylvania v. Labron, 1996)

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Early on, the Supreme Court applied the “automobile” exception to a boat, and lower courts have applied the rule to searches of such mobile vehicles as trains, airplanes, ferries, and houseboats (United States v. Lee, 1927).

Carroll v. United States (1925) is the foundation case for the automobile exigency excep- tion. Chief Justice William Howard Taft wrote:

The guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a difference between a search of a store, dwelling house or other structure in respect of which a proper official search warrant readily may be ob- tained, 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. (Carroll v. United States, 1925)

The Carroll rule requires that (1) police have probable cause to believe that the vehicle contains contraband, and (2) there is a “mobility exigency”—the vehicle will be driven off if it is not im- mediately seized. It is absurd for the police to leave a suspected vehicle to obtain a warrant. In Carroll, the officers had probable cause to believe that bootleggers were transporting illegally imported liquor in violation of the Prohibition laws when they spotted the “Carroll boys” driving toward Grand Rapids, Michigan. The officers stopped the car, felt the back seat, noticed that it was hard, and proceeded to rip and destroy the seat in order to get to the bottles of whiskey. The Court did not comment on this, indicating that the authority to search for contraband may reason- ably include the destruction of some property necessary to get to the evidence.

The second rationale for a warrantless automobile search, a lesser expectation of privacy than exists in homes or in luggage, was explained in California v. Carney (1985):

Even in cases where an automobile was not immediately mobile, the lesser expecta- tion 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 con- tributed to the lower expectation of privacy; for example . . . 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, a sealed package in a car trunk, a closed compartment under the dashboard, the interior of a vehicle’s upholstery, or sealed packages inside a cov- ered pickup truck.

These reduced expectations of privacy derive not from the fact that the area to be searched is in plain view, but from the pervasive regulation of vehicles capable of traveling on the public highways. (California v. Carney, 1985)

The pervasive regulation includes periodic inspection and licensing requirements, and ticketing for driving with expired license plates or inspection stickers or for such violations as exhaust fumes or excessive noise. Furthermore, all members of the public are fully aware of these regu- lations and know that they can be stopped while driving for such errors.

The mobility rationale—a traditional, common law exigency exception to the warrant requirement—easily fits into the warrant-preference construction of the Fourth Amendment. It is a commonsense explanation for dispensing with a warrant. Professor Steinberg states that the lesser expectation of privacy rationale, however, “makes no sense. Under this line of reasoning, a state could eviscerate Fourth Amendment protections simply by heavy regulation of an activi- ty or location.” Also, although houses are “regulated extensively by building codes,” police can- not search them without a warrant.7 It suggests a policy preference on the part of the Supreme Court’s conservative majority to simply give police a free hand when searching in and around an automobile. This conclusion is drawn by Harris, who believes the Court is motivated by “the de- sire that the police have wide latitude to investigate and the safety of the officers while they carry out these duties.”8

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THE MOBILITY FACTOR In Coolidge v. New Hampshire (1971), a plurality of the Court ruled that the exception does not apply to immobilized vehicles. The defendant was arrested and de- tained for murder. Two days later, his car was impounded by police and searched pursuant to a search warrant that was later found to be defective. The state argued that the search was never- theless constitutional under the automobile search exception. The Court rejected this argument, holding that the exception does not apply simply because an automobile was searched:

The word “automobile” is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the mean- ing and purpose of the rule of Carroll v. United States—no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contra- band or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile. In short, by no possible stretch of the legal imagination can this be made into a case where “it is not practicable to secure a warrant,” . . . and the “automobile exception,” despite its label, is simply irrelevant. (Coolidge v. New Hampshire, 1971)

The Court, unfortunately, has not strictly held to this aspect of Coolidge. It has in numer- ous cases invoked the automobile exception to uphold the search of a parked automobile where mobility was not a factor. Coolidge appeared to say that the mobility exigency was based on ac- tual mobility—the immediate, or almost immediate, possibility that the car would be driven away by the suspect. More recently, the Court has diluted this rationale by leaning toward the po- tential mobility of the vehicle. Thus, in Pennsylvania v. Labron (1996), the Court upheld the search of a car belonging to a suspect who had been arrested for a drug transaction. There was no confederate to take the car away, and a warrant could have been obtained. The Pennsylvania Supreme Court ruled that a warrant was required. The U.S. Supreme Court reversed, stating: “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more” (Pennsylvania v. Labron, 1996, emphasis added).

TIME FRAME OF THE EXIGENCY The rights of drivers have also been weakened in cases deal- ing with the time frame of the exigency, both before and after the search. In Coolidge, the auto- mobile was searched two and a half weeks after the police obtained probable cause, far after the time that any real exigency might have existed. The Court, however, has expanded the time frame within which an exigency is said to exist in ways that do not seem reasonable. The foun- dation for this approach was laid in a Prohibition Era case of the same vintage as Carroll: Husty v. United States (1931). A reliable informant told a Prohibition officer that Husty, a previously convicted bootlegger, “had two loads of liquor in automobiles of a particular make and descrip- tion, parked in particular places on named streets.” The agent proceeded to one of the cars, al- though he had sufficient time to obtain a warrant. He saw Husty and two other men get into the car. At that point, the agent approached, and the two other men fled. The car was searched, and contraband was found. In response to the argument that the agents had sufficient time to obtain a warrant, Justice Harlan Fiske Stone reasoned that the agent “could not know when Husty would come to the car or how soon it would be removed. In such circumstances we do not think the of- ficers should be required to speculate upon the chances of successfully carrying out the search, after the delay and withdrawal from the scene of one or more officers which would have been necessary to procure a warrant” (Husty v. United States, 1931). Under these circumstances, an actual exigency existed.

Four decades later, the Supreme Court moved the time frame from the actual to the potential exigency and beyond. When an automobile is stopped by police with probable cause to believe that it contains contraband, the police can search on the spot or perhaps uphold a strict reading of the Fourth Amendment by securing the vehicle until a warrant has been obtained. The Supreme Court properly rejected the argument that a warrant had to be obtained in Chambers v. Maroney (1970): “For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Although the Court has stated a preference for a search warrant,

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holding a person at the roadside until a warrant can be obtained is a severe intrusion of liberty. Justice John M. Harlan II, dissenting, preferred the latter course; he thought that the warrantless search was more intrusive because it could lead to a criminal conviction. He believed that a person with nothing to hide would give police consent to search the car. Despite this reasoning, requiring police to obtain a warrant to search a stopped vehicle can create unnecessary risks and burdens on law enforcement.

In Chambers, the police stopped a car at night because the car and its four passengers fit the description of a car recently involved in a gas station robbery. Under these circumstances, it was neither practical nor safe for the officers to conduct the search on the roadside; consequently, the car was searched at the police station after the suspects were detained. No warrant was obtained to search the car. The Supreme Court held the search to be constitutional as an automobile search. This is a difficult decision because the time of the exigency had ended. Perhaps it was possible for a con- federate or a stranger to enter the automobile and destroy evidence, but this reasoning stretches belief. The Chambers decision demonstrates that the Court ignored the mobility rationale of Carroll, even before establishing the lesser expectation of privacy rationale for automobile searches. In more recent years, as a practical matter, the ad hoc custody of the automobile practiced in Chambers has been replaced by the more routine police practice of impounding all seized vehicles and subjecting them to a detailed inventory search.

