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[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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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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items in the unlocked glove compartment of an automobile. In Michigan v. Thomas (1982), the Court upheld the inventory search of a car’s locked trunk, the space under the front seat and under the dashboard, and the opening of air vents under the dashboard, where a loaded revolver was found. The Court rejected the argument that the search of the air vents was improper because that is not a place where personal items are normally stored. In a per curiam opinion in Florida v. Meyers (1984), the Court upheld, without explanation, a second inventory search of an auto- mobile made eight hours after the car was first searched and impounded. In Illinois v. Lafayette (1983), a police lockup inventory case (see Chapter 4), the police searched a purse-type shoulder bag belonging to a person taken into custody; the Supreme Court held that the police were under no obligation to place it in a secure box or locker, even if this was less intrusive than the inven- tory search. “The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative ‘less intrusive’ means” (Illinois v. Lafayette, 1983).

The issue of the scope of an inventory was revisited in Colorado v. Bertine (1987) to de- termine whether United States v. Chadwick (1977)—holding warrantless searches of closed trunks and suitcases to violate the Fourth Amendment—modified the rule for vehicle inventory searches. Bertine reaffirmed the Opperman decision. A van was impounded after the driver was arrested for driving under the influence of alcohol. The van’s contents were subjected to a de- tailed inspection and inventory in accordance with local police procedures. An officer then opened a closed backpack and found drugs. The Supreme Court found that the search was legal and the drugs admissible in evidence. Chief Justice Rehnquist, for the majority, said that an in- ventory search is made for regulatory reasons and is not a search for criminal evidence. There was no proof that the police had acted in bad faith for the sole purpose of investigation, and the police department’s regulations mandated the opening of closed containers and the listing of their contents. Justice Marshall, dissenting, argued that, in fact, the procedures were not stan- dardized, thereby making the action a criminal search rather than an inventory. He wrote that the search was conducted in a “slipshod” manner that undermined the purposes of an inventory pro- cedure and that the rule of Chadwick should apply to a backpack.

THE NECESSITY OF STANDARDIZED RULES The Supreme Court’s motor vehicle inventory doctrine has evolved from allowing an ad hoc inventory when made for inventory purposes (Cady v. Dombrowski, 1973) to a rule that requires that a police department have in place stan- dardized inventory rules and procedures in order for an inventory search to be constitutional (Florida v. Wells, 1990).

In Colorado v. Bertine (1987), the Court emphasized the importance of written, standard- ized procedures to guide the inventory search. No such procedures apparently existed in Cady v. Dombrowski (1973), which involved the warrantless search of a car for the express purpose of finding the weapon in the private vehicle of a drunk driver who was a police officer. The inven- tory search was upheld because it was clearly performed for administrative purposes and not as a search for criminal evidence. A driver involved in a serious single-car accident was taken into custody one evening for drunk driving in a rural Wisconsin town. He stated that he was a Chicago police officer. The Wisconsin officers believed that Chicago police officers were re- quired by regulation to carry their service revolvers at all times. They were concerned that some- one would steal the weapon from the car, which was placed in an unsecured lot. As a result, they looked into the passenger compartment and glove box but found no service revolver. A tow truck arrived and removed the disabled car to a garage seven miles from the police station, where it was left unguarded. Dombrowski, the driver, was hospitalized after lapsing into a coma. Hours later, after midnight, an officer went to the car to search for Dombrowski’s police weapon. The officer testified that the effort to find the revolver was “standard procedure in our department.” He opened the trunk of Dombrowski’s car and did not find a gun but did find his police uniforms, a Chicago police baton with his name imprinted on it, and fresh blood that was introduced into evidence to convict Dombrowski of first-degree murder. Under these circumstances, the Court treated this search as a valid administrative search and not as a search for criminal evidence. “Where, as here, the trunk of an automobile, which the officer reasonably believed to contain a gun, was vulnerable to intrusion by vandals, we hold that the search was not ‘unreasonable’ with- in the meaning of the Fourth and Fourteenth Amendments” (Cady v. Dombrowski, 1973).

From the somewhat loose procedure upheld in Dombrowski, the Court has moved to a position that, for an inventory search to be constitutionally reasonable, it must be authorized by (1) departmental policy and regulations that establish standard procedures, or (2) established

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routine. The rationale is that one inventory search should be conducted like another and that the procedure should actually produce an inventory—a list. The goal is to limit the discretion of the officer as to the manner in which the inventory is to be conducted. “The individual police officer must not be allowed so much latitude that inventory searches are turned into ‘a purposeful and general means of discovering evidence of crime’” (Florida v. Wells, 1990, citing Colorado v. Bertine, 1987).

Florida v. Wells (1990) is an example of an officer turning a routine inventory into a search for evidence because he overstepped administrative regulations. Wells was stopped for speeding and was arrested for DWI after an officer smelled alcohol on his breath. An inventory search of the car revealed two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. There was no departmental inventory policy. The officer used his discretion to order the suitcase forced open. Large quantities of marijuana were found. The U.S. Supreme Court agreed with the Florida Supreme Court that the evidence should be suppressed as a Fourth Amendment violation because the police department had no inventory policy at all. In the course of his majority opin- ion, Chief Justice Rehnquist said:

A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally per- missible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers’ exte- riors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment. (Florida v. Wells, 1990)

This quote was treated as dictum by four justices who disagreed with it. Thus the question of whether an officer has discretion to open some containers has not been finally resolved. The con- curring justices felt that the officer should not have such discretion—that is, that an inventory policy should order an officer to open all containers or none. Justice Brennan expressed concern that “police may use the excuse of an ‘inventory search’ as a pretext for broad searches of vehi- cles and their contents.”

BORDER AND EXTRATERRITORIAL SEARCHES

Border Searches

Every sovereign nation has a right to control its borders to determine who or what shall come into or exit the country, to collect customs, and to control smuggling. To enforce this plenary power, a country may search entering persons and luggage. As a general rule, the Fourth Amendment does not apply to routine searches and seizures at the border of the United States. As Justice Rehnquist noted:

Since the founding of our Republic, Congress has granted the Executive plenary au- thority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country. . . . This Court has long recognized Congress’ power to police entrants at the border. (United States v. Montoya de Hernandez, 1985)11

United States v. Ramsey (1977) described border searches as “reasonable” simply because a person or item enters into the country from outside, without any regard to the existence of prob- able cause or recourse to a judicial warrant. In practice, any automobile or passenger entering the United States at the Canadian or Mexican border, or any international traveler entering at an in- ternational seaport or airport, may be searched at random by customs officers. Such a practice, of course, would be intolerable and blatantly unconstitutional if it were conducted by law enforce- ment officers within the United States.

In recent decades, as the United States has dealt with mounting problems of drug importa- tion, illegal aliens, and foreign terrorists, issues concerning border searches have proliferated.

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Along with thorny political and law enforcement issues, the constitutional law of border search- es has become complex because the Supreme Court has had to resolve issues arising from varia- tions on the location of the “border” search and specific kinds of intrusions. The cases deal with five types of border searches:

1. At the actual border. 2. At a fixed checkpoint miles from the border. 3. Roving patrols by the Border Patrol up to a hundred miles from the border. 4. Search of international mail. 5. Boarding ships in open waters.

SEARCHES AT THE ACTUAL BORDER For routine searches by customs officers, the general rule is alive and well—any person seeking entry may be stopped and searched without probable cause or reasonable suspicion. In 1999, acting on a hunch, a customs officer stopped an Algerian nation- al at the small Port Angeles, Washington, checkpoint on the U.S.–Canadian border. She discov- ered explosives in the wheel well of the Algerian’s car. As it turned out, the suspect, Ahmed Ressam, was then thought to have ties to Osama bin Laden.12 After the 9/11 attacks, Ressam, who was awaiting sentencing for plotting to bomb the Los Angeles International Airport during the 2000 millennium celebrations, provided federal authorities with new information about people in- volved in al Qaeda–related terrorist cells.13 A search not based on reasonable suspicion that lasts for one or two hours, during which a technician removes the gas tank of an automobile for inspec- tion to find if it contains contraband, is a routine border search for purposes of allowing contra- band discovered by such a search into evidence (U.S. v. Flores-Montano, 2004).

For nonroutine border searches, the Fourth Amendment requires that officials have reason- able suspicion of a crime to justify search and detention. In United States v. Montoya de Hernandez (1985), Rosa Elvira Montoya de Hernandez arrived in Los Angeles on a flight from Bogotá, Colombia. An experienced customs agent thought she was smuggling drugs by having swallowed drug-filled balloons. An airline refused to return her to Colombia because she did not have a proper visa. As a result, she was held without a warrant in a locked room for sixteen hours, during which she “refused all offers of food and drink, and refused to use the toilet facili- ties.” She “exhibited symptoms of discomfort consistent with ‘heroic efforts to resist the usual calls of nature.’” Ultimately, a court order was obtained and a medical examination determined the existence of a foreign substance in her rectal canal. Subsequently, she “passed 88 balloons containing a total of 528 grams of 80 percent pure cocaine hydrochloride.”

The Supreme Court found that the customs officer had reasonable suspicion to believe she was smuggling drugs, and this was sufficient grounds for the court order and the body cavity search. She said she came to Los Angeles to purchase merchandise for her husband’s store. However, because she arrived from a “source city” for drugs, could not speak English, and did not have family or friends in the United States, her explanation was questionable. She had not scheduled appointments with merchandise vendors nor made hotel reservations. Even though she carried $5,000 in cash (mostly $50 bills), she did not have a billfold, nor did she possess checks, waybills, credit cards, or letters of credit, and she did not recall how her ticket was pur- chased. She told an implausible story that she “planned to ride around Los Angeles in taxicabs visiting retail stores such as J.C. Penney and K-Mart in order to buy goods for her husband’s store with the $5,000.” These articulable facts “clearly supported a reasonable suspicion that re- spondent was an alimentary canal smuggler.”

Was the sixteen-hour detention without a warrant and the delay in summoning medical personnel “reasonably related in scope to the circumstances which justified it initially”? The Court rejected a hard-and-fast time limit as to what is reasonable. In this case, Montoya refused to be X-rayed, falsely claiming to be pregnant. The alternatives were to hold her for observation or allow her into the interior of the country.

Justice Brennan dissented, joined by Justice Marshall. He felt that more intrusive border detentions and searches are constitutionally reasonable only if authorized by a judicial officer upon probable cause of criminality. There was no exigency in this case, and a warrant could have been obtained at the outset. The majority replied that “not only is the expectation of privacy less at the border than in the interior, . . . [but] the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.”

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STOPS AND SEARCHES AT FIXED CHECKPOINTS Permanent or fixed checkpoints may be lo- cated up to one hundred miles from the U.S. boundary. The Supreme Court has applied standard Fourth Amendment reasoning to fixed checkpoint searches, employing the concepts of adminis- trative searches, stop and frisk, and arrest. The rule is that no level of evidence sufficiency is needed to stop a vehicle at a fixed checkpoint, but that probable cause is required to search a car that has been stopped.

A well-marked checkpoint at San Clemente, California, warned motorists a mile in ad- vance that they would have to slow down or stop. At the checkpoint, a “point” agent visually screened all northbound traffic. Standing between two lanes of traffic, the agent directed some cars to a secondary inspection area where the driver and passengers were questioned for three to five minutes. If the stop produced proof that the passengers were illegal aliens, they were arrest- ed and returned to Mexico. In United States v. Martinez-Fuerte (1976), a detected illegal alien challenged his conviction on the basis that the stop at the San Clemente checkpoint was without reasonable suspicion, probable cause, or a warrant and therefore violated the Fourth Amendment.

The Court agreed “that checkpoint stops are ‘seizures’ within the meaning of the Fourth Amendment,” but held that they are a reasonable and valid governmental response to a serious problem. A requirement that the stops be based on reasonable suspicion “would be too impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.” The intrusion of these stops “is quite limited” and involves only a brief detention during which a few questions must be answered. “Neither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search.” Unlike a roving patrol, checkpoint stops involve less discretion, and notice of the checkpoint is clearly given to those approaching it; checkpoints do not create the same concern or fear that may be generated during a stop along a road by a patrol car. As a result, no evidentiary requirement is necessary for a fixed checkpoint stop.

The Supreme Court held unanimously in United States v. Ortiz (1975) that the trunk of a car cannot be opened (i.e., searched) during a checkpoint stop unless the officers have probable cause to believe that contraband or illegal aliens are present in the closed area. The Court rea- soned that Fourth Amendment considerations come to the fore when a brief stop at a checkpoint, miles from the border, moves beyond a brief visual inspection and the asking of a few questions, which is a seizure, to a more intrusive search by customs officials. The Court noted that many factors could be taken into account by the Border Patrol officers to determine probable cause, in- cluding “the number of persons in a vehicle, the appearance and behavior of the driver and pas- sengers, their inability to speak English, the responses they give to officers’ questions, the nature of the vehicle, and indications that it may be heavily loaded.” No such factors were apparent in Ortiz, and the Court found the search to be unconstitutional.

STOPS AND SEARCHES BY ROVING CUSTOMS PATROLS Because of the difficulties involved in enforcing customs and immigration rules along our extensive borders, Congress authorized the Border Patrol to conduct roving patrols along the roads and in off-road areas within one hun- dred air miles of the border. Roving patrol stops by the Border Patrol are more intrusive than checkpoint stops, and therefore United States v. Brignoni-Ponce (1975) held that they must be justified with reasonable suspicion. An officer must be “aware of specific articulable facts, to- gether with rational inferences from those facts, that reasonably warrant suspicion” that a vehicle contains illegal aliens. Four years later, the reasoning in Brignoni-Ponce led the Court to extend the same right to drivers throughout the United States in Delaware v. Prouse (1979). Earlier, Almeida-Sanchez v. United States (1973), held that the search of an automobile stopped by Border Patrol officers is a great intrusion on personal privacy mandating the need for probable cause for the search to be constitutional. The majority was concerned that allowing roving patrol searches up to one hundred miles from the border would destroy the Fourth Amendment rights of local residents.

INSPECTIONS AND INVESTIGATION OF INTERNATIONAL MAIL United States v. Ramsey (1977) held that customs officials may inspect incoming mail from outside the United States if they have reasonable suspicion to believe that the mail contains contraband. While examining a sack of international mail from Thailand, a customs inspector noticed eight bulky envelopes bound for four different locations in the Washington, D.C., area. The addresses had apparently

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been typed on the same typewriter. He felt and weighed the envelopes and determined that they contained items other than paper. He opened the envelopes and in each found plastic bags con- taining heroin placed between cardboard. A warrant was then obtained, and the presence of hero- in reconfirmed. The packages were resealed and delivered, which ultimately led to the arrest of the defendant.

The Supreme Court held that the more exacting probable cause standard was not required to justify opening the mail under the Fourth Amendment because (1) the federal statute that guided this action imposes a less stringent requirement than that of probable cause required for the is- suance of warrants, and (2) mail inspection is justified by the greater authority that the government has to make stops at the border. Justice Stevens dissented in Ramsey, joined by Justices Brennan and Marshall. He argued that the 1866 statute that authorized mail stops was intended to apply to large packages and that until 1971, the post office opened mail only in the presence of the addressee or under the authority of a court order supported by probable cause.

CONTROLLED DELIVERIES In Illinois v. Andreas (1983), the Supreme Court ruled that an ini- tial inspection of international shipments that discloses contraband may lead to a “controlled de- livery” to suspects in the interior of the country. Those to whom contraband-laden packages are delivered may be arrested and the packages searched without a warrant when they take posses- sion of the delivered contraband. In Andreas, customs agents found marijuana in a table shipped from India, repackaged it, and had police officers posing as deliverymen convey it. The defen- dant accepted the package and was arrested less than an hour later as he exited his house. The warrantless arrest and search were justified by the initial customs inspection that found contra- band, thus creating a lesser expectation of privacy for Andreas. Resealing the package does not function to revive or restore the lawfully invaded privacy rights. After the first inspection, the contraband was, in effect, in plain view. The lapse of time during which the police could not see the defendant did not reinstate his privacy rights. The Court noted that perfectly controlled deliv- eries are not always possible, and the arrest and search were not unreasonable because there was a “substantial likelihood” that the illegal contents of the container were not changed.