Chambers may be explained in part by the Court’s desire to protect police officers’ safety. This made it reasonable for the officer to take the car to the station house instead of searching it on the road at night; there was a real exigency when the car was first seized. But in Texas v. White (1975), the Court allowed the search of a vehicle at the station house, although there was, at best, a potential exigency when the car was seized. White was arrested at 1:30 p.m. while at- tempting to pass fraudulent checks at a drive-in window of a bank, after police had a report of a similar incident at another bank earlier that day by a person matching White’s description. He was ordered to park his car, and a bank employee and an officer observed him attempting to stuff something between the seats of his car. White was driven to the station house while another offi- cer drove his car there. After thirty to forty-five minutes of questioning, White refused to consent to a search of his car, but the officers proceeded to search it anyway. During the search, four wrinkled checks corresponding to those White had attempted to pass at the first bank were dis- covered. The Court, in a brief per curiam opinion, upheld the search on this reading of Chambers: “[P]olice officers with probable cause to search an automobile on the scene where it was stopped could constitutionally do so later at the station house without first obtaining a war- rant.” Justice Thurgood Marshall, joined by Justice Brennan, dissented. He took the majority to task for misreading the holding of Chambers. The facts in Chambers included a nighttime stop of a car with four suspected armed robbers, a clearly perilous scenario. “Chambers simply held [the station house search] to be the rule when it is reasonable to take the car to the station house in the first place” (Texas v. White, 1975, emphasis added). By ignoring these facts, the Court created a per se rule that allows a car seized with probable cause to be searched, even if the car’s mobility was at an end.

The decisions in Chambers and White stretch the time frame of an “exigency” to mythic proportions. A commonsense understanding of an exigency indicates that no true exigency was present when the police searched the cars in these two cases. It is useful to note that these cases occurred before the Supreme Court validated the routine inventory search (discussed later in this chapter). A routine inventory search is not an exigency search and serves other constitutional in- terests than those of a probable cause search. Nevertheless, as a functional matter, if not as a mat- ter of constitutional law, routine inventory searches in effect allow the seizure of all contraband found in a car that is searched well after an arrested person has been taken into custody. In any event, the creation of the lesser expectation of privacy rationale and the “stretching” of the time frame for an exigency were vital elements in the Court’s expansion of the power of police to search cars. The next step was the Court’s willingness to authorize warrantless automobile searches of parked cars.

WHAT IS AN AUTOMOBILE? California v. Carney (1985) gave a precise definition of an auto- mobile for Fourth Amendment purposes. Carney lived in a fully mobile motor home. Police, sus- picious that he was trading drugs for sex, had his motor home under surveillance while it was parked in a downtown San Diego public parking lot not far from the courthouse. They observed a youth enter the vehicle and stay there for an hour and a quarter. When the youth emerged, he

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was stopped by the police and told them that he received marijuana in return for allowing Carney sexual contact. The police and the youth went to the motor home, knocked, and after Carney stepped out, entered it without a warrant and seized illegal drugs.

Carney argued that because this vehicle was also his home, it had to be given the same Fourth Amendment protection as a stationary home—that is, the police could not search it with- out obtaining a warrant. The Supreme Court disagreed, holding that such a motor home is a mo- bile vehicle, subject to similar licensing and regulation requirements as an automobile; therefore, the reasonable (i.e., objective) expectation of privacy in a motor home is equivalent to what one expects in an automobile, not a home. These factors brought the vehicle under the exigency ex- ception to the warrant requirement: “Our application of the vehicle exception has never turned on the other uses to which a vehicle might be put.”

Justice John Paul Stevens dissented in Carney on the grounds that there was no exigency. He urged the Court to rule that the automobile exception should not apply to a parked vehicle where there is time to obtain a warrant, but only to vehicles in motion along the highway. The majority refused to adopt this restriction. However, in Coolidge v. New Hampshire (1971), there was time to obtain a warrant, and the search was held to violate the Fourth Amendment. The Court in Carney distinguished Coolidge on its facts. The seizure in Coolidge was preceded by a two-week investigation, and the vehicle was in full police control, while in Carney the surveil- lance of the van lasted for a little over an hour. The police had ample time to plan their action in Coolidge, while the police in Carney acted with less preparation or planning, although they ap- parently had the ability to obtain a warrant. In Coolidge, the car was taken to the police station, while in Carney, the mobile home was in a public parking lot. In Coolidge, neither the defendant nor anyone associated with him had access to the car, while Carney was in his vehicle and could have driven it away if he was not arrested. The Court stated in Carney, “[T]he respondent’s motor home was readily mobile. Absent the prompt search and seizure, it could readily have been moved beyond the reach of the police.”

The Supreme Court is clearly reluctant to add any qualification or addition to the automo- bile exigency rule that benefits defendants. In Maryland v. Dyson (1999), police had advance warning, amounting to probable cause, that a specific vehicle would come into the jurisdiction with illegal drugs. An intermediate Maryland appellate court ruled that because the police had time to obtain a warrant, there was no exigency, and a search warrant was required. The Court, in a per curiam opinion, reversed. “[U]nder our established precedent, the ‘automobile exception’ has no separate exigency requirement.” Nevertheless, the Dyson decision does not seem consis- tent with the principle, if not the precise facts, of Coolidge v. New Hampshire (1971).

THE VIN RULE The Supreme Court demonstrated its creativity in upholding the legality of a war- rantless police entry into a vehicle in New York v. Class (1986) by fabricating a limited right of in- trusion into a car without probable cause in order to view a vehicle identification number (VIN) not viewable from outside the car. Police stopped a car for speeding. The driver produced a registration certificate and proof of insurance but no driver’s license. The officer could not see the VIN on the dashboard so he “reached into the interior of the car to move some papers obscuring the area of the dashboard where the VIN is located in all post–1969 models. In doing so, the officer saw the han- dle of a gun, and respondent was promptly arrested.” With a valid entry, the gun was in plain view and thus admissible. The Court reasoned that the VIN is needed to protect safety and property and is required by federal regulations to be in a place that can be easily read by someone standing out- side the automobile. Combining the special requirements of the VIN with the lesser expectation of privacy in an automobile, the Court felt justified in creating a warrant exception authorizing such an entry without probable cause to believe there was contraband in the car. Class created a limited police power, because police cannot enter a vehicle if the VIN is observable from the car’s exteri- or, and newer-model cars are designed to make it impossible to cover the VIN.

SEIZURE OF A CAR SUBJECT TO FORFEITURE In Florida v. White (1999), officers observed Tyvessel Tyvorus White make cocaine deliveries in his car in July and August 1993 but did not arrest him. Under the Florida Contraband Forfeiture Act, his car was subject to forfeiture. Several months later, White was arrested at his workplace on charges unrelated to the cocaine de- livery. Police officers went to the employee parking lot, where White’s car was parked, and seized it without a warrant. A subsequent inventory search disclosed cocaine. The Florida Supreme Court ruled the warrantless seizure to be unconstitutional. The U.S. Supreme Court

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reversed and offered two reasons for upholding the warrantless seizure: (1) Although the police had no probable cause to believe that the car contained contraband, “they certainly had probable cause to believe that the vehicle itself was contraband under Florida law,” and the mobility ra- tionale applies to the warrantless seizure of contraband in a mobile vehicle and the mobile vehi- cle itself; and (2) “our Fourth Amendment jurisprudence has consistently accorded law enforce- ment officials greater latitude in exercising their duties in public places.” The Court treated the owner’s private property as a public place for Fourth Amendment purposes and concluded that “the Fourth Amendment did not require a warrant to seize respondent’s automobile” (Florida v. White, 1999).