BOARDING AND SEARCHING SEAGOING VESSELS Under federal law in force continuously since 1790, Coast Guard and customs officers may, without a warrant or reasonable articulable suspicion of criminal activity, hail, stop, and board any vessel located in waters that provide ready access to the open sea. The purpose is to inspect the ship’s manifest and other documents. In contrast, automobiles may not be stopped without probable cause or reasonable suspicion of a traffic violation or crime (United States v. Brignoni-Ponce, 1975; Delaware v. Prouse, 1979). This rule for ships was held to be reasonable in United States v. Villamonte-Marquez (1983) be- cause at sea it is impossible to establish the equivalent of border checkpoints or roadblocks. Although checkpoints could be established in ports, smugglers could easily avoid ports by an- choring at obscure points along the shore or by transferring cargo to other vessels. Also, the doc- umentation requirements for vessels are different and more complex than automobile licensure, and information about the ship’s registry and travel manifests cannot be known without boarding to inspect the documents, as the identity of ships involved in smuggling may be falsified.14 The intrusion on a ship’s Fourth Amendment interests by the Coast Guard boarding is limited, consti- tuting “a brief detention while officials come on board, visit public areas of the vessel, and in- spect documents.” In Villamonte-Marquez, a forty-foot sailboat named the Henry Morgan II was packed with tons of marijuana, and the odor gave customs officials plain view authority to search. Justice Brennan, joined by Justice Marshall, dissented in Villamonte-Marquez, arguing that as a practical matter, ships in a channel can be funneled into a checkpoint area that allows the uniform checking of documents of all ships.

Extraterritorial Arrests and Searches

This section examines the extraterritorial reach of the Constitution: whether an illegal arrest in a foreign country deprives a federal court of jurisdiction to try a defendant, whether the Fourth Amendment exclusionary rule applies to searches conducted in other countries, and whether officers are liable for their actions in other countries. After the 9/11 terror attacks, an FBI senior legal advisor noted that, “as a result of the globalization of crime and the emergence of international terrorism, the apprehension of those who violate American criminal laws will

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often have to take place abroad.”15 Even before 9/11, the FBI established permanent offices in dozens of cities overseas to fight organized crime and terrorism.16 The Supreme Court had to decide whether the Constitution “follows the flag”—that is, whether the constitutional limita- tions on government power apply to the activities of U.S. civilian law enforcement personnel in other countries.

KIDNAPPING AND ILLEGAL ARRESTS The Supreme Court has ruled that the illegal arrest or even kidnapping of a defendant within the United States does not divest a court of the jurisdic- tion to try the defendant (Frisbie v. Collins, 1952; see Chapter 4). The Supreme Court extended this rule to cases where a defendant was seized in another country (United States v. Alvarez- Machain, 1992). The Alvarez-Machain case began in 1985 when a Drug Enforcement Administration (DEA) agent, Enrique Camarena Salazar, was kidnapped, tortured, and killed by Mexican drug dealers, an event that strained relations between the United States and Mexico. The United States indicted nineteen Mexicans, including high-level government officials, for Camarena’s torture-killing. Among those indicted was Dr. Humberto Alvarez-Machain, a gyne- cologist practicing in Guadalajara, Mexico.17 In 1990, the DEA hired Mexican bounty hunters to kidnap Dr. Alvarez-Machain and bring him to the United States, where he was arrested and put on trial for Camarena’s murder. “The arrest of Alvarez took place without an extradition request by the United States, without the involvement of the Mexican judiciary or law enforcement, and under protest by Mexico.”18

Did the United States have jurisdiction to try Alvarez-Machain? In a six-to-three decision before the trial, the Supreme Court held that it did. Although an extradition treaty existed be- tween Mexico and the United States, the treaty did not specifically address the question of forcible abductions. Therefore, according to Chief Justice Rehnquist’s majority opinion, the treaty and its procedural history did not prohibit forcible abductions. The treaty, in this view, did not specify the only way that one country could gain custody over a citizen of the other country. The Supreme Court refused to interpret the treaty beyond its terms, even if the actions of the DEA agents were “shocking” and “in violation of general international law principles.” Justice Stevens, dissenting for himself and Justices Blackmun and O’Connor, argued that the majority’s interpretation in effect nullified the extradition treaty, breaking faith with Mexico. Justice Stevens showed that the trial of Dr. Alvarez-Machain violated the rules of customary internation- al law concerning jurisdiction. The world would view the majority’s decision as “monstrous” and the ruling would weaken America’s quest to strengthen the Rule of Law in the international arena by demonstrating that the United States did not live up to international law.

The case ended badly for the United States. Dr. Alvarez-Machain was acquitted of murder and torture in the Los Angeles Federal District Court in December 1992. The trial judge threw out the case, calling the prosecution’s case the “wildest speculation” after discovering that the wrong doctor was kidnapped. Others were convicted for the murder. The incident caused much resentment of the United States in Mexico, and as a result, the Clinton administration promised Mexico that the United States will not engage in any cross-border kidnapping of Mexican citi- zens pending a revised extradition treaty. International opinion and international law scholars roundly criticized the United States.

Dr. Alvarez-Machain sued federal law enforcement officials for $20 million in damages for kidnapping, torture, and false imprisonment. After lengthy litigation, the Ninth Circuit ruled en banc that the doctor had a right to sue the United States under the Alien Tort Claims (ATC) Act and the Federal Tort Claims Act (FTCA).19 The Supreme Court, however, reversed, finding that the FTCA’s exception for acts committed in foreign countries precluded the liability of the gov- ernment and its agents and employees. The Court also held that the ATC Act, which was enacted as a jurisdictional statute in 1789, did not support Alvarez-Machain’s claim, although it would support some claims under international law. The Court cautiously ruled that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATC] was enacted.” It further found that no act of Congress or treaty of international law clearly established a substantive right claimed by Alvarez-Machain (Sosa v. Alvarez-Machain, 2004).

In contemporary terms, the Alvarez-Machain cases have legitimated “rendition to justice,” or “the covert transfer of a suspected criminal from one state to another for the purpose of an investigation or trial”20—in other words, the kidnapping of suspects from foreign countries.

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EXTRATERRITORIAL APPLICATION OF THE FOURTH AMENDMENT The Supreme Court held in United States v. Verdugo-Urquidez (1990) that the Fourth Amendment does not apply when U.S. officers search the premises of an alien in a foreign country. This is true even if the alien is lawfully in federal custody on American soil at the time of the search and the purpose of the search is to obtain evidence for his or her conviction of a federal crime in a U.S. court. Verdugo- Urquidez, a reputed drug dealer, was arrested in Mexico by Mexican officers at the request of American authorities and was charged in federal court for the kidnapping and murder of DEA special agent Enrique Camarena Salazar. A joint Mexican Police–DEA task force carried out a raid of Verdugo-Urquidez’s home in Mexico, and the evidence obtained was used by the DEA to prosecute him. No approval or warrant was sought from U.S. attorneys or magistrates for the raid. The Ninth Circuit Court of Appeals held that a warrant was required for such a search. Although the warrant would have no legal validity in Mexico, it would “define the scope of the search” for American authorities. In rejecting this argument, Chief Justice Rehnquist, writing for the majority, noted that the Fourth Amendment had never been extended to protect aliens on for- eign soil. The fact that Verdugo-Urquidez was in custody on American soil at the time of the raid is a “fortuitous circumstance” that should not dictate the outcome of the case.

Foreign relations activities may have influenced the Verdugo-Urquidez decision. While the case was being considered, the United States invaded Panama to rid that country of its military dictator, Manuel Noriega, who was under federal indictment for drug dealing. Noriega surren- dered to U.S. forces and was transported to the United States for trial.21 Chief Justice Rehnquist noted that the United States had employed its armed forces over two hundred times on foreign soil. “Application of the Fourth Amendment to those circumstances could significantly disrupt the ability of the political branches to respond to foreign situations involving our national inter- est.” The Court clearly thought it would be bad policy to impose the burden or concern on the president and members of Congress “as to what might be reasonable in the way of searches and seizures conducted abroad” before authorizing such military actions.

Justice Brennan, dissenting, noted that in recent years the extraterritorial reach of American criminal law against foreign nationals has been increasing under U.S. drug, antitrust, securities, antiterrorist, and piracy statutes. If the United States can extend its criminal law over- seas, then the Fourth Amendment should “travel with” American agents who go abroad to exer- cise criminal jurisdiction. It is unlikely that the Supreme Court will adopt such a rule in the con- text of what will probably be a very long war on terrorism worldwide.22

REGULATORY SEARCHES AND THE SPECIAL NEEDS DOCTRINE

Origins of the Doctrine and Administrative Searches

In New Jersey v. T.L.O. (1985), the Supreme Court ruled that a public high school student has a Fourth Amendment expectation of privacy in her purse. Nevertheless, the Court ruled that when the circumstances make it reasonable, a public school official can inspect the content of the stu- dent’s purse, looking for materials that violate school rules and that could subject the student to criminal prosecution, without first obtaining a warrant and even without probable cause to be- lieve that the purse contains illegal contraband. T.L.O. set off a chain of rulings that have collec- tively come under a rule known as the special needs doctrine. It is not clear that the Court in- tended to create a doctrine, for the cases that have relied on the reasoning of “special needs beyond the need for normal law enforcement” involve different factual settings and allow search- es based on different evidentiary foundations. In some cases, a government official must have reasonable suspicion of wrongdoing before searching without a warrant, whereas under other factual circumstances there need be no individualized suspicion for a search to take place. What the cases have in common is that in each case the search is conducted by a government officer who is not a police officer engaged in the enforcement of criminal law.

The special needs cases are closely related to administrative searches—a type of search that the Supreme Court brought under the aegis of the Fourth Amendment in 1967. Chapter 3 dis- cussed four 1960s cases that “revolutionized” the Fourth Amendment. The Katz (1967) “expecta- tion of privacy” doctrine replaced the idea that privacy protection depended on property rights and expanded Fourth Amendment protection. Warden v. Hayden (1967) abolished the “mere property” rule, allowing police to seize a defendant’s property for the duration of a prosecution to be used at trial. Terry v. Ohio (1968) modified search and seizure jurisprudence by making it more flexible,

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thus allowing police to stop a person on less evidence than probable cause. Together these cases made Fourth Amendment law more functional and flexible.

The fourth “revolutionary” case, Camara v. Municipal Court (1967), applied the Fourth Amendment not only to police officers investigating felonies, but to entry by administrative offi- cers enforcing municipal safety, health, or occupancy ordinances. Camara overruled an earlier case that held that the Fourth Amendment did not apply at all to these kinds of essentially non- criminal searches (Frank v. Maryland, 1959). The Camara Court recognized that the Fourth Amendment protected against all official intrusions into the privacy of a home, whether by po- lice officers or by other government officers. By extending the Fourth Amendment to adminis- trative searches, Camara allowed householders or business owners to refuse entry to inspectors without search warrants. This created a dilemma. To be effective, inspectors need to enter every home or business to enforce ordinances. But it is often close to impossible for inspectors to ob- tain probable cause to believe that this particular householder or business is in violation of codes. Camara’s warrant requirement threatened to undermine the effectiveness of inspection programs. The Supreme Court got around this sticking point by holding that administrative search warrants could be obtained by proving to a court that the conditions in an area made in- spections necessary. Without quite saying so, the Supreme Court watered down the Fourth Amendment’s particularity requirement by ruling that an “area warrant” was reasonable. In ef- fect, the Supreme Court authorized general warrants, so hated by the Framers of the Constitution.

The Supreme Court applied the administrative search doctrine, with its “area warrants,” to inspections of commercial establishments (See v. City of Seattle, 1967). Indeed, the Court soon held that even area warrants could be dispensed with when inspectors entered a pervasively reg- ulated industry, such as liquor stores or gun dealerships, as long as they did so during normal business hours and did not use force. Dealers who refused inspections could lose their licenses (Colonnade Catering v. United States, 1970; United States v. Biswell, 1972). Under the adminis- trative search rules, unannounced safety inspections of mines without a warrant was permissible under the Mine Safety and Health Act because the law was known to all mine owners and pro- vides a constitutionally adequate substitute for a warrant (Donovan v. Dewey, 1981). The Supreme Court did require area warrants for worker safety inspections under the Occupational Safety and Health Administration (OSHA). It ruled that simply requiring safety and health regu- lations does not transform monitored industries into “pervasively regulated industries” (Marshall v. Barlow’s, Inc., 1978).

The flexible interpretation of the Fourth Amendment established by the administrative search cases, then, made the Court receptive to relying on the Reasonableness Clause of the Fourth Amendment to uphold a variety of warrantless searches under the “special needs” rubric.

Fire Inspections

Determining the cause of a blaze involves an inspection, which is conducted for both administra- tive and criminal investigation purposes, after the fire. Rules for these kinds of searches were es- tablished in Michigan v. Tyler (1978) and Michigan v. Clifford (1984) and provide a mix of ad- ministrative search and criminal search rules:

Rule 1. “A burning building creates an exigency that justifies a warrantless entry by fire officials to fight the blaze.”

Rule 2. “Moreover,. . . once in the building, officials need no warrant to remain for ‘a reasonable time to investigate the cause of a blaze after it has been extinguished.’”

Rule 3. “Where, however, reasonable expectations of privacy remain in the fire-dam- aged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency.”

Rule 4. “If the primary object [of a renewed search] is to determine the cause and ori- gin of a recent fire, an administrative warrant will suffice. To obtain such a warrant, fire officials need show only that a fire of undetermined origin has occurred on the premises, that the scope of the proposed search is reasonable and will not intrude unnecessarily on the fire victim’s privacy, and that the search will be executed at a reasonable and conven- ient time.”

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Rule 5. “If the primary object of the [renewed] search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.”

Rule 6. “If evidence of criminal activity is discovered during the course of a valid ad- ministrative search [or during the initial firefighting], it may be seized under the ‘plain view’ doctrine. . . . This evidence then may be used to establish probable cause to obtain a criminal search warrant.”

In Michigan v. Tyler (1978), a fire broke out in a furniture store at midnight. At 2 a.m., just as the firefighters were “watering down smoldering embers,” fire inspectors arrived to determine the cause, and they seized two plastic containers of flammable liquid. A police detective arrived at 3:30 a.m. and took photographs of the suspected arson. Shortly thereafter, the police investiga- tor abandoned the investigation because the smoke and darkness made careful observation of the crime scene impossible. The fire inspectors returned briefly at 8 a.m. after the fire had been fully extinguished and the building was empty. They left and returned with the police investigator at 9:30 a.m. During this search, they discovered more evidence of arson: pieces of tape on a stair- way with burn marks and pieces of carpet suggesting a fuse trail. The investigators left to obtain tools, returned, and seized the incriminating evidence. Three weeks later, an investigator with the state police arson section returned to take pictures. All the entries were made without consent or warrants.

The Court held that the Fourth Amendment applied to searches following a fire, noting that a magistrate must not be a “rubber stamp” when issuing an administrative search warrant. Instead, the magistrate must ensure that the investigation does not stray beyond reasonable lim- its. The magistrate’s role is to prevent undue harassment of property owners and to keep the in- spection to a minimum.

Applying the search rules to the facts of Tyler, the Court held that the warrantless entry and search immediately after the fire was proper (Rules 1 and 2). The search at 9:30 the next morn- ing was construed by the Court as a continuation of the search begun a few hours before: that search was cut off owing to the smoke and darkness, and “[l]ittle purpose would have been served by their remaining in the building, except to remove any doubt about the legality of the warrantless search and seizure later that same morning.” The photographs taken by the state po- lice investigator, however, were not admissible without a warrant: Too much time had elapsed, and suspicion had accrued.

Michigan v. Clifford involved an early-morning house fire. Firefighters arrived on the scene at 5:40 a.m., extinguished the blaze, and left the scene shortly after 7 a.m. One hour later, a police fire investigator received an order to investigate. Because he was working on other cases, he did not arrive on the scene until 1 p.m. When he arrived, a work crew hired by the owner was boarding up the house and pumping water out of the basement. Clifford was out of town on a vacation and was communicating about the situation through his insurance agent and a neighbor. After the work crew departed, the investigators entered the basement of the house without obtaining consent or an administrative warrant and quickly found evidence of arson (a strong odor of fuel and a crock pot attached to a timer set for 3:45 a.m. that stopped at 4 a.m.). This evidence was seized and marked. The officer proceeded through the remainder of the house, much of which was still intact, and seized other suspicious evidence.

The Supreme Court held this seizure to be a Fourth Amendment violation. The owner, by hiring a crew to board up and pump out his house, clearly maintained an expectation of privacy in his home. Therefore, before entry, the officer should have obtained an administrative search warrant. The time lapse meant that there was no longer an exigent circumstance. Once the officer found incriminating items in the basement, it was necessary to halt the search and take the evi- dence to a magistrate to seek a criminal search warrant. Thus all the evidence was inadmissible.

In sum, fire officials have the right to enter burned premises immediately after a fire in an at- tempt to determine the cause of the fire. Owners or residents, however, do not lose their right to pri- vacy; more extensive, long-term investigations and searches must be accompanied by a warrant.

Early Special Needs Cases: Creating a Doctrine

The special needs doctrine originated in New Jersey v. T.L.O. (1985), although that case did not announce the creation of any doctrine. Rather, in the course of deciding a case that did not fit

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easily into preexisting categories, the Court laid a conceptual foundation that later cases recog- nized as a basis for what came to be called the special needs doctrine, and was later applied to dissimilar kind of cases.

In T.L.O., a teacher discovered a fourteen-year-old public high school freshman smoking in a lavatory in violation of a school rule. She was brought to the principal’s office and ques- tioned by an assistant vice principal. The girl, T.L.O., denied that she had been smoking and claimed that she did not smoke at all. The assistant vice principal then demanded to see her purse, opened the purse, and found a pack of cigarettes. Upon removing the cigarettes, he noticed a pack of cigarette rolling papers. Rolling papers are closely associated with the use of marijua- na. The assistant vice principal proceeded to search the purse thoroughly and found a small amount of marijuana, a pipe, a number of empty plastic bags, a substantial quantity of one-dollar bills, an index card listing students who owed T.L.O. money, and two letters implicating T.L.O. in marijuana dealing. This discovery led to T.L.O.’s adjudication as a delinquent and a one-year probation sentence.

Did the vice principal’s search of the purse violate T.L.O.’s constitutional rights? State ac- tion existed in this case because a public school is established by a local government. Its admin- istrators and teachers exercise legitimate control over students by virtue of their positions. Justice White’s majority opinion first asked whether T.L.O. had a Fourth Amendment privacy in- terest in her purse. The Court’s unanimous decision on this point rested on a close analysis of the actualities of school life in the 1980s:

Students at a minimum must bring to school not only the supplies needed for their studies, but also keys, money, and the necessaries of personal hygiene and grooming. In addition, students may carry on their persons or in purses or wallets such nondis- ruptive yet highly personal items as photographs, letters, and diaries. Finally, stu- dents may have perfectly legitimate reasons to carry with them articles of property needed in connection with extracurricular or recreational activities. In short, school children may find it necessary to carry with them a variety of legitimate, noncontra- band items, and there is no reason to conclude that they have necessarily waived all rights to privacy in such items merely by bringing them onto school grounds. (New Jersey v. T.L.O., 1985)

The state argued that public school students had no reasonable expectation of privacy in school. The Court rejected this argument along with the idea that teachers stood in loco parentis—in the place of parents. Under such a rule school authorities could search the belongings of high school students at will. The old-fashioned idea that parents transfer their personal authority to teachers does not fit the modern reality that schools are in many ways large bureaucracies.

Deciding that public high school students enjoy an expectation of privacy did not answer whether the vice principal’s search violated T.L.O.’s rights, which had to be balanced against schools’ interests in maintaining order by enforcing such school rules as bans on smoking. Two further issues needed answers: Was a warrant necessary? And if not, what was the proper standard of evidence for a lawful warrantless search in a school setting? As to the first, all the justices agreed that the “warrant requirement, in particular, is unsuited to the school environ- ment: requiring a teacher to obtain a warrant before searching a child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the maintenance of the swift and informal disciplinary procedures needed in the schools.”

The Court decided that the search of the purse was constitutionally reasonable as long as the vice principal had reasonable suspicion. Since T.L.O. denied smoking, it was reasonable. . . to resolve the dispute between the teacher and student, for the assistant vice principal to open the purse where cigarettes would be carried. When he saw the rolling papers, he had some sus- picion that T.L.O. might be in possession of marijuana, although a less likely but innocent use would have been to roll tobacco. She may have been carrying the rolling papers for another stu- dent or person. In short, the observation of the rolling papers did not establish probable cause, but did provide the assistant vice principal with reasonable suspicion that T.L.O. had marijuana in her purse. The Court rejected the probable cause standard. After Terry v. Ohio (1968), proba- ble cause it is not an irreducible requirement of a valid search. The decision was an application of the general-reasonableness construction of the Fourth Amendment to the specific facts of this school search.

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Justice Brennan, joined by Justices Marshall and Stevens, dissented. Fourth Amendment warrant exceptions were allowed in past cases only where there was a pressing emergency. The facts in this case did not rise to such a level of seriousness as to cause the constitutional balance to tip in favor of the school’s interests when measured against the student’s right to privacy. The suspected infraction, smoking, was not a crime. “Considerations of the deepest significance for the freedom of our citizens counsel strict adherence to the principle that no search may be con- ducted where the official is not in possession of probable cause” (New Jersey v. T.L.O., 1985, Brennan, J., dissenting). Justice Stevens, also dissenting, stated that the kind of search involved in this case would have been justified if there had been an allegation involving in-school violence.

T.L.O. provides an example of how legal doctrines evolve. In a footnote, Justice White wrote that “the special needs of the school environment require assessment of the legality of such searches against a standard less exacting than that of probable cause.” Justice Blackmun, in a concurring opinion, wrote that “[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause re- quirement impracticable, is a court entitled to substitute its balancing of interests for that of the Framers” (New Jersey v. T.L.O. 1985, concurring opinions, emphasis added). The use of the term special needs was probably not meant to define a new doctrine but simply to explain the basis of the Court’s ruling.

Two years after T.L.O., however, the Supreme Court decided three cases that relied on T.L.O. as precedent and used the “special needs” language as justification for the decisions. These cases established the idea that the ruling of New Jersey v. T.L.O. established a new doc- trine. None of the cases involved public school searches.

O’Connor v. Ortega (1987) was a civil suit in which a supervisor thoroughly searched the office, desk, and filing cabinet of Dr. Ortega, a psychiatrist employed by a state hospital. Ortega was suspected of fraud and was also charged with sexual harassment of female employees and in- appropriate disciplining of a resident. There was state action because the search was ordered by the executive director of a state hospital. The Supreme Court found that Dr. Ortega had a reasonable expectation of privacy in his office, but also stated that an expectation of privacy can be overcome if a governmental interest outweighs an individual’s privacy interests. In her majority opinion jus- tifying the search, Justice O’Connor relied heavily on the incipient rule in Justice Blackmun’s T.L.O. concurrence and quoted his special needs formulation (i.e., “special needs, beyond the nor- mal need for law enforcement”) as a reason for upholding the search of a public employee’s office on less than probable cause. Both Justice O’Connor and Justice Scalia referred to these words, but both omitted the opening words in Justice Blackmun’s sentence in T.L.O., recognizing a “special needs” exception only in “exceptional circumstances.” If T.L.O. had been known as the “excep- tional circumstances” doctrine, perhaps it would have been less frequently employed.

In the next special needs case, the Court combined that doctrine with the pervasively regu- lated industry exception to administrative search warrants. New York v. Burger (1987) held that evidence found in plain view during a police inspection of automobile junk shops could be ad- mitted in a criminal case. A state statute required vehicle dismantlers to maintain records of cars in their junkyards and to allow police or motor vehicle inspectors to examine the records during working hours. Failure to produce records was a misdemeanor. NYPD officers, who were part of a team that conducted five to ten administrative junk shop inspections daily, identified stolen ve- hicles by their VINs during such an inspection.

The Court upheld this search and seizure even though the police had no warrant nor any suspicion of wrongdoing. The Court relied on three reasons: (1) junkyards are a pervasively reg- ulated industry providing a reduced expectation of privacy; (2) warrantless inspections are nec- essary to make the inspection system work and are of limited scope; and (3) the statute is not a pretext for criminal searches without a warrant. As to the last point, the Court said that a state can address a major social problem through both the administrative system and penal sanctions. In this regard, the police officers were treated simply as regulatory agents. This last point is rather weak, as the major “social problem” targeted by the New York law was the dismantling of stolen cars. If this logic were pushed to its extreme, every crime could be declared a social problem, and constitutional protections would be eliminated by treating investigations as inspections.

The last special needs case of 1987, Griffin v. Wisconsin, ruled that a probationer’s home could be entered and searched without a warrant by probation officers as long as there were rea- sonable grounds to believe contraband was present, as was required by state law. Justice Scalia offered this justification: “The search of Griffin’s home satisfied the demands of the Fourth

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Amendment because it was carried out pursuant to a regulation that itself satisfies the Fourth Amendment’s reasonableness requirement under well-established principles.”

A probationer’s home, like anyone else’s, is protected by the Fourth Amendment’s requirement that searches be “reasonable.” Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), . . . we have permitted exceptions when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

In support, Justice Scalia cited New Jersey v. T.L.O., O’Connor v. Ortega, and the administrative search cases. The creation of a new doctrine requires a certain amount of maneuvering. Strictly speaking, neither T.L.O. nor O’Connor v. Ortega applied to a home. Justice Scalia also cited Payton v. New York (1980), which held that an arrest warrant is necessary for entry into a home to make a felony arrest. But instead of treating the search of a probationer’s home as a home search, the Court instead treated it as part of a probation system “like [the] operation of a school, govern- ment office or prison, or . . . supervision of a regulated industry.” A probationer’s punishment in- cludes correctional supervision and only conditional liberty in the community, which diminishes his or her expectation of privacy, even in the home.

These initial special needs cases demonstrate how new legal doctrines are formed. First, a case is decided that does not precisely fit earlier precedent. In its opinion, the Court provides a phrase that helps to explain the decision. Subsequent cases apply the phrase as a basis for deci- sions to cases that are not precisely the same as the first. The phrase is now becoming a doctrine—a legal category that can be used as a framework to decide future cases. This produces the appearance that the system of common law reasoning is more inductive than deductive.23 By organizing the cases under a doctrine, the Court attempts to offer a consistent and satisfactory explanation to police officers and lower court judges who must decide novel cases.

The creation of a doctrine is not simply a neutral process of logic. In the example of the special needs doctrine, the new category allowed a conservative Court to advance a theory that relied on the Reasonableness Clause and the general-reasonableness construction of the Fourth Amendment. (See “The Fourth Amendment’s Structure” Section in Chapter 2.) This made it fea- sible to get around the obstacles of the Warrant Clause and the probable cause requirement to up- hold action by government officers that intruded on Fourth Amendment privacy in different situ- ations. Liberal justices saw the special needs cases as assaults on fundamental rights. As Justice Thurgood Marshall wrote, “In the four years since this Court, in T.L.O., first began recognizing “special needs” exceptions to the Fourth Amendment, the clarity of Fourth Amendment doctrine has been badly distorted, as the Court has eclipsed the probable-cause requirement in a patch- work quilt of settings” (Skinner v. Railway Labor Executives’ Association, 1989).

Drug Testing

The personal and societal costs of alcoholism and drug abuse have made them prime domestic is- sues. Government agencies and private employers, including major league sports franchises, have turned to random or mandatory drug testing as a way to deter drug use and to identify users. The pervasiveness and visibility of drug testing has assured court challenges. Drug testing by private businesses is not a Fourth Amendment concern, just as searches in private schools do not infringe on a constitutional right of privacy; drug testing by government agencies, on the other hand, involves state action and comes under the Fourth Amendment. The Supreme Court has de- cided a number of special needs cases concerning drug testing.

EARLY CASES The first two such cases were decided in favor of government-mandated testing programs. One upheld the mandatory testing of every train crew member after a major rail acci- dent (Skinner v. Railway Labor Executives’ Association, 1989). The other allowed the U.S. Customs Service to test virtually all of its agents for drugs at some point in their careers (National Treasury Employees Union v. Von Raab, 1989).

An initial issue in both cases was whether taking and testing blood and urine samples in- truded on reasonable expectations of privacy. As noted in Chapter 3, under Katz the Court held that urine collection and its testing to ascertain the presence of drugs in a person’s body intrudes

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upon expectations of privacy that society has long recognized as reasonable. “There are few ac- tivities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It is a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as social custom” (Skinner v. Railway Labor Executives’ Association, 1989). The Court noted that this ex- pectation of privacy is not only rooted in the traditional dictates of modesty, but also in the fact that the chemical analysis of urine, like that of blood, can reveal a host of medical facts about a person. Although urine testing in order to detect drugs or alcohol infringes on Fourth Amendment privacy, it is allowed under certain conditions (Skinner v. Railway Labor Executives’ Association, 1989).

The second issue in both cases concerned the standards needed to ascertain the constitu- tionality of drug testing. In each case, the Court applied the special needs doctrine to find these drug-testing programs reasonable under the Fourth Amendment, even though no warrant was re- quired and no level of individualized suspicion was needed to trigger drug testing. Each case was decided on the particular facts of the respective testing program. The linchpin of the holdings in Skinner and Von Raab was that the purposes of these laws were essentially administrative, al- though the discovery of the presence of drugs could lead to criminal prosecution.

In Skinner v. Railway Labor Executives’ Association (1989), the Court upheld a feder- al law that mandated drug testing of all on-site employees after a major train accident, whether the employees worked for a private railroad company or a line run by the government. State action was based on the fact that the program was mandated by law for the public safety. The Court’s decision that mandatory testing was reasonable and constitutional was based on sever- al points: (1) preserving the life and safety of train passengers is of great importance; (2) em- ployees subjected to testing are involved in safety-sensitive tasks; (3) absolute prohibition of alcohol and drug use while on the job is a reasonable requirement; and (4) the usual sanction for on-the-job intoxication is dismissal and not criminal prosecution. The warrant requirement would add little to further the aims of the drug-testing program because the tests were stan- dardized. The fact that blood alcohol levels drop at a constant rate requires swift testing and creates an exigency. Waiting to get a warrant before testing would effectively undermine the usefulness of the testing.

The railway union argued in Skinner that there must be a particularized suspicion against specific railroad employees after an accident before they could be tested. The Court disagreed and concluded that mandatory and comprehensive testing was constitutional for the following reasons:

• Blood and urine testing are relatively limited encroachments on railway employees’ expec- tations of privacy because they are job- and safety-related requirements in a pervasively regulated industry.

• The testing is limited in time, intrusiveness, and ancillary risk. • The state’s interest in testing without individualized suspicion is compelling because it is not

easy for supervisors to spot workers who have used a drug and are still under its influence. • A mandatory testing and dismissal rule has a greater deterrent effect than a weaker non-

mandatory testing policy. • Accident scenes are chaotic, and it may be extremely difficult for supervisors to sort out

who is to be tested and who is not to be tested on the basis of individualized suspicion. • The fact that drug tests are not, in themselves, conclusive proof of impairment does not

render the program unconstitutional, because statistical evidence obtained from manda- tory, across-the-board testing is useful to the railway industry in assessing the causes of accidents.

The balance of interests in National Treasury Employees Union v. Von Raab (1989) dif- fered in several respects. The challenged rule of the U.S. Customs Service required the automatic drug testing of all officers who (1) are directly involved in drug interdiction or drug law enforcement, (2) are required to carry firearms, or (3) handle classified material that would be useful to drug smugglers and could be relinquished through the bribery or blackmail of drug- dependent employees. This testing program was not triggered by a particular negative incident but was required for all who were hired or promoted into sensitive posts. The government interest was not preventing on-the-job impairment but was to ensure that the three categories of customs officers would lead drug-free lives. The theory was that drug-addicted customs agents are targets for bribery and cannot carry out their functions in a positive manner. Like government

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employees in sensitive jobs (i.e., U.S. Mint employees or intelligence officers), customs offi- cers “have a diminished expectation of privacy in respect to the intrusions occasioned by” their positions.

Justice Anthony Kennedy, writing for the majority, held, as he did in Skinner, that neither a warrant nor individualized suspicion would serve a useful purpose in such a program. The ma- jority agreed with the first two rationales presented by the Customs Service, upholding the pro- gram of drug testing for those agents directly involved in drug law enforcement and for those who carried firearms. It could not agree on the reasonableness of the third rationale, preventing the compromise of agents handling classified information, and remanded the case for further fact-finding.

Justice Marshall, joined by Justice Brennan, dissented in both Skinner and Von Raab on the grounds that their special needs analyses were flawed. For them, the goals and methods of the two programs provided no reasonable basis to dispense with the individualized suspicion usual- ly required by the Fourth Amendment before interfering with a person’s constitutional rights. He felt that the need for individualized suspicion would not undermine these programs, and accused the majority of submitting to popular pressure generated by public hysteria over the drug prob- lem and giving away precious rights.

Justices Scalia and Stevens concurred in Skinner but dissented in Von Raab. Justice Scalia’s dissent noted that the factual predicate for the two cases differed. In Skinner, the govern- ment gave evidence to show that a substantial number of train accidents were caused by intoxi- cated railroad employees. In Von Raab, on the other hand, “neither the frequency of use nor con- nection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.” Justice Scalia noted that the government did not supply even one example in which the purported state interest of preventing bribe taking, poor intentions, unsympathetic law enforcement, or the compromise of classified information was endangered by drug use. Some of the government’s arguments were weak. For example, the fact that an agent uses drugs does not necessarily mean the officer would be hostile or indifferent to drug enforcement. Calling the Customs Service’s reasons “fee- ble,” Justice Scalia noted that its commissioner said that the drug-testing program would “set an important example in our country’s struggle with this most serious threat to our national health and security.” In effect, Justice Scalia agreed with Justice Marshall’s point, that the testing of customs officers was an unnecessary sacrifice of constitutional freedoms as a result of pandering to public and political pressure.