Justice Stevens dissented in White, joined by Justice Ruth Bader Ginsburg. Under Soldal v. Cook County (1992), the Fourth Amendment protects property as well as privacy interests. There was no exigency here. White had been arrested, and there was sufficient time to obtain a search warrant. The car is not inherent contraband, such as drugs or firearms, so its seizure is not re- quired to preserve public safety. A “warrant application interjects the judgment of a neutral deci- sionmaker, one with no pecuniary interest in the matter.” Justice Stevens found it “particularly troubling. . . not that the State provides a weak excuse for failing to obtain a warrant either before or after White’s arrest, but that it offers us no reason at all” and concluded that “the officers who seized White’s car simply preferred to avoid the hassle of seeking approval from a judicial offi- cer.” The simple convenience of officers was thought too feeble a reason to override Fourth Amendment rights. Although the majority paid lip service to the warrant requirement, “its deci- sion suggests that the exceptions have all but swallowed the general rule.”

CONTROLLING PEOPLE IN THE STOPPED AUTOMOBILE The Supreme Court has given police almost complete control either to order the driver and passengers to remain in the automobile when it is stopped or to order the driver and passengers out. The primary rationale in these case is the safety of the officer.

In Pennsylvania v. Mimms (1977), an automobile was stopped for an expired license plate. On ordering the driver out, the officer noticed a bulge under the driver’s sports jacket. A frisk produced a loaded revolver in Mimms’s waistband. Balancing the interests of individual privacy against the safety of law enforcement officers, the Court unanimously upheld the officer’s frisk and noted that many police officers are killed during routine traffic stops. Against this, the added intrusion of requiring that a driver exit the car momentarily is so minimal that it hardly rises to the level of a “petty indignity”; at most, it is a mere inconvenience that cannot prevail against legitimate concerns for the officer’s safety.

The rule of Mimms was extended to passengers in Maryland v. Wilson (1997). Police stopped a speeding automobile—a rental car with no regular license plate. The officer ordered the driver and the passengers to exit the car. There was no legal suspicion that the passengers were engaged in any illegal activity. As Wilson, a passenger, got out of the car, an amount of crack cocaine fell to the ground. Maryland’s highest court suppressed the evidence on the ground that the police had no authority to order passengers out of the car without some level of individ- ualized suspicion. The court viewed the order to exit as a Fourth Amendment personal seizure. The Supreme Court, in an opinion by Chief Justice Rehnquist, reversed. The Mimms rationale— the officer’s safety—applied equally to passengers. Indeed, the presence of additional people in the car increases the danger to the police. Despite the lack of probable cause or reasonable suspi- cion against the passenger, and the fact that a passenger has a greater liberty interest than the driver, as a practical matter the passenger is already stopped by the police detaining the vehicle. This case is analogous to Michigan v. Summers (1981), which states that police may temporarily detain a person whose home is being searched under a search warrant.

Justice Stevens dissented, arguing that statistics show no greater danger to police from pas- sengers in stopped cars; the decision intrudes on personal liberty without solid reason. Justice Kennedy dissented, saying, “Traffic stops, even for minor violations, can take upwards of 30 minutes. When an officer commands passengers innocent of any violation to leave the vehicle and stand by the side of the road in full view of the public, the seizure is serious, not trivial.” This decision, plus Whren (pretextual stops), “puts tens of millions of passengers at risk of arbitrary control by the police.” When the Wilson rule is combined with the decision of Wyoming v. Houghton (1999), which allows the police to search the handbag of a passenger when there is probable cause to search the automobile, and with the Atwood rule, which authorizes the custo- dial seizure for any arrest, an officer’s control over a stopped automobile is complete.9

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Brendlin v. California (2007) answered a question implied in Maryland v. Wilson and squarely held that when an officer makes a traffic stop, passengers are seized by the stop as well as the driver. Police stopped a car that they knew was operating legally, under soon-to-expire li- cense plate tags, ostensibly to check its registration. The officer recognized passenger Bruce Brendlin as a parole violator with an outstanding no-bail warrant and arrested him. A search of the car disclosed methamphetamine paraphernalia and Brendlin was charged with possession. If a passenger is seized when a car is stopped, Brendlin could argue that his search was the product of an illegal auto stop. If a passenger is not seized unless and until an officer directs attention to and seizes the passenger, then the state could argue that Brendlin was lawfully seized under the outstanding warrant.

A unanimous Supreme Court held that Brendlin was seized the moment the car was stopped. A seizure of the person normally requires physical force or the show of authority. But when an individual’s submission to police action takes the form of “passive acquiescence,” the test of whether the person has been seized is the Mendenhall (1980) test—that in view of all the circumstances “a reasonable person would have believed that he was not free to leave.” The Court has “said over and over in dicta that during a traffic stop an officer seizes everyone in the vehicle, not just the driver.” Any reasonable passenger has the societal expectation and under- standing that he or she cannot simply walk away from a stopped vehicle as if there was no police officer present. The Fourth Amendment test for seizures is objective. The rule the state argues for would require courts to delve into the motives of police officers when seizing passengers of stopped vehicles, adding possible confusion to relatively clear legal rules. As a result, the case was remanded, allowing Brendlin to challenge the legality of the car stop.

Search Incident to Arrest Meets the Automobile Search

Following the decision in Chimel v. California (1969) (see Chapter 4), limiting the scope of a search incident to arrest to the area within the suspect’s “immediate control,” the Supreme Court encountered cases where a person was arrested while in a car, or got out, or was ordered out of the vehicle. Under Chimel, was the entire car under the arrestee’s control, including closed con- tainers and locked compartments? The cases posed a problem similar to that in Chimel, namely, giving the police reasonable authority to enforce the law while maintaining some constitutional limits. These cases also overlap with those discussed in the next section that concern the search of containers within seized automobiles. Although separating the cases into distinct sections is somewhat artificial, the division provides some doctrinal clarity.

In New York v. Belton (1981), the Supreme Court conflated the automobile exigency ex- ception to the search warrant with the search incident to arrest rationale to uphold a search. A lone New York State trooper stopped a speeding car on the New York Thruway, discovered that none of the four men in the car owned it, smelled burnt marijuana, and saw an envelope marked “Supergold” on the floor of the car characteristic of envelopes containing marijuana. The troop- er ordered the men out of the car and separated them. He arrested all four occupants for posses- sion of marijuana, secured them with handcuffs, searched them individually, and returned to the car to pick up the envelope. The trooper then found a leather jacket belonging to Roger Belton, one of the occupants. He unzipped one of the pockets and discovered cocaine. The issue is whether the opening of the zippered jacket pocket was a constitutional search.

The Court relied on the search incident to arrest rule, bolstered in part by the automobile search situation, to hold the search valid under the Fourth Amendment. “[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a con- temporaneous incident of that arrest, search the passenger compartment of that automobile.” And as an extension of that rule, the Court stated that “the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers be within his reach” (emphasis added). This language was inconsistent with the Chadwick-Sanders rule (explained later in this Chapter). The rationale for the holding was that police needed a bright-line rule to guide them in postarrest searches of persons arrested in automobiles. Like pre-Chimel law, the flat Belton rule seemed to say that whenever a police officer, with probable cause, arrested a person in a car or ordered out of a car, the officer had carte blanche to search the car for contraband. Was the Chimel search in- cident rule stretched too far? The suspects were not near the interior of the car when the search was actually made. The majority offered limited reasoning to support its decision beyond the

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need for a bright-line rule. One might reason that Belton was not an unjustifiable extension of Chimel because the officer was outnumbered by four arrestees. Even though he had secured them outside the car, he could not be certain that one of them would not bolt for the car and find a concealed weapon. Belton’s bright-line holding, however, precluded the argument that under some circumstances a search incident to arrest at a vehicle is unreasonable, as, for example, when two police officers arrest a sole driver.

Justice Brennan, dissenting, called the Belton bright-line rule an arbitrary extention of exist- ing law under Chimel. The Chimel exception to the Fourth Amendment warrant requirement was based on (1) the officer’s safety and (2) the need to preserve easily concealed or easily destroyed evidence. Neither rationale is present to search the passenger compartment of a vehicle when the occupants are out of the car and secured. According to Justice Brennan, given that New York courts found that the occupants were no longer any danger, this expansion of the permissible scope of searches incident to arrest “ignores both precedent and principle.” He predicted that under this “dangerous precedent” the result would be the same even if a handcuffed Belton and companions were placed in the patrol car. This, indeed, came to pass in the next case examining this issue.

In Thornton v. United States (2004), Officer Nichols became suspicious that Marcus Thornton was driving in a way to avoid the officer, who was driving an unmarked police vehicle but was in uniform. A license tag check revealed that they were issued to a 1982 Chevy two-door and not to the Lincoln Town Car that Thornton was driving. Before Nichols could pull Thornton over, he drove into a parking lot and got out of the car. Nichols approached and told Thornton that the license tags did not match. Thornton appeared nervous. When asked, Thornton said he had no drugs or weapons on him. Concerned for his safety, Officer Nichols obtained consent to pat down Thornton and felt a bulge. Thornton then admitted to carrying drugs and pulled bags of marijuana and crack cocaine out of his pockets. Nichols handcuffed Thornton, informed him that he was under arrest, and placed him in the back seat of the patrol car. He then searched the Lincoln Town Car and found a BryCo .9-millimeter handgun under the driver’s seat. Thornton was found guilty of possessing a firearm as a previously convicted felon and in furtherance of drug trafficking.

The issue raised was whether Belton’s bright-line rule allowing the search of a car’s pas- senger compartment only applied “where the officer initiated contact with an arrestee while he was still an occupant of the car.” Chief Justice Rehnquists’s plurality opinion (joined by Justices Kennedy, Thomas, and Breyer) upholding the search rested on the need for a bright-line rule and the notion that whether the arrestees were in or out of the car played no role in the Belton deci- sion. What was significant for the future development of rules guiding the search of automobiles incident to the arrest of a driver who had exited or was ordered out were the concerns and reason- ing of three concurring justices. Justice O’Connor, joining Justice Scalia’s concurring opinion, expressed concern that police had taken the Belton rule and run with it to the point that they were no longer constrained by the Constitution: “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel” (officer safety and the need to prevent destruction or concealment of evidence). She referred to Belton’s foundation as “shaky.”

In his lengthy concurrence, Justice Scalia, joined by Justice Ginsburg, reasoned that the risk that Thornton could get out of the police car and grab a weapon or evidence from his own caw was “remote in the extreme.” The government could not point to a single case where that scenario ever occurred. He disagreed with the rationale that “since the officer could have conducted the search at the time of arrest (when the suspect was still near the car), he should not be penalized for having taken the sensible precaution of securing the suspect in the squad car first.” The problem is that “conducting a Chimel search is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the search unlawful.” If the police secure the situ- ation they can still search the car after obtaining a warrant. Finally, the value of a bright-line rule becomes questionable when the cost is, in the words of a federal appellate judge, that “we have now abandoned our constitutional moorings and floated to a place where the law approves of purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find.”

Justice Scalia then engaged in a historical analysis to show that a broad vision of the search incident to arrest, exemplified in the Rabinowitz (1950) decision that was overturned by Chimel, competed with Chimel’s narrow vision. The broad vision was not based on Chimel’s dual ration- ale but “on a more general interest in gathering evidence relevant to the crime for which the

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suspect had been arrested.” (Thornton, 2004, emphasis added). Urging that there is “nothing ir- rational” about this policy, Justice Scalia proposed that “I would therefore limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” This reasoning bore fruit.

The Supreme Court, in Arizona v. Gant (2009), adopted the rule proposed by Justice Scalia in Thornton. Gant was arrested for driving on a suspended licence even though the police officers were more interested in his possible involvement in drugs. After the arrest Gant and other associ- ates were handcuffed and placed in police vehicles. A search of his car thereafter turned up drugs. “When asked at the suppression hearing why the search was conducted, Officer Griffith respond- ed: ‘Because the law says we can do it.’” After conviction the Arizona Supreme Court held the drugs inadmissible and the State appealed. The Supreme Court, noting that the bright-line rule of Belton “has long been criticized and probably merits reconsideration,” affirmed (5–4).

Justice Stevens’s opinion began with the bedrock rule 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 well-delineated excep- tions.” An exception is a far cry from the entitlement that, according to Justice O’Connor, police felt they had, as expressed by Officer Griffith’s candid reply. Although there was a basis for read- ing Belton as limited by its facts, the case had come to be “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” As a result, the Court issued a two-part hold- ing. First, “the Chimel rationale authorizes police to search a vehicle incident to a recent occu- pant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Second, “we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is ‘reasonable to believe ev- idence relevant to the crime of arrest might be found in the vehicle,’” citing Thornton.

Justice Stevens believed that the bright-line reading of Belton was not as clear as it ap- peared and that the dual rules in Gant would not seriously impede law enforcement work. Most important,

[T]he State seriously undervalues the privacy interests at stake. . . . It is particularly significant that Belton searches authorize police officers to search not just the pas- senger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects. (Arizona v. Gant, 2009)

Justice Scalia, concurring, was concerned that the Chimel rationale used to support the Belton–Thornton rule was patently ridiculous and thought that the “charade” should be ended by overruling those cases and abandoning Chimel reasoning in automobile search incident cases al- together. “I would hold that a vehicle search incident to arrest is ipso facto ‘reasonable’ only when the object of the search is evidence of the crime for which the arrest was made, or of an- other crime that the officer has probable cause to believe occurred. Because respondent was ar- rested for driving without a license (a crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful.” As no other justice agreed with setting aside Chimel in automobile search incident to arrest cases, he con- curred. Justice Alito, dissenting (joined by Chief Justice Roberts and Justices Kennedy and Breyer), attacked Justice Stevens’s opinion as improperly setting aside precedent and suggested that his ruling was a plurality and not a majority because of the nature of Juistice Scalia’s con- curring opinion.

Searches of Containers in Mobile Vehicles

A hotly contested automobile search issue in the 1970s and 1980s was the scope of searches of closed areas and containers in seized vehicles. The “container” cases demonstrate that visions of

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constitutional interpretation are shaped by judges’ ideologies. On the one side stood liberal jus- tices Brennan, Marshall, and Stevens, who believed that warrants were required to search con- tainers in vehicles that had been secured by police. This is the position of the warrant-preference construction of the Fourth Amendment and reflects the Due Process Model of criminal justice. On the other side stood the Court’s growing conservative majority, who found the Crime Control Model of criminal justice more congenial. Despite some doctrinal difficulties, they ultimately ruled that under the general-reasonableness construction of the Fourth Amendment, warrants are not needed to open closed areas and containers in automobiles if there is probable cause to be- lieve that the containers contain contraband.

SEARCHES OF CONTAINERS NOT IN AUTOMOBILES In Carroll v. United States (1925), the Supreme Court held that when the automobile exception comes into play, officers could search any part of the car in which the contraband could reasonably be found. The officer’s determina- tion of what to search was coextensive with that of a magistrate. In Carroll, an agent determined that the hard back seat of a roadster established probable cause that bootleg liquor was stowed there. The Court agreed and upheld the agent’s act of tearing up the seat cushion. The destruction of parts of the car within which contraband was stored was therefore allowed if reasonably necessary to seize the contraband.