DRUG TESTING OF POLITICAL CANDIDATES The Supreme Court drew the line at mandatory drug testing in Chandler v. Miller (1997). A Georgia law required every candidate for statewide office to be drug tested. Two libertarian candidates for statewide offices challenged the law as an infringement of their Fourth Amendment rights. The Supreme Court (8–1), per Justice Ginsburg, agreed. Drug testing under the law was not based on individualized suspicion against the candi- date. Indeed, the program was “relatively noninvasive” because it permitted a candidate to pro- vide a urine specimen in the office of his or her private physician. The results are then given to the candidate, who controls further dissemination of the report. The Court held that requiring certification of drug testing before a person’s name could be placed on the ballot is not a special need beyond the normal needs of law enforcement and was unconstitutional. “Nothing in the record hints that the hazards respondents broadly describe [i.e., drug-addicted candidates] are real and not simply hypothetical for Georgia’s polity. The statute was not enacted . . . in response to any fear or suspicion of drug use by state officials” (Chandler v. Miller, 1997). The testing pro- gram was simply too weak to identify or to deter candidates who violate antidrug laws. In con- trast to other drug-testing programs designed to deal with real dangers of illicit drug use, Justice Ginsburg wrote that the actual purpose of the Georgia law was simply to project an “image” of being tough on drugs. “By requiring candidates for public office to submit to drug testing, Georgia displays its commitment to the struggle against drug abuse. The suspicionless tests, ac- cording to respondents, signify that candidates, if elected, will be fit to serve their constituents free from the influence of illegal drugs” (Chandler v. Miller, 1997). A law that is merely symbolic does not create the special need that allows an individual’s right to privacy to be overridden without a warrant and individualized suspicion. Chief Justice Rehnquist, the lone dissenter, found no infringement on a personal right and, displaying his pro-state philosophy, wrote, “Nothing in the Fourth Amendment or in any other part of the Constitution prevents a State from

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enacting a statute whose principal vice is that it may seem misguided or even silly to the mem- bers of this Court” (Chandler v. Miller, 1997).

DRUG TESTING OF PREGNANT WOMEN The Supreme Court again drew a line against the special needs justification for drug testing pregnant women enrolled in a public prenatal care program in Ferguson v. City of Charleston (2001). Staff members at a Charleston, South Carolina, public hospital in 1988 were concerned that patients receiving prenatal treatment were using cocaine. A policy to identify and test pregnant patients suspected of drug use, and refer those who tested positive to the county substance abuse commission for counseling and treat- ment, did not reduce the incidence of cocaine use among patients.

A new policy developed by a task force in conjunction with the local prosecutor and police drug-screened all women in the program who met one of nine criteria, including “late prenatal care after 24 weeks gestation,” “incomplete prenatal care,” “abruptio placentae,” “IUGR [in- trauterine growth retardation] ‘of no obvious cause,’” “previously known drug or alcohol abuse,” or “unexplained congenital anomalies.” The new policy had a treatment component but also required that information about drug use be forwarded to police authorities for prosecution. The policy also prescribed in detail the precise offenses with which a woman could be charged, depending on the stage of her pregnancy, from simple possession to possession and distribution to a person under the age of eighteen, and unlawful neglect of a child. Although women in the prenatal care program signed consent forms, it was not clear that they were informed of the pos- sibility of prosecution for receiving health care. The Court assumed that the women did not know they were being tested for drugs and that the results were forwarded to law enforcement officials for prosecution.

The Supreme Court decided the case on the issue of whether there were special needs be- yond the normal need for law enforcement that justified the drug testing of these women without a search warrant or any individualized suspicion. In reaching its conclusion that the testing pro- gram was unconstitutional, the Court concluded that the nine criteria used to initiate testing did not amount to probable cause or even reasonable suspicion that a woman had ingested cocaine. Justice Stevens’s majority opinion noted that there was no “evidence in the record indicating that any of the nine search criteria was more apt to be caused by cocaine use than by some other factor, such as malnutrition, illness, or indigency.” The Circuit Court’s decision upholding the testing program rested “on the premise that the policy would be valid even if the tests were con- ducted randomly” (Ferguson v. City of Charleston, 2001).

The key factor that distinguished Ferguson from the earlier drug-testing special needs cases is that in the earlier cases there was some administrative rationale or consequence, such as dismissal from a position or discipline for substance use. In Ferguson, on the other hand, the goal of preventing cocaine use by pregnant women was secondary. “[T]he central and indispensable feature of the policy from its inception was the use of law enforcement to coerce the patients into substance abuse treatment.” However beneficent the policy’s ultimate goal, “the purpose actual- ly served by the [hospital’s] searches ‘is ultimately indistinguishable from the general interest in crime control’” (Ferguson v. City of Charleston, 2001, citing City of Indianapolis v. Edmond, 2000). In fact, Charleston police and prosecutors “were extensively involved in the day-to-day administration of the policy.” This close involvement had the effect of so closely involving hos- pital staff in law enforcement that they had “a special obligation to make sure that the patients are fully informed about their constitutional rights, as standards of knowing waiver require” (Ferguson v. City of Charleston, 2001).

Justice Scalia dissented, joined by Chief Justice Rehnquist and Justice Clarence Thomas. He argued, weakly, that drug testing is not a search, but at most “a ‘derivative use of the product of a past unlawful search,’ which, of course, ‘works no new Fourth Amendment wrong’ and ‘presents a question, not of rights, but of remedies’” (Ferguson v. City of Charleston, 2001, Scalia, J., dissenting). Thus the dissenters were attempting to have the case decided as a matter of the applicability of the exclusionary rule.

Writing in 1999, Lynn Paltrow, program director of the National Advocates for Pregnant Women (NAPW), noted that “[i]n the name of fetal rights, over 200 pregnant women or new moth- ers in approximately twenty states have been arrested. Most of the women arrested have been low- income women of color with untreated drug addictions. Thus, the arrests focus on those people and issues that are hardest to defend in the court of public opinion. Wrongly prejudged as irresponsible and uncaring, the public has expressed little support for them.”24 She viewed these prosecution

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programs as an assault on the reproductive rights of women. Some justification for this is that “[m]any more children are harmed every year from prenatal alcohol use than by cocaine or marijuana. Yet fetal alcohol syndrome, which is characterized by retardation, is not prosecuted under such laws, because alcohol, like other possible detriments to a healthy baby, is legal.”25

Recent studies have shown that the impairment of fetuses from alcohol use is far worse than that resulting from cocaine, and that impairment previously attributed to cocaine use was the result of alcohol ingestion.26

DRUG TESTING AND STRIP SEARCHES OF HIGH SCHOOL STUDENTS In two cases, the Supreme Court has upheld the mandatory testing of all high school students who are involved in athletics and extracurricular activities. In Vernonia School District 47J v. Acton (1995), the Court upheld a policy of mandatory drug testing of all students involved in interscholastic athlet- ic programs. As in Skinner (1989) and Von Raab (1989), the Court upheld intrusions on Fourth Amendment privacy by searches conducted without a warrant or any level of individualized sus- picion. Vernonia went beyond T.L.O., in which the search of a student’s belongings was based on individualized suspicion of wrongdoing and a violation of a school rule. Justice Scalia’s majori- ty opinion gave several reasons for finding that the blanket searches, not based on individual sus- picion, were reasonable:

• Drug use had become evident in the school system and was believed to be widespread. The school district was concerned that student athletes using drugs were prone to injury.

• Urine testing constitutes a Fourth Amendment search. • The actual privacy interests of student athletes, however, are “negligible.” Public schools

have “custodial and tutelary responsibility for children”; students are subject to physical examinations and vaccinations for health purposes; and “school sports are not for the bash- ful,” as the athletes bathe in communal showers.

• The intrusion is limited. The school personnel who collect the urine samples do not direct- ly observe the function; all student athletes are subject to testing; laboratories reveal only the presence of illicit drugs and not other health information; the results are known only by a limited group of school personnel; and results are not turned over to police.

• The state’s interest is very important because drug use is especially harmful to youngsters.

As a result, the district need not base its testing on individualized suspicion. The state is not re- quired to select the “least intrusive” method of search; it can balance the practicalities and select this method. The Court noted that focusing on “troublesome” students for testing could lead to arbitrary testing decisions.

Justice Ginsburg, concurring, noted that the decision does not determine whether routine testing of all public school students in a school or a district, not just those enrolled in inter- scholastic athletics, is allowable. A spirited dissent in Vernonia was written by Justice O’Connor, joined by Justices Stevens and Souter. She focused on the lack of individualized suspicion. The Court’s decision means that millions of student athletes, the “overwhelming majority” of whom have given school officials “no reason whatsoever to suspect they use drugs at school, are open to an intrusive bodily search.” The Framers of the Constitution were concerned with general searches as well as with general warrants. “[M]ass, suspicionless searches” are unreasonable in the criminal law enforcement context, and each “special needs” case that dispenses with individ- ualized suspicion has to advance a “sound reason[] why such a regime would likely be ineffectu- al under the usual circumstances.” Furthermore, her careful review of the facts discounted the costs of not drug testing. The failure to test school athletes simply did not put the lives and safe- ty of many people at risk. Therefore, the district cannot simply decide to discard individualized suspicion. Without specific and compelling reasons to show that eliminating individualized sus- picion is reasonable, the requirement is constitutionally necessary.

We cannot know the deeper reasons why two conservative justices split in this case. I spec- ulate that the Vernonia opinions offer glimpses into the justices’ constitutional norms, their views of political theory, and even their personal backgrounds. Justice O’Connor gave the following reason for her dissent:

Searches based on individualized suspicion also afford potential targets consider- able control over whether they will, in fact, be searched because a person can avoid

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such a search by not acting in an objectively suspicious way. And given that the surest way to avoid acting suspiciously is to avoid the underlying wrongdoing, the costs of such a regime, one would think, are minimal. (Vernonia School District 47J v. Acton, 1995)

This logical, deterrence-based argument connects the Fourth Amendment’s individualized suspi- cion requirement to a political philosophy of individualism and a willingness to give young citi- zens a choice whether to act lawfully or unlawfully before subjecting them to drug searches. The Constitution balances public safety against individual liberty. The Framers have commanded later generations of Americans to take risks in regard to public safety by trusting its citizens to make their own personal decisions to obey the law. Perhaps this strong leaning toward individu- alism can be explained, in part, by Justice O’Connor’s upbringing. She “spent her early years on the Lazy B ranch doing the chores expected of a child growing up on a ranch—driving tractors, fixing fences, branding cattle. Sandra learned to be independent at an early age.”27

In contrast, Justice Scalia’s majority opinion can be seen as reflecting a philosophy of sta- tist regimentation. The Vernonia District formulated a school policy that emphasizes public con- trol over all student athletes, under the pain of penalty, rather than individual self-control. Justice Scalia’s opinion refers positively to the fact that teachers in private schools “stand in loco paren- tis over the children entrusted to them.” This had no direct bearing on a case involving public schools, but it offers insight into his authority-based reasoning in this and later cases. We can speculate that Justice Scalia’s comfort with an authoritarian regime of drug testing is not entire- ly unrelated to the fact that he attended high school at a Roman Catholic military academy.28

Finally, to return to Justice O’Connor’s dissent, she writes: “Blanket searches, because they can involve ‘thousands or millions’ of searches, ‘pose a greater threat to liberty’ than do suspicion- based ones, which ‘affect one person at a time,’” citing her dissent in Illinois v. Krull (1987). As suggested in Chapter 2, this concern by a conservative justice may have been generated by her experience as a state legislator.

In Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls (2002), the Court (5–4) extended the rule of Vernonia v. Acton to high school students en- gaged in extracurricular activities. The basis for the majority ruling in Earls was much weaker than in Vernonia. For example, although there was no evidence of a widespread drug problem in the Tecumseh, Oklahoma, schools, Justice Thomas’s majority opinion suggested that the nation- al problem of teen drug use had grown worse since 1995. As for Tecumseh, the entire basis for the rural school district’s concern was the testimony of two teachers that a student once appeared to be under the influence of drugs and another was overheard talking about drugs, a drug dog de- tected marijuana cigarettes near the school’s parking lot, and that “[p]olice officers once found drugs or drug paraphernalia in a car driven by a Future Farmers of America member” (Earles, 2002).

Justice Ginsburg’s dissent (joined by Justices Stevens, O’Connor, and Souter) pointed out that the facts in Vernonia included two good reasons for its decision: that drug use could be phys- ically harmful for athletes and that athletes were leaders of an aggressive drug cult. Neither rea- son applies to all extracurricular activities. It borders on the comical to be concerned about po- tential injury to band members lifting heavy instruments, Future Farmers guiding livestock, and Future Homemakers of America using sharp knives. It appears, then, that the majority based its special needs determination of allowing drug testing of all students engaged in extracurricular activity on a generalized concern about drug use among teens. Justice Thomas, supporting the majority decision, noted that “the test results are not turned over to any law enforcement author- ity” (Earls, 2002). The majority characterized the urine collection and testing as “minimally in- trusive” and concluded that “the invasion of students’ privacy is not significant” (Earls, 2002).

The dissent noted that although extracurricular activities are nominally voluntary, large numbers of students engage in them. “Participation in such activities is a key component of school life, essential in reality for students applying to college, and, for all participants, a signif- icant contributor to the breadth and quality of the educational experience” (Earls, 2002, Ginsburg, J., dissenting). Ironically, a cited study indicated that students enrolled in extracurric- ular activities are less likely to develop substance abuse problems than their peers. It seems, then, that the majority decision is close to allowing schools to require mandatory drug testing for all students. The dissent viewed the school policy as closer to the symbolic program adopted in Chandler v. Miller (1997).

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Although Earls allows school districts to adopt drug-testing programs, a study of school administrators in one suburban district found that the level of support for drug testing was mixed and that the Earls case itself did not lead to the adoption of random testing in schools without such policies.29 Thus the case may have limited practical effect. In this vein, a large study of 76,000 high school students nationwide found that drug use was no different in schools with or without random drug-testing programs. A newspaper article reporting the study noted that “[m]ost schools have shied away from drug testing.” and that “only 18 percent of the nation’s schools did any kind of screening from 1998 to 2001.”30

The special needs doctrine has garnered scholarly criticism. Robert Dodson, citing eight critical law review articles, notes that “[c]onsiderable doubt exists over whether the Court should have ever adopted the special needs doctrine.”31 As Justice Marshall noted, there is no textual support for this doctrine, which weakens civil liberties, in the Fourth Amendment. Dodson notes that the “Court has never adequately defined what it means by special need.”32 He proposes that the special needs doctrine be modified to ensure that warrantless searches be al- lowed only if the program affects the safety of large numbers of people and only if the courts can identify factors that make the policy truly special. He notes that evidence obtained under the spe- cial needs doctrine has indeed led to a large number of prosecutions, and he recommends that an exclusionary rule apply to these instances to prevent the perversion of the doctrine into another tool of law enforcement.

SCHOOL STRIP SEARCH It is not clear whether criticism of the special needs doctrine as such has caused the Supreme Court to back away from expanding it as a basis of its reasoning. It is in- teresting that in Safford Unified School District v. Redding (2009), the Court held (8–1) that the strip search of 13-year-old middle school student Savana Redding was unconstitutional, based on the precedent of New Jersey v. T. L. O. (1985), without once mentioning the special needs doc- trine. A boy in the school told the principal and assistant principal Kerry Wilson that students were bringing drugs and weapons on campus and a week later gave Wilson a white pill given to him by student Marissa Glines. The pill was ibuprofen 400 mg, available only by prescription. The school had a policy strictly prohibiting the nonmedical possession of any prescription or over-the-counter drug on school grounds, unless permission was granted.

Called out of class, Marissa turned out her pockets and opened her wallet and produced a blue pill (a 200-mg dose of anti-inflammatory drug naproxen), several white ones, and a razor blade. Marissa, who was in possession of Savana’s day planner, said she got the pills from Savana Redding. Wilson did not ask Marissa any follow-up questions to determine whether there was any likelihood that Savana presently had pills, neither asking when Marissa received the pills from Savana nor where Savana might be hiding them. Marissa was subjected to a strip search similar to the one subsequently endured by Savana, which revealed no drugs or pills.

Savana Redding, an honors student, was brought to Wilson’s office where he showed her the day planner, unzipped and open flat on his desk, in which there were several knives, lighters, a per- manent marker, and a cigarette. Savana said she lent her planner to Marissa a few days before and that none of the other items belonged to her. She denied knowing anything about the pills and denied that she was giving pills to fellow students. She agreed to let Wilson and Helen Romero, an admin- istrative assistant, search her belongings. They searched Savana’s backpack and found nothing. “At that point, Wilson instructed Romero to take Savana to the school nurse’s office to search her clothes for pills. Romero and the nurse, Peggy Schwallier, asked Savana to remove her jacket, socks, and shoes, leaving her in stretch pants and a T-shirt (both without pockets), which she was then asked to remove. Finally, Savana was told to pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area to some degree. No pills were found.”

In his last opinion in his Supreme Court career, Justice Souter held that Assistant Principal Wilson had sufficient suspicion to justify a search of Savana’s backpack and outer clothing. “If a student is reasonably suspected of giving out contraband pills, she is reasonably suspected of carrying them on her person and in [her backpack]. If Wilson’s reasonable suspicion of pill distribution were not understood to support searches of outer clothes and backpack, it would not justify any search worth making. And the look into Savana’s bag, in her presence and in the relative privacy of Wilson’s office, was not excessively intrusive, any more than Romero’s subsequent search of her outer clothing.” The reasonable suspicion standard that determines the legality of a school administrator’s search of a student was established in New Jersey v. T.L.O.

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(1985). It is not possible to precisely define the boundaries of this standard: “At the end of the day, however, we have realized that [specified] factors cannot rigidly control, and we have come back to saying that the standards are fluid concepts that take their substantive content from the particular contexts in which they are being assessed” (Safford Unified v. Redding, 2009, internal quotes omitted).

The strip search, however, was not justified in this case. The facts of the search and “both subjective and reasonable societal expectations of personal privacy support the treatment of such a search as categorically distinct, requiring distinct elements of justification on the part of school authorities for going beyond a search of outer clothing and belongings.” Savana had a societally reasonable expectation of privacy, the violation of which she subjectively described as “embar- rassing, frightening, and humiliating.” Studies of student strip searches support her reaction. Unlike changing for gym, which is getting ready for play, “exposing for a search is responding to an accusation reserved for suspected wrongdoers and fairly understood as so degrading that a number of communities have decided that strip searches in schools are never reasonable and have banned them no matter what the facts may be” (Safford Unified v. Redding, 2009).

In some settings a humiliating strip search may be reasonable, but in the school setting, T.L.O. ruled that scope of a permissible search must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.” In this case, “the content of the sus- picion failed to match the degree of intrusion.” Wilson knew beforehand that the pills in question were pain relievers and had no reason to suspect that large amounts of the drugs were being passed around in quantities to do immediate harm. “Nor could Wilson have suspected that Savana was hiding common painkillers in her underwear.” It was common knowledge that stu- dents bringing banned medications to school would likely hide them in clothing or backpacks. “But when the categorically extreme intrusiveness of a search down to the body of an adolescent requires some justification in suspected facts, general background possibilities fall short; a rea- sonable search that extensive calls for suspicion that it will pay off.” There was no evidence that middle school students were hiding pills in their underwear.

The Court in Redding was continuing the policy of T. L. O. that school searches have to be reasonable in scope. A strip search had to be supported by the reasonable suspicion of danger of students hiding contraband in their underwear before a school official “can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions” (Safford Unified v. Redding, 2009).

LAW IN SOCIETY Racial Profiling and Constitutional Rights

Confronting the continuing roles played by race and racism is essential to understanding law en- forcement and constitutional rights. The brutal subjugation of blacks during slavery and the legal segregation and lynching of the Jim Crow era no longer exist. The blatant racism common in America until the 1970s has faded. Nevertheless, more subtle forms of racism continue to influ- ence criminal justice.33 The use of racial profiling in highway stops in an effort to interdict drugs shows these lingering effects. “The essence of racial profiling is a judgment that the targeted group . . . —usually African Americans or Hispanics— . . . is more prone to crime in general, or to a particular type of crime, than other racial or ethnic groups”34 At worst, this stereotyping at- tributes criminality to all minority group members.

Racial profiling is not primarily a problem of racist white cops harassing minorities for the purposes of social and political repression, although this does happen.35 Indeed, a 1999 national study of police vehicle stops and searches found “that officers’ race does not have a statistically significant influence on the use of coercive actions toward drivers.”36 This suggests that “historic discrimination” has been replaced not by color-free attitudes, but by the complex reality of “con- temporary discrimination.”37 Policing now occurs in a social matrix with a substantial black mid- dle class and a substantial black underclass.38 Increased political participation of African Americans has “not led to equality with whites commensurate to that achieved in civil status.”39

Residential segregation remains high.40 And closer to our inquiry, “there has been a steady in- crease in support among white Americans for principles of racial equality, but substantially less

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support for policies intended to implement principles of racial equality.”41 These themes mark race relations in all aspects of American life and are reflected in racial profiling.

Racial Profiling and the “War on Drugs”

Racial and ethnic profiling exists in different contexts and at different places. Profiling for terror- ists at airports may involve different considerations than profiling drivers on interstate highways. Profiles of drug couriers may differ from profiles of tax cheaters. And profiling differs from the use of race to identify a suspect in a particular crime.

The profiling of minorities by police can take place in a number of venues—on the streets, in airports and bus stations, while shopping, and even at home.42 There is good reason, however, to focus on highway stops of minorities by police searching for drugs. For one thing, “traffic stops were the most common reason cited for contact between citizens and police.”43 A national study estimated that 16.8 million drivers were stopped by the police in 2002, and of those, 838,000 resulted in vehicle or driver searches. Studies show that while the proportion of minori- ties who are stopped only slightly exceeds that of white drivers, the search rates are clearly disproportionate: 3.5 percent of white drivers are searched, compared to 10.2 percent of black drivers and 11.4 percent of Hispanic drivers.44 This disproportion alone does not indicate that racial profiling has occurred, however.

The aggressive stopping and searching of drivers are, however, a result of the so-called “war on drugs.” In the 1980s, the Drug Enforcement Administration “initiated a program named Operation Pipeline, a nationwide highway interdiction program that focuses on private motor vehi- cles.” The DEA trained local officers around the country to look for telltale factors that might identi- fy a car carrying drugs. Operation Pipeline was “an ‘intensified enforcement’ program to find illegal drugs by generating a very high volume of legal traffic enforcement stops to screen for criminal activity, which may include drug trafficking.”45 It created the impetus for more aggressive highway stops and searches in an apparently failed attempt to end the problem of drug use and addiction.

A 1999 national statistical study of drivers confirmed the disparities that occur as a conse- quence of these traffic stops. “[C]ontrolling for other relevant extralegal and legal factors, the odds of citation, search, arrest, and use of force for black drivers are 1.5, 1.5, 1.8, and 2.1 times higher, respectively, than for white drivers.”46

An argument can be made that African Americans and Hispanics are stopped and searched at higher rates not because of race but because of other factors not listed in the data. This is coun- tered, first, by the virtually complete police discretion to stop cars:

[T]he police may, if they want, stop just about any car that is driving down the highway. The laws regulating driving are so elaborate, so detailed, and so unrealistic that virtually every driver violates one or another almost all the time—or at least there is probable cause to believe she might be, which is all that’s required to justify a stop. [Studies] confirm what everybody knows: almost all cars on interstate highways speed. But even the rare driver who doesn’t speed may be stopped if an officer has probable cause to believe that he has a burned-out license-plate light, an obscured tag or rear-view mirror, a cracked windshield, misaligned headlights, or is not wearing a seat belt. As one California Highway Patrol Officer put it: “The vehicle code gives me fifteen hundred reasons to pull you over.” 47

Next, the Supreme Court has “enabled” the use of racial profiling through its automobile rulings. A narcotics officer is authorized to stop a car for any traffic violation, no matter how triv- ial, when the real reason is to search for drugs, even if the police used race as the only reason or one of several reasons for the stop.48 Once a motor vehicle is stopped, the police have complete control over whether the driver and passengers should exit, allowing further inspection for drugs.49 Although police are authorized to stop a car only on probable cause or reasonable suspi- cion of a crime or traffic violation, reasonable suspicion can be based on entirely innocent factors.50 Even if an officer has no right to search a stopped automobile, the officer can ask for consent without informing the driver of his or her right to refuse.51 Professor Tracey Maclin con- cludes that a “huge gap exists between the law as theory and the law that gets applied to black males on the street,”52 but it may be the case that the Supreme Court justices who created the per- missive automobile search rules when the “war on drugs” was a major domestic policy under- stood how the rules would be applied.

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The data support the link among lenient Supreme Court rulings, the proactive highway stops for drugs, and open-ended police discretion to create a foundation for suspecting racial pro- filing. Thus the national study of police stops found that

[o]f the drivers who were stopped by police, officers asked 2.9% if they could search their person and/or their vehicle. Of these 2.9% of drivers, nearly all (97.7%) gave consent to be searched. Officers’ requests to search, however, differed significantly by drivers’ race-eth- nicity. Officers asked for consent to search 2.5% of white drivers, compared to 3.9% of black drivers, 4.1% of Hispanic drivers, and 3.9% of drivers of other races. . . . Contraband was discovered on 12.5% of those who gave consent to be searched.53

Further, whites were more likely than minorities to be stopped for speeding (52 percent compared to 41 percent), while minorities (40 percent) were more likely than whites (31 percent) to be stopped for other traffic offenses or for vehicle defects. Yet drivers who were stopped for reasons other than speeding “were significantly more likely to be searched, arrested, and have force used against them. . . . Note, however, that it is unknown if police are inappropriately stopping minori- ties for minor offenses. It is possible that racial and ethnic minorities, who are overrepresented in low-income groups, may be more likely to drive vehicles with equipment violations.”54 The data, to this point, only suggest that minority drivers stopped on the highway are targeted because of their race or ethnicity. This point will be pursued in the following paragraphs.

The Discovery of Racial Profiling

In the 1990s, racial profiling was well known to minorities and was half-jokingly referred to as DWB—driving while black—in the African-American community.55 Racial profiling became a major political issue only after 1998, and the DWB “joke,” along with general knowledge of racial profiling, has since become mainstream.56 Up to that time, the evidence for racial profiling was largely anecdotal. It is indicative of the socioeconomic divide among African Americans that many, if not most, of the anecdotes related to upper- and middle-class blacks being stopped and even harassed.

“It has happened to actors Wesley Snipes, Will Smith, Blair Underwood, and LeVar Burton. It has also happened to football player Marcus Allen, and Olympic athletes Al Joyner and Edwin Moses.”57 The late Johnnie Cochran, lead attorney in the O. J. Simpson murder trial, was stopped by police while driving with his children when he was a Los Angeles assistant dis- trict attorney; police released him quickly when they realized that “they had made what could be a career-ending mistake.”58 Similar stories are documented about African-American and Hispanic judges and lawyers in New Jersey, Michigan, and Texas.59 Prominent black writers ex- perienced racial profiling.60 A black, Los Angeles psychologist took to leaving his work identifi- cation badge on during his drive home from work to show police that he was a professional and not a criminal.61 A former police officer, an African American, was stopped by Long Beach, California, police officers while driving, and during questioning he was pushed through a plate glass window. He was documenting police discrimination, and the incident was filmed by NBC News.62 The stories can be multiplied.63

Professor R. Richard Banks has noted the middle-class slant of the anecdotal evidence of racial profiling:

The media and civil rights groups have featured those victims of racial profiling and police mistreatment who are not only innocent, but also respectable and middle class: the Harvard-educated lawyer driving home from a relative’s funeral who was detained on the highway in the freezing rain, the military officer made to sit handcuffed in the police car while his young son watched, the four young men on their way to a college basketball try- out who were stopped by police officers and nearly fatally wounded, without any evidence of wrongdoing. Commentators have highlighted these sorts of sympathetic plaintiffs.64

These class-based anecdotes may reflect an underlying reality of the “increasing polarization of the black population into middle-class and disadvantaged segments.”65 A national survey by Ronald Weitzer and Steven Tuch based on a Gallup poll found that “better educated African Americans are more likely than the less educated to disapprove of profiling, to view it as a pervasive

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practice, and to say that they have personally experienced it.”66 This may reflect a greater media awareness of these respondents, the greater likelihood that middle-class minorities would be driving in mixed or “white” neighborhoods, and the stereotyping of police who appraise the symbols of suc- cess differently for whites and for minorities.67

The anecdotes provided moving evidence of the harm and resentments inflicted by racial profiling but did not prove that the traffic stops were statistically disproportionate, because other innocent minority drivers had never been stopped in pretextual drug searches.68 In the late 1990s, at least three empirical studies found such evidence (which has since been confirmed by the na- tional surveys referred to earlier). Studies of stops on the New Jersey Turnpike and I–95 in Maryland by state troopers were conducted by Dr. John Lamberth of Temple University, who was given access to official data as a result of lawsuits brought by stopped drivers against the state police agencies. Also, a study of four Ohio cities by law professor David Harris provided statistical evidence to show that blacks and Hispanics were stopped in far greater numbers than whites in comparable situations.69

Lamberth and colleagues developed a baseline of the proportion of drivers by race by di- rect observation of forty-two thousand cars on the New Jersey Turnpike and compared these fig- ures to police records of stops, tickets, and arrests on the same stretch of road. They found that the speeding rates of black and white drivers were similar and that while blacks were 13.5 per- cent of all drivers, they were 35 percent of all drivers stopped and 73.2 percent of all drivers arrested. Lamberth concluded that the odds of these results occurring by chance was “substan- tially less than one in one billion” and that “it would appear that the race of the occupants and/or drivers of the cars is a decisive factor” for stops and arrests.70

Similar findings surfaced in the Maryland I–95 study, where blacks constituted 17.5 per- cent of the population violating the traffic code but more than 72 percent of those stopped and searched. “The disparity between 17.5 percent black and 72 percent stopped includes 34.6 stan- dard deviations. Such statistical significance, Lamberth said, ‘is literally off the charts.’” He con- cluded that “[w]hile no one can know the motivation of each individual trooper in conducting a traffic stop, the statistics presented herein, . . . show without question a racially discriminatory impact on blacks . . . from state police behavior along I–95. The disparities are sufficiently great that taken as a whole, they are consistent and strongly support the assertion that the state police targeted the community of black motorists for stop, detention, and investigation.”71

The Political Reaction to Racial Profiling

In a formal sense, the political campaign against racial profiling has been a success. In 2000, a rally in Washington, D.C., drew tens of thousands of demonstrators, and national news coverage focused on the issue of racial profiling.72 A federal anti-racial-profiling bill passed the House of Representatives but died in the Senate due to law enforcement opposition.73 Despite this setback, by 2004, twenty-nine states had passed laws against racial profiling, although some statutes are limited.74 “As a result of the campaign against racial profiling, law enforcement agencies and government officials now publicly disavow the practice. Numerous jurisdictions have prohibited it, as has the Bush administration for federal law enforcement agencies.”75 By 2004, “[n]ew re- porting requirements and data collection efforts by over four hundred law enforcement agencies across the country—including entire states such as Maryland, Missouri, and Washington—are producing a continuous flow of new evidence on highway police searches”76

Public opinion supports these laws and monitoring efforts. Weitzer and Tuch’s national survey found widespread disapproval of racial profiling, although the results indicated the differ- ent experiences of white and black respondents: 94 percent of African-American respondents disapproved, compared to 84 percent of white respondents. While 82 percent of black respon- dents thought that racial profiling was widespread, 60 percent of white respondents thought so. And as for personal experience, 40 percent of black respondents felt they had been stopped by police because of their race, while only 5 percent of white respondents felt that way.77

Despite the laws, the monitoring requirements, and the broad disapproval of racial profil- ing, the evidence is that minorities continue to be stopped and searched at disproportionate rates as drug enforcement continues.78 What is going on? A major intellectual debate is now under way. Empirical studies and legal analyses by “[e]conomists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges . . . [are] reaching, in many cases, quite opposite conclusions about racial profiling.”79

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Is Racial Profiling a Rational Policy?

An influential 2001 study of racial profiling data by economists concluded that the racial dispro- portions in stops and searches in the Maryland I–95 study did not reflect discrimination against blacks but rather “a bias against white motorists.”80 They came to this conclusion by subjecting “hit rates”—the percentage of searches resulting in drug confiscations—to econometric analysis. The raw data indicated that the rates of finding any drugs on stopped drivers, by their race or eth- nicity, was 34 percent for African Americans, 32 percent for whites, and 11 percent for Hispanic drivers. Furthermore, when looking not at any amount, but at large (“felony”) quantities of drugs, the hit rates are 13 percent for African Americans, 3 percent for whites, and 6 percent for Hispanic drivers.81 The study concluded that “the probabilities of being found with drugs in any amount are equal across African Americans and whites which is consistent with maximizing be- havior by police who are not racially prejudiced.” This shows that police “are trying to maximize the number of successful searches.” On the other hand, the smaller percentage of drug finds among Hispanics “suggests that police may be biased against Hispanics.”82 Other hit rates pro- duce different conclusions. Thus a study of Missouri drivers in which hit rates for drugs were higher for whites than for African Americans or Hispanics concluded that “the data are consis- tent with racial prejudice rather than statistical discrimination.”83

The economists have challenged the idea that the strong racial disproportion of searches of stopped drivers is automatically unconstitutional or improper racial profiling. This challenge has generated an interesting debate that widens our thinking about the purposes and context of racial profiling on the highways. The most complete response has been published by University of Chicago law professor Bernard Harcourt.84

Harcourt moves the debate beyond racial profiling to challenge the value of criminal pro- filing as an effective crime-fighting tool. He argues that several factors must be considered be- fore concluding that racial (or criminal) profiling is worthwhile. First, we must go beyond hit rates as a measure of success and ask whether the profiling reduces the amount of profiled crime. Next, we must consider whether profiling has a ratchet effect, by which the more police focus on minorities the greater the conviction rates of minorities above that of a comparable group of whites. Others call this effect a “racial tax.”85 An additional factor to consider is whether police resources are allocated efficiently. Finally, the costs of racial profiling on innocent motorists and on the minority community must be taken into account.