In contrast to the Carroll case, United States v. Chadwick (1977) held that a person’s “ef- fects” cannot be searched without a warrant, even if an officer has probable cause to believe that the person’s “container” holds contraband. In Chadwick, Amtrak officials in San Diego became suspicious when two people, one of whom fit the profile of a drug trafficker, loaded a footlocker that was unusually heavy for its size and leaking talcum powder (used to mask the odor of mari- juana) on a Boston-bound train. Federal narcotics agents in Boston were on hand two days later when the footlocker arrived. They had no arrest or search warrant, but a trained dog signaled the presence of a controlled substance inside the trunk. Three people took possession of the foot- locker and loaded it into the trunk of a car. At that moment, the agents arrested the three men and seized the footlocker, which was taken to the federal building. An hour and a half later, the agents obtained the key to the footlocker, opened it, and found large amounts of marijuana.

The Supreme Court (7–2), in an opinion authored by Chief Justice Warren Burger, held that this warrantless search violated the Fourth Amendment. Although the agents had probable cause to believe that the footlocker contained illicit drugs, it was protected by the Warrant Clause, which “makes a significant contribution to . . . protection” against unreasonable searches and seizures. As early as 1878, the Supreme Court had said that “[l]etters and sealed packages . . . are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles” (Ex Parte Jackson, 1878). Important privacy interests are at stake when a person sends a locked trunk to another place, both subjective and reasonable (socially objective). There is a constitutional ex- pectation of privacy in such a container. The Court ruled that brief contact of the footlocker with a car did not turn this into an automobile search case. The Court also found that under the facts of the case, a warrantless search of the footlocker could not be justified as a search incident to ar- rest. The Chadwick Court distinguished a footlocker (an “effect”) from an automobile. Although a footlocker is mobile, it is afforded greater Fourth Amendment protection because it is not the subject of pervasive government regulation as is an automobile. Furthermore, once the footlock- er’s general mobility was ended and it was secured in the Boston federal building under the ex- clusive control of the police, there was no exigency that required an on-the-spot search without a warrant. “With the footlocker safely immobilized, it was unreasonable to undertake the addition- al and greater intrusion of a search without a warrant” (United States v. Chadwick, 1977).

SEARCHES OF MOBILE CONTAINERS IN AUTOMOBILES If Chadwick were strictly followed, when police search an automobile under the automobile exigency exception, and they discover a container that does not immediately indicate that it holds contraband (e.g., the hardness of the back seat of the roadster in Carroll indicated bottles of whiskey), they should seize but not open the container and obtain a search warrant. The court followed this line of reasoning in Arkansas v. Sanders (1979). Police had probable cause, supplied by a reliable informant’s tip, that Sanders would arrive at an airport with drugs. Sanders deplaned with a suitcase and entered a taxicab. The police followed the cab for several blocks and pulled it over. Without asking permission, they took the suitcase from the cab, opened it, and found over nine pounds of marijuana. The Supreme

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Court held that although the police had probable cause to believe that the suitcase contained drugs, and although they were justified in stopping the taxi and seizing the suitcase, the suitcase could not be opened and searched without a search warrant because the mobility exigency regard- ing the suitcase had ended. The Sanders decision was a straightforward application of Chadwick: “[W]e hold that the warrant requirement of the Fourth Amendment applies to personal luggage taken from an automobile to the same degree it applies to such luggage in other locations.”

The Sanders rule proved to be unstable and short-lived. The five majority justices includ- ed moderates and liberals (Justices Powell, Brennan, Stewart, White, and Marshall). Justices Blackmun and Rehnquist dissented on the grounds that Chadwick was not correctly decided and that even if it were, where police have probable cause to believe a container in a mobile vehicle holds contraband, it should be subject to the rules of Carroll (1925) and Chambers v. Maroney (1970); that is, the police should be able to open it on the spot without a warrant. The dissent stressed the “untoward costs on the criminal justice system of this country in terms of added delay and uncertainty” caused by the Chadwick–Sanders rule. Quite significant, two concurring justices (Chief Justice Burger and Justice Stevens) argued that the situation in Sanders was not an automobile exigency search, thus clouding an understanding of the scope of a search of con- tainers found in a mobile vehicle, and opening the door to later cases.

Sanders was followed by New York v. Belton (1981), which, as noted, blurred the lines between a search incident to arrest and an automobile search exception to the warrant require- ment. The issue was further confused by the Court’s fractured decision in Robbins v. California (1981), a companion case to Belton. Police stopped a station wagon traveling erratically. An of- ficer smelled marijuana smoke when Robbins emerged, searched him, and found a vial of liq- uid. The officer searched the interior of the car and found marijuana. Police officers then opened the tailgate of the station wagon and raised the cover of a recessed luggage compartment, in which they found two packages wrapped in green opaque plastic. The police unwrapped the packages and discovered a large amount of marijuana in each. The issue was whether the opening of the two packages violated the Fourth Amendment. The Supreme Court, in a plurality opinion by Justice Stewart, held this an unreasonable search and seizure on the au- thority of Chadwick and Sanders: (1) the outward appearance of the package did not undermine Robbins’s expectation of privacy; and (2) there was no constitutional difference between a foot- locker (a “worthy” container) and a plastic bag or package (an “unworthy” container). Concurring Justice Powell and Chief Justice Burger, however, expressed reservations about the decision and suggested a line of reasoning that would soon undermine the Chadwick–Sanders rule, namely that “when the police have probable cause to search an automobile, rather than only to search a particular container that fortuitously is located in it, the exigencies that allow the police to search the entire automobile without a warrant support the warrantless search of every container found therein.” Support for the Chadwick–Sanders approach to the search of containers found in automobiles was waning.

BRIGHT-LINE RULES FOR THE SCOPE OF AUTOMOBILE EXCEPTION SEARCHES The reasoning of Robbins undermined its strength as a precedent. In the following year, Justice Stewart retired and was replaced by the more conservative Justice Sandra Day O’Connor. This allowed reconsid- eration of the doubts raised in Robbins. Indeed, the Court overturned Robbins the next year in United States v. Ross (1982). In Ross and California v. Acevedo (1991), a conservative tide on the Court swept away the Chadwick–Sanders rule in two waves, finally establishing the bright-line rule that allowed police to search automobiles and any closed compartments or containers in them without a search warrant whenever probable cause existed to believe that contraband was in the car generally or in a specific container. Their rules are simple. Ross holds that when police have probable cause to believe that contraband is located in an automobile, they may, under the auto- mobile exception, open any closed container in the car that may logically hold the contraband; this overrules Robbins. Acevedo holds that when an officer has probable cause to believe that a specif- ic container located in a car contains contraband, the officer may, upon lawfully stopping the car and gaining access to its interior, open the container. This overrules Sanders but not Chadwick, be- cause Chadwick was not treated as an automobile exception case.

In Ross, a known reliable informant telephoned a police detective and told him that an in- dividual known as “Bandit” was selling narcotics that he kept in the trunk of a “purplish maroon” Chevrolet Malibu parked at a specific street location. The informant had just observed “Bandit” complete a sale and said that “Bandit” told him that additional narcotics were in the trunk. Police

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officers drove to the street address and saw a maroon Malibu parked there. The officers complet- ed a computer check and discovered that the car was registered to Albert Ross, who fit the infor- mant’s description and who used the alias “Bandit.” The officers drove through the neighbor- hood twice but did not observe anyone matching Ross’s description. They returned five minutes later and saw the maroon Malibu being driven off by a man matching the informant’s descrip- tion. The officers stopped the car and ordered Ross out of the car. Officers observed a bullet on the front seat so they searched the interior of the car and found a pistol in the glove compartment, whereupon they arrested and handcuffed Ross. A detective took Ross’s keys, opened the trunk, and found a closed brown paper bag that was found to contain a number of glassine bags filled with a white powder that was later determined to be heroin. At the station house, the car trunk was searched without a warrant, and a zippered red leather pouch was found and opened. It con- tained $3,200 in cash. Did the officers have constitutional authority to open the paper bag in the trunk of Ross’s automobile?

Ross squarely presented the issue of the scope of an automobile search wherein police had probable cause to believe that contraband was located somewhere in the car or the trunk, but not in a specific bag or container. On the one hand, Carroll allowed police, without a warrant, to rip open the upholstery of a car stopped at the side of the road to get at the contraband. On the other hand, Chadwick ruled that the container can be seized and held (but not opened) until a search warrant was obtained. The Court opted for the Carroll approach. The details of Ross were not the same as the facts of Sanders, where police had probable cause to believe that there was contraband in a specific container located in a moving car, but no probable cause to believe that there was contraband elsewhere in the car. For the time being, Chadwick controlled Sanders-type situations.

The Court advanced several reasons for its decision in Ross. It noted that from the Carroll case in 1925 up to Chadwick in 1977, decisions of lower courts and the Supreme Court never questioned the right of police to open bags of suspected contraband found in lawfully stopped cars. The practical benefits of the Carroll rule would be largely nullified by not allowing police to open closed containers reasonably suspected of housing contraband because illegal materials are usually secured to be kept out of sight. Also, Carroll did not increase the scope of a lawful search, but instead “merely relaxed the requirements for a warrant on grounds of practicability” (Henry v. United States, 1959). Thus a search warrant allowing a search for contraband implies that officers may open containers in the premises that could logically hold the kind of contraband sought.

When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand. (United States v. Ross, 1982)

This rule applies to all containers; the Court upheld the concept of Robbins that a constitutional dis- tinction between “worthy” and “unworthy” containers (e.g., suitcases versus paper bags) was im- proper, as long as the container shielded its contents from plain view. Finally, because a search under the automobile exception was as valid as a search incident to arrest or a search under a war- rant, the suspect loses the expectation of privacy to the same extent as in these cases, which allow the opening of “some containers.” In conclusion, the “scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted [but] by the object of the search and the places in which there is probable cause to believe that it may be found” (United States v. Ross, 1982). Significantly, the majority rejected the holding of Robbins but upheld the specific holding in Sanders, thus allowing police to seize but not search containers where they have probable cause to believe that the specific container holds contraband.

Justice Marshall dissented, joined by Justices Brennan and White, harshly accusing the Court of “repeal[ing] the Fourth Amendment warrant requirement itself” and “utterly disregard[ing] the value of a neutral and detached magistrate.” He reiterated the value of a search warrant and the positive effect of the warrant process on officers who had to write affidavits to justify searches. He noted that in many automobile warrant exception cases there was an actual exigency that justified the police in searching without a warrant. To the contrary, however, Fourth Amendment principles are undermined when the automobile exigency exception is applied to every search of an automobile, even when the suspect is arrested and there is no likelihood that

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another person will get to the car. Ignoring this difference was deemed a sleight of hand by the majority. Fourth Amendment principles required the Court to apply Chadwick to a search of a vehicle when the exigency is over. Finally, the majority’s ruling in Ross was inconsistent with the rule of Sanders. Prophetically, Justice Marshall stated, “This case will have profound implica- tions for the privacy of citizens traveling in automobiles.”

A decade later, the Court dropped the other shoe and, in California v. Acevedo (1991), over- ruled Arkansas v. Sanders (1979). Between 1982 and 1991, the composition of the Court had be- come considerably more conservative, with Justice Rehnquist becoming Chief Justice upon the retirement of Chief Justice Burger, the addition of Justices Antonin Scalia, Anthony Kennedy, and David Souter to the Court, and the retirement of Justices Powell and Brennan. Justice Blackmun, who had dissented in Sanders, now had the opportunity to bury that decision in his majority opin- ion, and he was joined by Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Souter. Justice Scalia concurred with the majority. Justices White, Stevens, and Marshall dissented.

In Acevedo, marijuana lawfully seized by the Drug Enforcement Administration (DEA) in Hawaii was shipped to Officer Coleman of the Santa Ana, California, Police Department. He set up a controlled delivery to one Jamie Daza, who picked up the package from a Federal Express office at 10:30 a.m. Daza, package in hand, was followed to his apartment. At 11:45 a.m., Daza left the apartment and dropped the marijuana container’s wrapping into a trash bin. Officer Coleman left the scene to get a search warrant. At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza’s apartment, stayed for about ten minutes, and emerged carrying a brown paper bag that ap- peared to be full. Other officers observing the scene noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot, placed the bag in the trunk of the car, and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag and found marijuana. The California Court of Appeals suppressed the marijuana on the basis of Chadwick (instead of Ross) be- cause the officers had probable cause to believe that the paper bag contained drugs but lacked prob- able cause to suspect that Acevedo’s car itself otherwise contained contraband.

The reasons given by the majority for allowing a warrantless search of a closed container in an operative vehicle, which had become immobilized and the driver taken into custody, began with an observation on Ross: Where police have probable cause to believe that contraband is lo- cated in a car but have not pinpointed a specific container, “the time and expense of the warrant process would be misdirected if the police could search every cubic inch of an automobile until they discovered a paper sack, at which point the Fourth Amendment required them to take the sack to a magistrate for permission to look inside.” The majority forthrightly noted

that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy and have impeded effective law enforcement. (California v. Acevedo, 1991)

Put this way, it seems clear that the fine line between Chadwick–Sanders (specific probable cause) cases and Carroll–Ross (general probable cause) cases is a thin one and that it would be better for the cases to be decided consistently: Either all containers can be opened by the police, or all containers should be held for a warrant based on a magistrate’s ruling on the police offi- cer’s assessment of probable cause.

Which way is best? The path chosen by the majority was based, first, on its stated assumption that the Ross rule provided “minimal protection for privacy” because in the Chadwick–Sanders sit- uation, the suspicious package is seized and held for a warrant in any event. Next, the Court noted that the clear theoretical distinction is not always clear to a police officer in the field searching a car. Doubts about the locus of probable cause in an automobile search case would have defendants ar- guing that the probable cause existed as to the container and not the entire vehicle to get Chadwick–Sanders protection, causing unneeded litigation. Alternatively, police might try to circumvent the Chadwick–Sanders rule by needlessly searching an entire car to make it seem as if the Ross rule operates when they really had probable cause to believe that the contraband is locat-

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ed in a specific container. Further, the opening of a container is less physically intrusive than a full search of an automobile: “If destroying the interior of an automobile is not unreasonable, we can- not conclude that looking inside a closed container is.” Justice Blackmun’s majority opinion argued that the dichotomy between the two automobile search rules has created confusion in the lower courts and impeded effective law enforcement. “The Chadwick–Sanders rule is the antithesis of a ‘clear and unequivocal’ guideline.” The Supreme Court thus overruled Arkansas v. Sanders (1979) and stated that it had returned all automobile search cases to the basic rule of Carroll.