Underlying much of Harcourt’s analysis is his use of the economics term elasticities to in- dicate that neither offending rates nor law enforcement practices remain static. Over time, the proportion of drivers who carry drugs may change. If it becomes known, for example, that state troopers disproportionately stop and search minorities, over time fewer minorities and more whites will carry drugs on that stretch of road. These elasticities result from the deterrent and in- capacitation effects of law enforcement on the highway. If troopers continue to target minorities because they continue to get “hits,” this will ratchet up the proportion of guilty blacks subjected to stops compared to guilty whites who carry drugs but are not stopped and searched. Not only is this an inefficient enforcement strategy, but it inflicts real harm on the vast majority of innocent minority drivers who are stopped.

If this scenario is the case, the “narrow efficiency” of police officers in targeting minority drivers, who may have higher rates of carrying felony quantities of drugs, may have the ironic ef- fect of increasing the overall amount of drugs being transported on the highway because there are more white drivers. Harcourt establishes this effect by employing econometric analysis. The narrow efficiency of officers (who do not necessarily harbor any malice toward minorities but still believe that racial profiling is good police work) does not answer “the key question of racial profiling, namely whether it is racist. If targeting minority motorists increases long-term offend- ing on the highways or the overall costs to society, then it is in effect racially prejudiced. It may be inadvertent and mistaken, but it is effectively racist because it uses a racial category without any benefit to society.”86

Harcourt notes that the data are inadequate to make firm statements about the comparative offending elasticities of white and minority populations. National self-report survey data suggest that drug use is about the same among Hispanics, whites, and African Americans, although med- ical data imply higher use among minorities.87 Nevertheless, summarizing all of his analysis, he concludes that making conservative assumptions about a lower relative elasticity of offending among minorities and “slightly higher natural total offending rates among minority motorists—it

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is fair to infer that racial profiling on the highways may increase the total number of persons transporting drug contraband on the roads.”88 Also, given the fact that 85 percent of the hits were for trace or personal amounts of drugs, it is fanciful to think that highway interdiction seriously impedes the flow of drugs.

Next, given that police are disproportionately searching minority motorists, it is likely that po- lice are more likely to base stops and searches of whites on neutral and crime-related factors (e.g., luxury vehicle, third-party vehicle, late-model cars with tinted windows, bumper stickers). This in turn produces equal or lower hit rates for minority drivers that may mask higher offending by “comparably situated minority motorists,” undermining “any reliable conclusion as to the narrow efficiency of highway searches.”89 This means that police resources are inefficiently allocated.

Finally, Harcourt concludes that “[r]acial profiling on the highways likely has a signifi- cant ratchet effect on the profiled population . . . that has a significant cost to minority families and communities.”90 In addition, racial profiling imposes real costs on innocent minority drivers who are stopped and has a negative effect on the general public (white and minority) vis-à-vis law enforcement.

What are the implications of Harcourt’s analysis for the law? Under current Fourth Amendment doctrines, as shown earlier, the tactics used by police are constitutional. Of course, simply because a policy is constitutional does not mean that it is wise. Harcourt suggests that the kind of economic analysis he undertakes could be used to challenge (and to defend) racial profil- ing under the Equal Protection Clause, where the use of race is a suspect category that can be overcome if the government can show a compelling state interest, such as reducing crime. No court has yet received such a challenge, but “in the jurisdictions where the new [racial profiling] data reveal disparities, a reviewing court should find the statistical evidence of racial profiling on the highways to be sufficient evidence of unconstitutional police practices.”91

The Costs of Racial Profiling

As noted earlier, the African-American community has become increasing polarized into middle- class and disadvantaged segments. Disadvantaged minorities commit a disproportionate number of serious “street felonies,” resulting in much higher rates of conviction and imprisonment by race. There is a good case to be made that these rates are in part a result of social inequities that are maintained and exacerbated by the continuation of subtle racism. Nevertheless, careful studies of the modern criminal justice system, from the point of investigation and arrest, do not find that racism plays a significant role in enforcing laws against murder, robbery, and the like.92

To the contrary, there is strong evidence that since the mid-1980s, the expanded and inten- sive use of discretionary police power in enforcing ever-more-harsh drug laws has selectively targeted minorities, increasing their proportion in the U.S. penal population. One major conse- quence has been to severely depress the voting power of minorities in their home communities while increasing the electoral base in rural and predominantly white electoral districts where prisons are located but where prisoners do not vote.93

One lesson is that the issue of racial profiling cannot be rationally discussed or dealt with without addressing the larger issue of the “war on drugs” and the overpenalization that character- izes American culture. The other lesson is that the way in which police overgeneralize and see most African Americans as criminals has a real negative effect on the “roughly 97.9 percent of the national population of blacks [who] in any given year will not be arrested for committing a crime”94 Studies by social psychologists Tom Tyler and Cheryl Wakslak show that people believe that racial profiling exists, whether or not they believe they have personally been profiled, and the stronger the belief that racial profiling exists, the lower the support for and belief in the legit- imacy of the police, especially for minorities.95 This coincides with the conclusions of Weitzer and Tuch that “[s]tops by police officers can have lasting, adverse effects on citizens, especially when the stop appears to be motivated by race.”96

In conclusion, racial profiling was a by-product of a misguided national law enforcement strategy that had no impact on illicit drug use or sales. It is supported by lingering racial stereo- types rather than the racial prejudice of individual officers. On its face it seems to be rational to the police, but on closer examination it promotes inefficient and counterproductive law enforce- ment policies. Even so, police may continue to support profiling because occasional large drug busts are seen as good police work and may result in the forfeiture of the cars carrying the drugs. The ratcheting effect imposes extra costs on black and Hispanic underclass communities, while

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racial profiling alienates middle-class minorities from the police. Racial profiling makes a sub- stantial proportion of the citizenry suspicious of police and acts counter to the community polic- ing ethic. The Supreme Court has helped to encourage racial profiling in its rulings. Current statutes are not likely to stop the disproportionate stops of minorities on the highways, but data- collection efforts, along with better analysis, may convince police and policymakers that the costs of the policy outweigh any benefits.

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Summary

Warrantless searches are routine and highly practical for police work. Different types of warrantless search are based on sepa- rate rationales. Every warrantless search must meet the mini- mum constitutional requirement of reasonableness. Three clas- sic exigency exceptions to the warrant requirement, which allow searches, require probable cause to believe that contra- band is present: hot pursuit home entries, the automobile ex- ception, and search incident to arrest. Other exigencies, such as the emergency aid doctrine, allow police entry to deal with the emergency. There is no crime scene investigation exigency to remain in crime scenes; once the place is secure, police must obtain a warrant to remain.

Hot pursuit occurs when a dangerous criminal suspect is chased by police and enters a premises protected by Fourth Amendment privacy. A constitutional hot pursuit exigency entry must be based on probable cause, may be based on hearsay, may occur a few minutes after the suspect has entered the premises, may begin on private property outside the prem- ises, authorizes the police to search the entire premises to find the suspect, and is limited to chases involving suspects of seri- ous crimes.

Warrantless automobile searches are based on the exigency of mobility and on the lesser expectation of privacy accorded to people in vehicles. In addition to the automobile exigency excep- tion, an automobile search involves other warrantless search rules, including consent, plain view, stop and frisk, and pretext searches. Police who arrest a car driver or passenger with proba- ble cause of illegal possession may search the car without a war- rant even if the suspect is out of the car, in secure custody, and the car is immobilized; this rule does not apply and such a search is unconstitutional if the arrest is for a driving offense (Arizona v. Gant, 2009). Any operative motor vehicle is an automobile for purposes of the exception, even if it is also a person’s home. The automobile exception applies even if police have time to obtain a warrant. A car subject to forfeiture may be seized from a public area without warrant. The stop of a car by a police officer seizes the driver and passengers.

A “container”—whether a footlocker or a closed paper bag—is an “effect” and is protected by Fourth Amendment privacy rights. A warrant is required to search a seized closed container, even if police have probable cause to believe it con- tains contraband (unless it is searched incident to arrest). However, when police have probable cause to believe that contraband is located in a automobile, they may, under the

automobile exception, open any closed container located in the car that could logically hold the contraband (United States v. Ross, 1982). When an officer has probable cause to believe that a specific container located in a car contains contraband, the officer may, upon lawfully stopping the car and gaining ac- cess to its interior, open the container (California v. Acevedo, 1991). Ross was extended to passengers: Police officers with probable cause to search a car may inspect passengers’ bags found in the car if they are capable of concealing the object of the search (Wyoming v. Houghton, 1999).

Automobile inventory searches are regulatory searches based on a routine policy to make an inventory of items con- tained in all cars that are impounded by police for traffic or other violations. No probable cause is required. The purposes for making inventories are to protect owners’ property against theft or careless handling by the police, to protect the police against false claims or disputes over lost or stolen property, and to protect the police from potential danger. Inventory searches must be made routinely and under standards and procedures that limit the discretion of the officer. Officers conducting in- ventory searches may look into an unlocked glove compart- ment, a locked trunk, the space under the front seat and under the dashboard, and the opening of air vents under the dash- board as well as the passenger compartment. Any contraband found in the course of an inventory search is seized in plain view and is admissible in evidence.

Border searches are based on national sovereign power to control entry and egress of people and goods; this require no warrant or probable cause. In addition to search- es at the actual border, case law covers roving patrols and fixed checkpoints. Although there is a lesser expectation of privacy at the border, aliens and citizens retain some Fourth Amendment protections. At the border, or its functional equivalent, a person may be detained and searched at ran- dom, but the search must be reasonable. Reasonable suspi- cion must exist before border agents may subject a person to a body cavity search. Border agents operating fixed checkpoints or roving patrols must have probable cause to search parties who have been stopped under reasonable sus- picion by roving patrols or under no suspicion at fixed checkpoints. Reasonable suspicion of contraband is re- quired before international mail can be searched. Because of well-established rules for ships, the complex nature of ships’ documents, and the special difficulties of stopping

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seagoing vessels, government agents may stop and board vessels for document inspections without warrants or rea- sonable suspicion. The Fourth Amendment does not apply to extraterritorial (foreign) arrests or searches.

Searches by government employees infringe Fourth Amendment interests but may be allowed without a warrant or probable cause if they are conducted for “special needs beyond the normal need for law enforcement.” This has been applied to a public school administrator searching the bag of a student who is reasonably suspected of violating a school no-smoking rule; the search of the office of a psychiatrist hired by a state hospital and suspected of violating rules; the warrantless search of the home of a probationer for violating a condition of probation (no reasonable suspicion required); and a police inspection of auto- mobile junk shops without a warrant under a regulatory law.

An administrative search warrant may be forgone for searches of pervasively regulated industries (such as gun and liquor dealers) or safety inspections of mines. OSHA safety in- spections require warrants.

Firefighters who enter a premises to extinguish a fire intrude on an expectation of privacy but may do so because the

fire creates an exigency. They may stay after the fire is extin- guished to investigate the cause of the blaze. If the firefighters leave the site of a fire and the owner retains an expectation of privacy, they must obtain an administrative warrant before returning to determine the cause and origin of a recent fire and must obtain a criminal search warrant if they are suspicious of arson.

Drug testing by government agencies intrudes on a rea- sonable expectation of privacy but may be upheld if special needs beyond the normal need for law enforcement make it reasonable. The Supreme Court has upheld the drug testing of railway workers after a crash without individualized suspicion, the drug testing of Customs Service officers who are in drug enforcement positions or who carry firearms, and the testing of high school varsity athletes. The Court found that the required testing of candidates for state office without particularized sus- picion did not meet the criteria of special needs. Special needs has supported warrantless and suspicionless drug testing of public high school students but not the strip search of middle school children.

Legal Puzzles

HOW HAVE COURTS DECIDED THESE CASES?

Hot Pursuit

5-1. At approximately 2:50 p.m., officer Russo received a dispatched call regarding a theft at a gas station, directly across the street from a shopping plaza where the officer was patrolling. Upon his arrival moments later, Russo observed a crowd of people yelling and pointing down the street. After conducting witness inter- views, Russo was told that Hathcock had entered the gas station and left with unpaid merchandise. Gas station attendants fol- lowed Hathcock outside and confronted him. Hathcock then turned on his car’s ignition and one of the attendants jumped on the hood. Hathcock drove erratically from side to side, dislodg- ing the attendant.

A witness who knew Hathcock directed Russo to Hathcock’s home, only four blocks away. Russo arrived at Hathcock’s house no more than twelve or fifteen minutes after he had first arrived at the gas station. Other officers arrived and they ascertained that Hathcock was in the house. Hathcock refused to exit after a re- quest and the officers decided to enter the house and arrest him.

Was the entry made in hot pursuit of Hathcock?

Held: NO 5-1. Warden v. Hayden (1967) permits the warrantless entry into a

home when there is a risk of danger to the police or the public. In Warden, the risk was apparent based on the suspect’s use of a weapon to commit the crime and the possibility that the weapon would be used to escape and elude the police. Exigencies in- clude (1) danger of flight or escape, (2) danger of harm to police officers or the general public, (3) risk of destruction of evidence, and (4) hot pursuit of a fleeing suspect. A hot pursuit requires some sort of chase.

In this case, exigent circumstances did not exist to permit the officers to enter Hathcock’s house without a warrant and effectuate

an arrest. There was no evidence that Hathcock was armed when he shoplifted the items or that he had access to weapons thereafter. There was no evidence of endangerment to the public. Hathcock possessed no evidence that was at risk of destruction pending the obtaining of an arrest warrant. There was no risk of flight because his house was surrounded.

The District Court found, in this Section 1983 action, that the law of hot pursuit was clearly established so that the offi- cers did not have qualified immunity. Because Hathcock did not suffer any actual damage, he was entitled to a nominal damage award of $1.00. Hathcock v. Cohen, 547 F. Supp.2d 1271 (S.D. Fla. 2008)

Automobile Exception

5-2. Around 1:00 a.m., Rene Gomez was stopped by Officer Burpo for swerving across the center yellow line twice while traveling on a highway. As Officer Burpo asked Gomez for his license and registration, he smelled alcohol and saw two six-pack alcoholic beverage containers inside Gomez’s car. The visible containers were unopened, but one container was missing. Officer Burpo directed Gomez to get out of the vehicle because he wanted to search the car for an open container. Officer Burpo began to search the immediate driver’s area of Gomez’s car. Before Officer Burpo began searching, Gomez clearly stated that he did not consent to the search. As Officer Burpo searched the driver’s immediate area, he noticed the center console lid was ajar and opened it. Inside the console was an open bottle of alcohol. Burpo lifted the bottle and underneath the bottle he found a glass pipe, a small amount of methamphetamine, and a digital scale.

Was Officer Burpo’s search of the car’s interior justified by the automobile/vehicle exception to the warrant requirement

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to allow the introduction of the methamphetamine as evidence? Holding available from instructor.

Auto Inventory

5-3. Lancaster, Pennsylvania, police officers recognized Devon Smith. . . in the passenger seat of an automobile operated by Danny Santiago, as subject to an outstanding arrest warrant. The officers stopped the vehicle, arrested Smith, and arrested Santiago after he got into fight with an officer. Neither Smith nor Santiago claimed to own the car or know the owner and reg- istration papers were not available. There was no one else avail- able at the scene to take possession of the car. The officers be- lieved that they should not leave the vehicle in a bad neighborhood where it might be damaged, vandalized, or stolen. Therefore, one officer impounded the vehicle and drove it to the police station. At the station during a routine warrantless inven- tory search of the vehicle, the other officer found a loaded semi- automatic handgun in its glove department. He then interrupted the search, obtained a search warrant, and resumed the search.

The gun was introduced in a trial against Smith, who was convicted on a charge of a felon in possession of a weapon. Testimony established that the officer conducting the inventory was exercising his discretion when he opted to impound the ve- hicle. The Lancaster PD had no standardized policy regarding the impoundment of vehicles and had established routines but no written policies guiding the conduct of the inventory search.

Was the gun seized in the automobile admissible against Smith as lawfully seized in plain view as the product of a proper inventory search? Holding available from instructor.

Border Search

5-4. In 2004, Sawsaan Tabbaa and four other plaintiffs, U.S. citizens and practicing Muslims, were among an estimated thirteen thousand in- dividuals from across North America who attended the Reviving the Islamic Spirit Conference (“RIS Conference”) at the Skydome in Toronto, Canada. Tabbaa returned to the United States via the Buffalo, New York, border crossing. The conference, which lasted three days, included religious and cultural activities, musical per- formances, a series of prominent Islamic speakers, and communal prayer three times a day. The plaintiffs had no criminal records and the government had no individualized suspicion of their being asso- ciated with terrorism.

The U.S. Bureau of Customs and Border Protection (“CBP”) received intelligence (which was examined by the court) that persons with known terrorist ties would attend the conference. Federal regulations give the CBP authority to en- force immigration and customs laws, secure the border, and prevent the entry of terrorists into the United States. Based on the intelligence, CBP ordered border officials to identify con- ference attendees, contact CBP’s data center to determine if the individuals seeking entry posed a threat, and to question at- tendees about their activities. Fingerprinting and photograph- ing of conference attendees was permitted.

When plaintiffs told CBP agents that they attended the Skydome conference, they were ordered to pull their cars into a separate area. They entered a building that included other RIS Conference attendees. Plaintiffs had to fill out several forms. They were questioned about past travels, relationships to other vehicle occupants, and why they attended and what occurred at the RIS Conference. Plaintiffs were frisked, fingerprinted, and photographed, and their cars were searched. They were not told why they were being fingerprinted and photographed, or why they were detained and inspected so thoroughly. Plaintiffs who questioned the process were told they would not be released until all of the screening measures had been completed. Regarding two of the plaintiffs, CBP officers forcibly kicked the feet open and almost knocked down some plaintiffs in order to effectuate pat-downs. Plaintiffs’ hands were grabbed to take the fingerprints. Each plaintiff was detained and searched for be- tween four and six hours, after which he or she was released into the United States. Within seven days, the government removed plaintiffs’ fingerprints and photographs from its databases, but continued to hold some information about them, including the details of their 2004 detentions.

The plaintiffs seek a declaratory judgment that the searches violated their Fourth Amendment rights and expungement of their records.

Were these border searches nonroutine and thus Fourth Amendment violations? Holding available from instructor.

Fire Inspection

5-5. On a July evening a power line running between a power pole and a metal warehouse, which O’Keefe rented, was arcing and spark- ing. Melting wire from the power line caused molten metal to drip onto the ground, which ignited a grass fire approximately ten feet from the warehouse. Fire officials responded and, after the grass fire was contained, the captain of the fire department arrived. The captain determined that an electrical problem inside the warehouse could have caused the power line to arc and spark and that such an electrical problem could have caused a fire inside. There were no visible signs that the warehouse was on fire, but the captain was un- able to see inside the building because the windows were black- ened. The fire captain also concluded that an electrical problem in- side could again cause the power line to arc and spark, allowing another fire to ignite once electricity was restored to the warehouse. The captain therefore concluded that it was necessary to enter the warehouse to inspect the circuits.

A firefighter entered the warehouse through a second floor window and noticed drying marijuana plants and the odor of marijuana. Once the captain could see marijuana plants he noti- fied the police. Responding police secured the warehouse and obtained and executed a search warrant.

Was the initial entry into the warehouse justified as a fire in- spection exigency, allowing the introduction of the marijuana as evidence to convict O’Keefe? Holding available from instructor.

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Further Reading

Randall Kennedy, Race, Crime, and the Law (New York: Pantheon, 1997).

Leonard W. Levy, A License to Steal: The Forfeiture of Property (Chapel Hill: University of North Carolina Press, 1996).

Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007).

Useful Web Site

Northeastern University Racial Profiling Data Collection Resource Center

http://www.racialprofilinganalysis.neu.edu

Funded by the U.S. Department of Justice, Bureau of Justice Assistance. Designed as a central clearinghouse for information

about current data-collection efforts, legislation and model poli- cies, police–community initiatives, and methodological tools to collect and analyze data.

End Notes

1. Charles Whitebread and Christopher Slobogin, Criminal Procedure: An Analysis of Cases and Concepts, 4th ed. (New York: Foundation Press, 2000), 216–23.

2. David E. Steinberg, “The Drive toward Warrantless Auto Searches: Suggestions from a Back Seat Driver,” Boston University Law Review 80, no. 2 (2000): 545–75.

3. Marvin Zalman, “Judges in Their Own Case: A Lockean Analysis of Drug Asset Forfeiture,” Criminal Justice Review 21, no. 2 (1996): 197–230; and Eric Blumenson and Eva Nilsen, “Policing for Profit: The Drug War’s Hidden Economic Agenda,” University of Chicago Law Review 65 (1998): 35–114.

4. David Harris, “Car Wars: The Fourth Amendment’s Death on the Highway,” George Washington Law Review 66 (1998): 556–91, 560–61.

5. Harris, “Car Wars,” 556. 6. David Moran, “The New Fourth Amendment Vehicle

Doctrine: Stop and Search Any Car at Any Time,” Villanova Law Review 47 (2002): 815–38, 835, 837.

7. Steinberg, “The Drive toward Warrantless Auto Searches,” 549.

8. Harris, “Car Wars,” 566–67. 9. David Moran, “The New Fourth Amendment Vehicle

Doctrine: Stop and Search Any Car at Any Time,” Villanova Law Review 47 (2002): 815–38.

10. Whitebread and Slobogin, Criminal Procedure, 309. 11. See Carroll v. United States (1925); and United States v.

12 200—Foot Reels of Film (1973). 12. Robin Wright, “Bin Laden Tie Seen in Border Arrest,” Los

Angeles Times, December 19, 1999. 13. Timothy Egan, “A Nation Challenged: The Convicted

Terrorist; Man Caught in 2000 Plot Is Helping Investigators,” New York Times, September 27, 2001.

14. See William Langewiesche, “Anarchy at Sea,” The Atlantic, September 2003.

15. Roberto Iraola, “A Primer on Legal Issues Surrounding the Extraterritorial Apprehension of Criminals,” American Journal of Criminal Law 29 (2001): 1–27, 4.

16. “F.B.I. Plans to Open an Office in Poland,” New York Times, July 2, 1994; and David Johnston, “Fighting the Mob; The

F.B.I. Makes Friends in (of All Places) Moscow,” New York Times, July 10, 1994, sec. 4; and David Johnston, “Strength Is Seen in a U.S. Export: Law Enforcement,” New York Times, April 17, 1995.

17. Richard L. Berke, “2 Ex-Mexican Aides Charged in Slaying of U.S. Drug Agent,” New York Times, February 1, 1990.

18. Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003).

19. Alvarez-Machain v. United States, 331 F.3d 604 (9th Cir. 2003). See Michael J. Glennon, “International Kidnapping: State-Sponsored Abduction: A Comment on United States v. Alvarez-Machain,” American Society of International Law Newsletter 86 (October 1992): 746.

20. Beth Henderson, “Note and Comment: From Justice to Torture: The Dramatic Evolution of U.S.-Sponsored Renditions,” Temple International and Comparative Law Journal 20 (2006): 189–218, 189.

21. Andrew Rosenthal, “Noriega Gives Himself up to U.S. Military; Is Flown to Florida to Face Drug Charges,” New York Times, January 4, 1990.

22. See Robert A. Pape, “Dying to Kill Us,” New York Times, September 22, 2003 (arguing on the basis of research that the number of suicide bombings is increasing and is due not to reli- gion but to a secular and specific goal to compel liberal democra- cies to withdraw from territory that terrorists consider their homelands).

23. See Edward Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949, 1961).

24. Lynn M. Paltrow, “Pregnant Drug Users, Fetal Persons, and the Threat to Roe v. Wade,” Albany Law Review 62 (1999): 999–1055, 1002–3.

25. Editorial, “Policing of Pregnancies Won’t Protect Children,” New York Times, August 4, 1996, sec. 4.

26. Linda Carroll, “Alcohol’s Toll on Fetuses: Even Worse Than Thought,” New York Times, November 4, 2002, sec. F.

27. Nancy Maveety, Justice Sandra Day O’Connor: Strategist on the Supreme Court (Lanham, Md.: Rowman and Littlefield, 1996), 12–13. See Sandra Day O’Connor and H. Alan Day, Lazy B: Growing up on a Cattle Ranch in the American Southwest (New York: Random House, 2002).

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28. David A. Schultz and Christopher E. Smith, The Jurisprudential Vision of Justice Antonin Scalia (London: Rowman and Littlefield, 1996), xiii; for a sophisticated analy- sis, see George Kannar, “The Constitutional Catechism of Antonin Scalia,” Yale Law Journal 99 (1990): 1297–1357.

29. Cynthia Kelly Conlon, “Urineschool: A Study of the Impact of the Earls Decisions on High School Random Drug Testing Policies,” Journal of Law and Education 32 (2003): 297–319.

30. Greg Winter, “Study Finds No Sign That Testing Deters Students’ Drug Use,” New York Times, May 17, 2003.

31. Robert D. Dodson, “Ten Years of Randomized Jurisprudence: Amending the Special Needs Doctrine,” South Carolina Law Review 51 (2000): 258–89, 278.

32. Dodson, “Ten Years of Randomized Jurisprudence,” 284. 33. Randall Kennedy, Race, Crime, and the Law (New York:

Pantheon, 1997); Michael Tonry, Malign Neglect-Race, Crime, and Punishment in America (New York: Oxford University Press, 1995); and David C. Anderson, Crime and the Politics of Hysteria: How the Willie Horton Story Changed American Justice (New York: Times Books/Random House, 1995).

34. Samuel R. Gross and Katherine Y. Barnes, “Road Work: Racial Profiling and Drug Interdiction on the Highway,” Michigan Law Review 101 (2002): 651–754, 654–55.

35. An Ohio lawsuit uncovered a group of Reynoldsburg, Ohio, police officers who identified themselves as a “SNAT” (“spe- cial nigger arrest team”). The courts found that this was, at best, “a crude and offensive joke” but, at worst, that these offi- cers “intentionally discriminated against blacks” (Murphy v. Reynoldsburg, 1991 WL 150938 [Ohio Court App. 10th App. Dist. Franklin Co. (1991)]) “in an attempt to keep blacks out of the city” (Murphy v. Reynoldsburg, 65 Ohio St. 3d 356, 604 N.E.2d 138 [1992]).

36. Robin Shepard Engel and Jennifer M. Calnon, “Examining the Influence of Drivers’ Characteristics during Traffic Stops with Police: Results from a National Survey,” Justice Quarterly 21, no. 1 (2004): 49–90, 78–79.

37. W. J. Wilson, The Truly Disadvantaged (Chicago: University of Chicago Press, 1987).

38. G. J. Jaynes and R. M. Williams Jr., A Common Destiny: Blacks and American Society (Washington, D.C.: National Academy Press, 1989), 6, 274.

39. Jaynes and Williams, A Common Destiny, 258. 40. Jaynes and Williams, A Common Destiny, 88–91. 41. Jaynes and Williams, A Common Destiny, 117 (emphasis

added). 42. Amnesty International, Threat and Humiliation: Racial

Profiling, Domestic Security, and Human Rights in the United States (New York: Amnesty International, 2004), 3–12.

43. Michael R. Smith and Geoffrey P. Alpert, “Searching for Direction: Courts, Social Science, and the Adjudication of Racial Profiling Claims,” Justice Quarterly 19, no. 4 (2002): 673–703, 674, n. 1 (quotations omitted).

44. Erica L. Smith and Matthew R. Durose, Special Report: Characteristics of Drivers Stopped by Police, 2002 (Washington, D.C.: Bureau of Justice Statistics, NCJ 211471, June 2006).

45. Gross and Barnes, “Road Work,” 671 (internal quotations omitted); and Engel and Calnon, “Drivers’ Characteristics,” 50–53.

46. Engel and Calnon, “Drivers’ Characteristics,” 77 (emphasis added).

47. Gross and Barnes, “Road Work,” 670–71 (footnotes omitted). 48. Whren v. United States (1996).

49. Pennsylvania v. Mimms (1977); and Maryland v. Wilson (1997). 50. Delaware v. Prouse (1979); United States v. Arvizu (2002). 51. Schneckloth v. Bustamonte (1973); and Ohio v. Robinette

(1996). 52. T. Maclin, “‘Black and Blue Encounters’—Some Preliminary

Thoughts about Fourth Amendment Seizures: Should Race Matter?” Valparaiso University Law Review 26 (1991): 243–79, 252.

53. Engel and Calnon, “Drivers’ Characteristics,” 76. 54. Engel and Calnon, “Drivers’ Characteristics,” 70, 80. 55. Henry Louis Gates Jr., “Thirteen Ways of Looking at a Black

Man,” New Yorker, October 23, 1995, cited in Kennedy, Race, Crime, and the Law, 151–52.

56. John L. Burris (with Catherine Whitney), Blue vs. Black: Let’s End the Conflict between Cops and Minorities (New York: St. Martin’s Press, 1999); and Kenneth Meeks, Driving while Black: Highways, Shopping Malls, Taxicabs, Sidewalks (New York: Broadway, 2000).

57. David A. Harris, “The Stories, the Statistics, and the Law: Why ‘Driving while Black’ Matters,” Minnesota Law Review 84 (1999): 265–326.

58. K. B. Noble, “A Showman in the Courtroom, for Whom Race Is a Defining Issue,” New York Times, January 20, 1995.

59. Judge Claude Coleman, cited in Tonry, Malign Neglect, 50–51; Judge Dennis Archer, who later became a Michigan Supreme Court justice, mayor of Detroit, and president of both the Michigan and the American Bar Associations, and his son, attorney Dennis Archer Jr.: Robyn Meredith, “Near Detroit, a Familiar Sting in Being a Black Driver,” New York Times, July 16, 1999; and federal judge Filemon B. Vela: Jim Yardley, “Some Texans Say Border Patrol Singles Out Too Many Blameless Hispanics,” New York Times, January 26, 2000.

60. Tonry, Malign Neglect, 51, describing the experiences of Brent Staples, a New York Times editorial board writer, and philoso- pher Cornel West.

61. A. Wallace and S. Chavez, “Understanding the Riots Six Months Later: Separate Lives/Dealing with Race in L.A.; Can We All Get Along?” Los Angeles Times, November 16, 1992.

62. Maclin, “‘Black and Blue Encounters,’” 243–79, 254. 63. Amnesty International, Threat and Humiliation; and David

Rudovsky, “Law Enforcement by Stereotypes and Serendipity: Racial Profiling and Stops and Searches without Cause,” University of Pennsylvania Journal of Constitutional Law 3 (2001): 296–366, 296–98.

64. R. Richard Banks, “Beyond Profiling: Race, Policing, and the Drug War,” Stanford Law Review 56 (2003): 571–603, 576–7 (footnotes omitted).

65. Ronald Weitzer and Steven A. Tuch, “Perceptions of Racial Profiling: Race, Class, and Personal Experience,” Criminology 40, no. 2 (2002): 435–56, 437.

66. Weitzer and Tuch, “Perceptions of Racial Profiling,” 450. 67. Weitzer and Tuch, “Perceptions of Racial Profiling,” 450–51. 68. Bill Johnson, “The Answer to Driving while Black Is Not

More Racial Profiling,” Detroit News, July 30, 1999. 69. Information about the three studies is taken from Harris, “The

Stories.” 70. Harris, “The Stories,” 279. 71. Harris, “The Stories,” 281. 72. Cindy Loose and Chris L. Jenkins, “Rallying to ‘Redeem the

Dream’: Rights’ Leaders Target Racial Profiling,” Washington Post, August 27, 2000.

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73. Harris, “The Stories,” 319–21. 74. Amnesty International, Threat and Humiliation, vii, 28–29. 75. R. Richard Banks, “Beyond Profiling: Race, Policing, and the

Drug War,” Stanford Law Review 56 (2003): 571–603, 574–5 (footnotes omitted).

76. Bernard E. Harcourt, “Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally,” University of Chicago Law Review 71 (2004): 1275–1381, 1275 (footnote omitted).

77. Weitzer and Tuch, “Perceptions of Racial Profiling,” 441–42. 78. Gross and Barnes, “Road Work,” 661. 79. Harcourt, “Rethinking Racial Profiling,” 1276. 80. John Knowles, Nicola Persico, and Petra Todd, “Racial Bias in

Motor Vehicle Searches: Theory and Evidence,” Journal of Political Economy 109 (2001): 203–29, 2007.

81. Knowles, Persico, and Todd, “Racial Bias in Motor Vehicle Searches,” 222.

82. Knowles, Persico, and Todd, “Racial Bias in Motor Vehicle Searches,” 228.

83. Harcourt, “Rethinking Racial Profiling,” 1293, citing Rubén Hernández-Murillo and John Knowles, “Racial Profiling or Racist Policing? Testing in Aggregated Data” (working paper, April 18, 2003).