Justice Stevens’s dissent was unusually blunt and specifically referred to the Court’s rely- ing “on arguments that conservative judges have repeatedly rejected in past cases” (emphasis added). Justices are aware of their and their colleagues’ ideological leanings, but they rarely state this so forthrightly in an opinion. Because a dissent is the justice’s personal statement, it is often more freewheeling or idiosyncratic than a majority opinion, which reflects the judgment of each justice who joins the opinion. By stating that “conservative justices” supported Sanders in the past, Justice Stevens suggested that Acevedo’s majority justices are extremists. His opinion began with an exposition on constitutional policy favoring the use of warrants and reminding that “[t]he Fourth Amendment is a restraint on Executive power.” The burdens of obtaining war- rants “are outweighed by the individual interest in privacy that is protected by advance judicial approval.” He then argued that Ross and Chadwick–Sanders were not inconsistent; Ross applied to the scope of an automobile search, whereas Sanders applied to the search of all closed con- tainers, whether found in automobiles or not. He also noted, as did Justice Marshall dissenting in Ross, that the Chadwick–Sanders rule allows for exigency exceptions.

Justice Stevens challenged three specific points made in Justice Blackmun’s majority opin- ion. First, the majority claimed that the existence of the Chadwick–Sanders rule and the Ross rule was confusing and anomalous. Justice Stevens recited cases that seemed to have no difficul- ty in distinguishing between the two and so disagreed as to the confusion. If there was an anom- aly in the law, it was created by the majority, “[f]or, surely it is anomalous to prohibit a search of a briefcase while the owner is carrying it exposed on a public street yet to permit a search once the owner has placed the briefcase in the locked trunk of his car” (California v. Acevedo, 1991). Justice Stevens thought that making the automobile search rules the same by eliminating the warrant requirement in both was the worse solution because the person had the same expectation of privacy in the container, whether found in or out of a car.

Second, he disagreed that the Chadwick–Sanders rule does not protect any significant in- terest in privacy. “Every citizen clearly has an interest in the privacy of the contents of his or her luggage, briefcase, handbag or any other container that conceals private papers and effects from public scrutiny. . . . Under the Court’s holding today, the privacy interest that protects the con- tents of a suitcase or a briefcase from a warrantless search when it is in public view simply van- ishes when its owner climbs into a taxicab. Unquestionably the rejection of the Sanders line of cases by today’s decision will result in a significant loss of individual privacy.”

The majority’s third argument was that the older rules impede effective law enforcement. Justice Stevens noted that the Court cited no authority for this contention. Even if true, it was, “in any event, an insufficient reason for creating a new exception to the warrant requirement.” From a Due Process Model approach to the Constitution, the convenience of the police is hardly a powerful argument when compared to the expectation of privacy by citizens.

Ross and Acevedo are significant cases because, by creating bright-line rules, they resolved the tangled legal threads on the scope of automobile and sealed container searches. To the dis- senting justices, these cases seriously undermine Fourth Amendment rights and give the police carte blanche to search cars. Each majority opinion, however, mandates that there must be a clear connection between probable cause and the scope of a search. Doctrinally, Ross and Acevedo do not grant police unbridled searching power; for example, police cannot search the locked trunk of a car if its driver is arrested for driving under the influence of alcohol or a controlled sub- stance. However, the real fear is that lenient rules will be applied by the police as license to use their discretion to search, guided only by their common sense and innate sense of decency, and that when police step over the legal line, lower court judges will excuse such behavior. Indeed, as suggested at the beginning of this section, it appears that the totality of automobile search rules provides very little restraint on auto searches.

The Ross rule was extended to automobile passengers in Wyoming v. Houghton.

Read Case and Comments: Wyoming v. Houghton.

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CASE AND COMMENTS

Wyoming v. Houghton

526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)

JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether police officers violate the Fourth Amendment when they

search a passenger’s personal belongings inside an automobile that they have probable cause to believe contains contraband.

I In the early morning hours * * * a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light. There were three passengers in the front seat of the car: David Young (the driver), his girlfriend, and respondent. While questioning Young, the officer noticed a hypo- dermic syringe in Young’s shirt pocket. He left the occupants under the supervision of two backup offi- cers as he went to get gloves from his patrol car. Upon his return, he instructed Young to step out of the car and place the syringe on the hood. The officer then asked Young why he had a syringe; with refresh- ing candor, Young replied that he used it to take drugs. [a]

[The two female passengers were ordered out of the car. Asked for identification, Houghton falsely identified herself as “Sandra James.” In light of Young’s admission, the officer searched the passenger compartment of the car for contraband, and found a purse on the backseat that Houghton claimed as hers. He removed her wallet containing her driver’s license.] When the officer asked her why she had lied about her name, she replied: “In case things went bad.” [The officer then removed a brown pouch and a black wallet-type container. Houghton denied that the pouch was hers] and claimed ignorance of how it came to be there. [It contained] drug paraphernalia and a syringe with 60 cc of methamphetamine. . . . The officer also found fresh needle-track marks on Houghton’s arms. He placed her under arrest.

[The trial court denied Houghton’s motion to suppress evidence obtained from the purse as the fruit of a Fourth Amendment violation. She was convicted of felony possession of methamphetamine. The trial court] held that the officer had probable cause to search the car for contraband and, by exten- sion, any containers therein that could hold such contraband.

[The Wyoming Supreme Court, reversing the conviction, ruled that where an officer has probable cause to believe that contraband is somewhere in a lawfully stopped car, the officer may search all con- tainers in the car except containers that the officer knows or should know are personal effects of a pas- senger who is not suspected of criminal activity, “unless someone had the opportunity to conceal the contraband within the personal effect to avoid detection.”]

II * * *

* * * [I]n the present case [] the police officers had probable cause to believe there were illegal drugs in the car. [b] Carroll v. United States (1925) * * * held that “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant” where probable cause exists.

We have furthermore read the historical evidence to show that the Framers would have regarded as reasonable (if there was probable cause) the warrantless search of containers within an automobile. [c] In Ross we upheld as reasonable the warrantless search of a paper bag and leather pouch found in the trunk of the defendant’s car by officers who had probable cause to believe that the trunk contained drugs. * * *

Ross summarized its holding as follows: “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” (emphasis added). [d] And our later cases describing Ross have characterized it as applying broadly to all containers within a car, without qualification as to ownership. * * *

* * * In sum, neither Ross itself nor the historical evidence it relied upon admits of a distinction among packages or containers based on ownership. When there is probable cause to search for contraband in a car, it is reasonable for police officers—like customs officials in the Founding era—to examine packages and containers without a showing of individualized probable cause for each one. [e] A pas- senger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car.

[e] Ross did not involve passengers and so does not establish direct precedent for a rule that allows an officer to open a passenger’s purse.

[d] This logically includes Houghton’s purse.

[c] As an “originalist,” Justice Scalia justifies Fourth Amendment rulings by “finding” what he thinks the Framers would have ruled in 1791.

[b] Notice that the exigency reasoning of Carroll is not mentioned.

[a] Suppose you are driven to classes by a friend and the car is stopped for speeding. The officer orders your friend out of the car and notices a single marijuana cigarette on the floor. Should the officer be able to search your backpack, which is sitting on the back seat? Should it matter if you claim the backpack as your property?

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Even if the historical evidence, as described by Ross, were thought to be equivocal, we would find that the balancing of the relative interests weighs decidedly in favor of allowing searches of a pas- senger’s belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with re- gard to the property that they transport in cars, which “travel public thoroughfares.” * * *

In this regard—the degree of intrusiveness upon personal privacy and indeed even personal dignity—the two cases the Wyoming Supreme Court found dispositive differ substantially from the package search at issue here. [f] United States v. Di Re (1948), held that probable cause to search a car did not justify a body search of a passenger. And Ybarra v. Illinois, (1979), held that a search warrant for a tavern and its bartender did not permit body searches of all the bar’s patrons. These cases turned on the unique, significantly heightened protection afforded against searches of one’s person. * * *

Whereas the passenger’s privacy expectations are, as we have described, considerably dimin- ished, the governmental interests at stake are substantial. [g] Effective law enforcement would be appre- ciably impaired without the ability to search a passenger’s personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. As in all car-search cases, the “ready mobility” of an automobile creates a risk that the evidence or contraband will be permanent- ly lost while a warrant is obtained. In addition, a car passenger—unlike the unwitting tavern patron in Ybarra—will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. [h] A criminal might be able to hide contra- band in a passenger’s belongings as readily as in other containers in the car,—perhaps even surrepti- tiously, without the passenger’s knowledge or permission. * * *

To be sure, these factors favoring a search will not always be present, but the balancing of interests must be conducted with an eye to the generality of cases. To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger’s belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a “passenger’s property” rule would dramatically reduce the ability to find and seize contraband and evidence of crime. [Litigation would increase over the issue of whether the police officer should have believed a passenger’s claim of ownership.] We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak.

* * * We hold that police officers with probable cause to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search. The judgment of the Wyoming Supreme Court is reversed.

[Justice Breyer concurred.] JUSTICE STEVENS, with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting.

* * * * * * In the only automobile case confronting the search of a passenger defendant—United States v. Di Re, (1948)—[i] the Court held that the exception to the warrant requirement did not apply (address- ing searches of the passenger’s pockets and the space between his shirt and underwear, both of which uncovered counterfeit fuel rations). In Di Re, as here, the information prompting the search directly im- plicated the driver, not the passenger. Today, instead of adhering to the settled distinction between driv- ers and passengers, the Court fashions a new rule that is based on a distinction between property con- tained in clothing worn by a passenger and property contained in a passenger’s briefcase or purse. [j] In cases on both sides of the Court’s newly minted test, the property is in a “container” (whether a pocket or a pouch) located in the vehicle. Moreover, unlike the Court, I think it quite plain that the search of a passenger’s purse or briefcase involves an intrusion on privacy that may be just as serious as was the in- trusion in Di Re.

Even apart from Di Re, the Court’s rights-restrictive approach is not dictated by precedent. [k] For example, in United States v. Ross (1982), we were concerned with the interest of the driver in the in- tegrity of “his automobile,” and we categorically rejected the notion that the scope of a warrantless search of a vehicle might be “defined by the nature of the container in which the contraband is secreted,” . . . “Rather, it is defined by the object of the search and the places in which there is probable cause to be- lieve that it may be found.” We thus disapproved of a possible container-based distinction between a man’s pocket and a woman’s pocketbook. * * *

Nor am I persuaded that the mere spatial association between a passenger and a driver provides an acceptable basis for presuming that they are partners in crime or for ignoring privacy interests in a purse. Whether or not the Fourth Amendment required a warrant to search Houghton’s purse, at the very least the trooper in this case had to have probable cause to believe that her purse contained contraband. The Wyoming Supreme Court concluded that he did not.

[k] Although Ross is not direct precedent for the search of a passenger’s bag, the “object” of the search in Ross was drugs located somewhere in the car, not in a specific container, making the extension of Ross to a passenger’s belongings logical. Justice Stevens, the author of the Ross opinion, did not mention a pocket or pocketbook in that opinion. The Ross case made no reference to Di Re. Does Justice Stevens regret the Ross decision or simply believe that the majority is going too far?

[j] If Di Re is still good law and the search of Houghton’s purse is constitutional, could an officer lawfully open a “fanny pack” worn by a passenger on a belt?

[i] See Di Re in Chapter 4. In that case, an informer was riding in the car and would have seen the driver pass contraband to Di Re.

[h] The real difference between the majority and the dissenters is that the majority imposes a per se, bright-line rule allowing no Ross exception for the belongings of a passenger. The dissent allows a search of a passenger’s bag if an officer has probable cause to believe that it holds contraband. Justice Scalia suggests that such a rule would lessen the number of seizures from automobiles and enmesh police in fine-tuned adjudications of probable cause.

[g] Given the control that the police had over the car in this case (the driver arrested, the car subject to impoundment), do references to “ready mobility” become a smoke screen that allows police to search a car and all its contents simply because it is a car?

[f] Di Re is central to Justice Steven’s dissent. The majority does not overrule Di Re but instead distinguishes it, so that the rule of Di Re still exists, but so too does the rule of Houghton.

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258 Chapter 5

AUTOMOBILE INVENTORY SEARCHES

Statutes and local ordinances provide several reasons to impound vehicles:

• To remove vehicles involved in accidents to permit the flow of traffic and preserve evidence. • To remove damaged vehicles from the highways. • To tow away automobiles that violate parking ordinances. • To remove cars after the driver has been arrested. • To impound automobiles subject to forfeiture.

Of course, a vehicle seized after the driver’s felony arrest may also be impounded and sub- jected to an inventory search. Unlike these numerous administrative reasons for vehicle im- poundment, an inventory of an arrested person’s property at a police lock-up or a jail is legal only if the underlying arrest is legal. (See Chapter 4.) Impounded vehicles have been placed in the unsecured private lot of a local garage (Cady v. Dombrowski, 1973) (rural area; lot seven miles from the police station) or in an impoundment lot operated by a municipality (South Dakota v. Opperman, 1976).

An inventory search of an impounded motor vehicle by law enforcement officers is an administrative search, deemed reasonable under the Fourth Amendment and designed to perform a caretaking function. An inventory is a list of all items found in an impounded car. A vehicle inven- tory search is not a search for evidence that requires a warrant and probable cause. Any contraband disclosed in an inventory is in plain view and hence is admissible in a criminal prosecution.

Consequently, inventory searches do not come under the automobile exigency warrant exception of Carroll v. United States (1925). Neither a judicial warrant, probable cause, nor reasonable suspicion is needed to justify an inventory search. Indeed, an inventory search is the opposite of an exigency search—it must be conducted under standardized rules and regulations so that each inventory search is as much like another as possible. The Supreme Court has ruled that the inventory’s administrative “interests outweighed the individual’s Fourth Amendment in- terests” (Colorado v. Bertine, 1987). In Cady v. Dombrowski (1973), Justice Rehnquist explained that “[l]ocal police officers . . . frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as commu- nity caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

REASONS FOR THE INVENTORY SEARCH The purposes of the inventory of an automobile and the inventory of a person taken into custody are similar. First, the routine listing of the contents of the vehicle protects the owner’s property against theft or careless handling by the police while it remains in police custody. Second, the inventory protects the police against false claims or disputes over lost or stolen property by the owner. Third, it protects the police from potential danger. Additionally, the inventory helps determine whether a vehicle has been stolen (South Dakota v. Opperman, 1976). A prime reason to inventory people taken into custody in police lockups—to prevent them from injuring themselves or others with weapons or dangerous instru- ments—is rarely the case in vehicle inventories. In unusual cases, however, explosives or weapons may be present, which, if stolen from an impounded vehicle, can pose a threat to the public. Also, opening a vehicle containing explosives endangers the lives of officers.10

SCOPE OF AN INVENTORY SEARCH The cases show that an inventory search can be extreme- ly thorough. In South Dakota v. Opperman (1976), the Supreme Court upheld the inventory of

Finally, in my view, the State’s legitimate interest in effective law enforcement does not outweigh the privacy concerns at issue. I am as confident in a police officer’s ability to apply a rule requiring a warrant or individualized probable cause to search belongings that are—as in this case—obviously owned by and in the custody of a passenger as is the Court in a “passenger-confederate[’]s” ability to circumvent the rule. Certainly the ostensible clarity of the Court’s rule is attractive. But that virtue is in- sufficient justification for its adoption. Moreover, a rule requiring a warrant or individualized probable cause to search passenger belongings is every bit as simple as the Court’s rule; it simply protects more privacy.

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