84. Other responses include Gross and Barnes, “Road Work”; Banks, “Beyond Racial Profiling”; and William J. Stuntz, “Local Policing after the Terror,” Yale Law Journal 111 (2002): 2137–94. Stuntz would allow the limited use of group profiling and seek to control it. Gross and Barnes and Banks conclude that racial profiling, even if the product of police who are not racially prejudiced and who seek to interdict drugs, has

virtually no effect on stopping the flow of drugs and inflicts harm on innocent drivers. Gross and Barnes, while not claim- ing that the data in the Maryland I–95 study are entirely flawed, show that police have manipulated highway stop data to “improve” their success rates.

85. Kennedy, Race, Crime, and the Law, 159; and Banks, “Beyond Racial Profiling,” 589.

86. Harcourt, “Rethinking Racial Profiling,” 1306–7. 87. Harcourt, “Rethinking Racial Profiling,” 1361–71. 88. Harcourt, “Rethinking Racial Profiling,” 1371 (emphasis

added). 89. Harcourt, “Rethinking Racial Profiling,” 1372. 90. Harcourt, “Rethinking Racial Profiling,” 1372–73. 91. Harcourt, “Rethinking Racial Profiling,” 1354. 92. Tonry, Malign Neglect, 65–68; and Alfred Blumstein, “On the

Racial Disproportionality of United States’ Prison Populations,” Journal of Criminal Law and Criminology 73 (1982): 1259–81.

93. Tonry, Malign Neglect, 10–12; Anderson, Crime and the Politics of Hysteria; and Jason Belmont Conn, “Note: Felon Disenfranchisement Laws: Partisan Politics in the Legislatures,” Michigan Journal of Race and Law 10 (2005): 495–539.

94. “Developments in the Law: Race and the Criminal Process,” Harvard Law Review 101 (1988): 1472–1641, 1508.

95. Tom R. Tyler and Cheryl J. Wakslak, “Profiling and Police Legitimacy: Procedural Justice, Attributions of Motive, and Acceptance of Police Authority,” Criminology 42, no. 2 (2004): 253–81.

96. Weitzer and Tuch, “Perceptions of Racial Profiling,” 452.

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JUSTICES OF THE SUPREME COURT

Thoughtful Conservatives: Clark, Harlan II, Stewart, and White

Justices Tom Clark, John Marshall Harlan II, Potter Stewart, and Byron White were appointed by presidents with differing political philosophies (Harry S. Truman, Dwight D. Eisenhower, and John F. Kennedy). Nevertheless, these four justices exhibited several similarities. On criminal pro- cedure issues, all were conservative in that they generally opposed incorporation and tended to find for the prosecution. On the other hand, all were receptive to the civil rights claims of African Americans. Clark, as a key architect of President Truman’s anticommunist loyalty oath pro- gram, was fiercely opposed to easing the application of these rules. All of these justices were thorough and thoughtful in their review of cases, and each had at times ruled in support of criminal defendants in significant cases.

Among these justices, John Harlan ranks as the most acute legal thinker. Known as a lawyer’s justice, he carefully crafted opinions without ambiguity to be applied by practicing lawyers and trial judges. Potter Stewart was the most centrist in criminal procedure matters. He dissented in Miranda v. Arizona (1966), but his opinions in such cases as Chimel v. California (1969) (reach-and-lunge rule) and Coolidge v. New Hampshire (1971) (warrant-preference interpretation) were quite liberal. His opinion in Katz v. United States (1967) was the keystone in modernizing Fourth Amendment law.

Justice White may have been a surprise; nominated by a liberal president, he quickly joined the conservative wing of the Court on many is- sues, especially criminal procedure. In this regard, he stands in sharp contrast to Kennedy’s other appointee, Arthur Goldberg. Justice White’s in- fluence on the Court was enhanced by his lengthy tenure and his practice of at times shifting to the center of the Court so as to occupy the pivotal middle ground.

Tom C. Clark

Texas, 1899–1977

Democrat

Appointed by Harry S. Truman

Years of Service: 1949–1967

Life and Career. The son of a Dallas lawyer, Clark served in the U.S. Army during World War I, graduated from the University of Texas Law School, and practiced in his father’s law firm from 1922 to 1927. Thereafter, he held appointed posts as civil district attorney and assistant (criminal) district attorney for Dallas. His involvement in politics led to his appointment to the U.S. Justice Department in 1937, where he worked on a variety of issues, in- cluding war claims, antitrust, the evacuation of Japanese Americans from the West Coast to camps during World War II, and war frauds. In 1943, he was appointed assistant attorney general and headed the antitrust and the crim- inal divisions.

He supported Truman for the vice presidential nomination in 1944 and was appointed by Truman as attor- ney general in 1945. Clark was a vigorous attorney general, instituting 160 antitrust cases, supporting civil rights actions designed to end racial segregation, and playing a key role in developing President Truman’s anticommu- nist loyalty oath program, generated by cold war fears of internal subversion.

In 1967, Justice Clark resigned from the Court as a gesture of paternal love when his son, Ramsey Clark, was appointed by President Lyndon Johnson as attorney general. If he had continued to serve, a conflict of interest would have arisen in every Supreme Court case involving the U.S. government. For the next decade of his life, he actively participated as a judge in the various federal cir- cuits and contributed to numerous programs designed to enhance the quality of the American judiciary.

Contribution to Criminal Procedure. Justice Clark more often than not voted in favor of the state in cases involving criminal procedure issues. For example, he dissented in Miranda v. Arizona (1966). He dissented in a case that held that probable cause could not be based on a person’s gen- eral reputation (Beck v. Ohio, 1964); he dissented in a case that excluded evidence seized from one person pursuant to an illegal arrest of another person (Wong Sun v. United States, 1963); and he joined Justice Sherman Minton’s decision in United States v. Rabinowitz (1950). Nevertheless, he wrote the majority opinion in the breakthrough incorporation decision of Mapp v. Ohio (1961), and he was a staunch supporter of fair trials, as seen in his opinions finding constitutional error because of excessive pretrial publicity.

Signature Opinion. Mapp v. Ohio (1961). Why did a justice who was generally conservative on criminal matters support the incorporation of the exclusionary rule? In a revealing interview after retirement, Justice Clark told seminar students that as a young lawyer, he defended his cook’s son against a Prohibition charge (possessing liquor) after Dallas police simply entered the accused’s room, ripped open a mattress, and gave the bottle of liquor they found to federal agents. Clark was shocked that police could do this. Thus, although as a justice he was loath to curb the le- gitimate power of police officers, the facts of Mapp were excessive. To Justice Clark, the exclusionary rule, applied to the states as well as the fed- eral government, simply made sense, and as he wrote in Mapp, “there is no war between the Constitution and common sense.”

Assessment. Clark replaced the staunch liberal Justice Frank Murphy in 1949, tilting the Vinson Court in a more conservative direction. Clark generally joined Justices Stanley Reed, Felix Frankfurter, Robert Jackson, and Harold Burton, although he was somewhat more liberal than Chief

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Justice Fred Vinson. During the 1950s, he supported the government in antitrust and loyalty cases, where his experiences as attorney general shaped his approaches, thus taking a liberal stance in the first area and a conservative stance in the latter. His positions on First Amendment issues, voting district reapportionment, and racial segregation were in sync with the liberal Warren Court.

Further Reading

Richard Kirkendall, “Tom C. Clark,” in Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789–1969, vol. 4 (New York: Chelsea House, 1969), 2665–95.

John M. Harlan II

New York, 1899–1971

Republican

Appointed by Dwight D. Eisenhower

Years of Service: 1955–1971

Life and Career. The grandson of a Supreme Court justice by the same name, Harlan was viewed as a “progres- sive Republican” when appointed. He was born in Chicago, was educated at private schools, and served briefly in World War I. He received his bachelor’s degree from Princeton in 1920, was a Rhodes Scholar at Oxford, and completed his legal studies at New York Law School in 1924. He practiced law in New York with a prestigious Wall Street law firm up until his appointment to the Second Circuit Court of Appeals in early 1954. However, his background also included years of public service. He prosecuted a former U.S. attorney general for corruption when he was an assistant U.S. attorney in the 1920s, acted as a special prosecutor for New York State in a major investigation of municipal graft in the 1930s, directed a critical unit of experts advising the commanding general of the Eighth Air Force on bombing operations in Europe during World War II, and was chief counsel of an organ- ized crime investigation for the state of New York in the early 1950s. After less than a year on the Second Circuit Court of Appeals, he was nominated by President Eisenhower to the Supreme Court.

Contribution to Criminal Procedure. Justice Harlan opposed incorporation and dissented in Mapp v. Ohio (1961) and Miranda v. Arizona (1966); he believed the federal government should be held to higher standards of procedural regularity under the Bill of Rights than states under the Fourteenth Amendment. He was generally conservative and voted for the state, but not slavishly so. Thus he concurred on extending the right to counsel to all felony defendants (Gideon v. Wainwright, 1963); he concurred in extending the right to counsel to juveniles (In re Gault, 1967; Katz v. United States, 1967). He dissented in United States v. White (1971), arguing that police agents should not be able to wear body mikes with- out a prior judicial warrant.

Signature Opinion. Spinelli v. United States (1969). Justice Harlan’s opinion upheld the two-prong test for determining when the hearsay evi- dence of a confidential informant can amount to probable cause for a search warrant. He closely examined the facts put forth by the FBI and pen- etrated the affidavit’s veneer of certainty to show that the agency was, in effect, asking for a blank check on its decision. The opinion highlights the vital importance of judicial scrutiny of police affidavit requests to the preservation of Fourth Amendment privacy and liberty.

Assessment. Justice Harlan developed a close intellectual friendship with Justice Frankfurter; with the latter’s resignation in 1962, Harlan took on the mantle of the chief spokesperson for judicial restraint and traditional judicial conservatism. During the entire period of the due process rev- olution, Justice Harlan wrote the most exhaustive and penetrating dissents against the incorporation doctrine.

Justice Harlan was “a lawyer’s judge”—he closely examined cases and often based decisions on fine factual distinctions rather than upon broad generalizations, and his opinions reflected his desire to give lawyers and judges clear guidance in applying the rules of the case. He had a profound respect for judicial precedent and felt that the Court should interfere as little as possible into the political workings of both state and fed- eral governments. His incorporation dissents noted that “the American federal system is itself constitutionally ordained, that it embodies values profoundly making for lasting liberties in this country” (Pomtar v. Texas, 1965). He was skeptical about the ability of courts to ensure true liberty by their rulings, believing that liberty “can rise no higher or be made more secure than the spirit of a people to achieve and maintain it.” (Pomtar v. Texas, 1965) He also believed that federalism encouraged differences between the states and that it was not the role of the Supreme Court to eradicate these differences by applying the Bill of Rights as a steamroller over variations of state procedure.

Further Reading

Tinsley E. Yarbrough, John Marshall Harlan: Great Dissenter of the Warren Court (New York: Oxford University Press, 1992).

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Potter Stewart

Ohio, 1915–1985

Republican

Appointed by Dwight D. Eisenhower

Years of Service: 1958–1981

Life and Career. Born into a politically active Republican family with “a strong tradition of public service,” Stewart was educated at the Hotchkiss School, Yale University (where he was a Phi Beta Kappa), and Yale Law School, where he generally supported the New Deal. He served as a deck officer on an oil tanker during World War II, which put him in contact with men of a different background than he would meet at Yale or in corporate law practice. He practiced law in his hometown of Cincinnati from 1946 to 1954. His political activity (he was twice elected to the Cincinnati City Council) and his support of Eisenhower’s bid for the Republican presidential nomination in 1952 against Ohio senator Robert Taft led President Eisenhower to name him to the Sixth Circuit Court of Appeals in 1954 at the young age of thirty-nine. His reputation as an excellent judge led to his nomina- tion to the Supreme Court in 1958.

Contribution to Criminal Procedure. Although known as a middle-of-the-road justice who did not automatical- ly side with either the liberals or the conservatives, Justice Stewart wrote a large number of Fourth Amendment

opinions for the Supreme Court that tended to expand defendants’ rights. On the liberal, or pro-defendant, side were Vale v. Louisiana (1970) (a doorstep arrest does not authorize a general search of a premises) and Coolidge v. New Hampshire (1971) (supporting the warrant-preference con- struction of the Fourth Amendment). On the conservative, or pro-prosecution, side, Justice Stewart opposed incorporation, dissented in Miranda v. Arizona (1966), and wrote the majority opinion in Schneckloth v. Bustamonte (1973), holding that the police need not warn suspects of their Fourth Amendment rights before requesting consent to search.

Justice Stewart had a talent for turning a pithy phrase that encapsulates a rule, and he wrote logical, well-organized opinions. This was seen in his most important Fourth Amendment opinion, Katz v. United States (1967), where his emblematic statement—“For the Fourth Amendment protects people, not places”—nicely summed up the major shift in Fourth Amendment jurisprudence from its foundations in property law to its new basis on an expectation of privacy.

Signature Opinion. Chimel v. California (1969). His majority opinion in Chimel ended the long zigzag course of opinions on the scope of a search incident to arrest. It confirmed that while officers may reasonably search the area within the immediate control of an arrested suspect to seize weapons and contraband, they may not use the arrest as an excuse to search a premises without a warrant.

Assessment. Justice Stewart’s approach to constitutional law was cautious and restrained. His middle-of-the-road votes made him a “swing jus- tice” in many areas. His judicial philosophy appeared to be that a judge should first defer to legislative and executive branch authority but not hes- itate to exercise judicial review in order to maintain essential procedural safeguards and to prevent abuses of power. Justice Stewart favored nar- row rulings and preferred that cases be resolved on the specific facts when necessary. He was a lone dissenter in the case that held school prayer to violate the First Amendment, but he voted for free speech in censorship cases. On the death penalty, he held it to be unconstitutional as applied in 1972, but he voted to uphold revised death penalty laws in 1976 that incorporated the element of guided discretion. He decided a very large number of criminal procedure cases. Ultimately, it is not possible to classify Justice Stewart simply as a liberal or conservative or as an activist or passivist judge.

Further Reading

Tinsley E. Yarbrough, “Justice Potter Stewart: Decisional Patterns in Search of Doctrinal Moorings,” in Charles M. Lamb and Stephen C. Halpern, eds., The Burger Court: Political and Judicial Profiles (Urbana: University of Illinois Press, 1991), 375–406.

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Byron R. White

Colorado, 1917–2002

Democrat

Appointed by John F. Kennedy

Years of Service: 1962–1993

Life and Career. White’s youth was filled with hard work in the beet fields of rural Colorado and on railroad section crews. He was an excellent student and an outstanding athlete in high school and at the University of Colorado, where he was elected to Phi Beta Kappa, graduated first in his class in 1938, and attracted national at- tention as a star tailback (nicknamed “Whizzer”) on Colorado’s unbeaten football team. He also won varsity let- ters in basketball and baseball. Between 1938 and 1942, White spent a year at Oxford University as a Rhodes Scholar (where he met Ambassador Joseph Kennedy’s son, John), was the highest paid professional football play- er in America, and began law school. While serving as a naval intelligence officer in the South Pacific during World War II, White again met John F. Kennedy. He completed his law degree at Yale after the war, clerked for Chief Justice Fred Vinson (1946–1947), and while in Washington, had numerous opportunities to meet with John Kennedy, then a freshman congressman from Massachusetts. In 1947, he returned to Colorado and the private practice of law.

In 1959, White led the Colorado organization on behalf of Kennedy’s efforts to gain the Democratic presi- dential nomination. He was appointed deputy U.S. attorney general in 1961 and won recognition as an able administrator, effectively acting as “chief of staff” of the Justice Department. During the tense days in May 1961, when Attorney General Robert Kennedy dispatched four hundred federal marshals to Alabama to protect the Freedom Riders, White calmly and competently supervised the marshals and deputies. As deputy attor- ney general, he ably screened candidates for federal judgeships.

Contribution to Criminal Procedure. Justice White was generally conservative on criminal procedure issues; he dissented strongly in Escobedo v. Illinois (1964) and Miranda v. Arizona (1966) and was clearly opposed to the incorporation of the Fourth Amendment exclusionary rule. On oc- casion, he decided in favor of the defendant. In Duncan v. Louisiana (1968), however, he effectively ended the Palko (1937) approach to funda- mental rights, arguing that if a Bill of Rights procedure is fundamental to the American system of justice, it ought to be incorporated.

His pro-government rulings include the late-1980s ruling that a helicopter overflight of a backyard at four hundred feet is not a search; there is no expectation of privacy in abandoned trash; an indicted defendant may waive his right to counsel and be interrogated without his attorney present; and government forfeiture of funds to prevent paying an attorney does not violate the right to counsel. On the other hand, in Arizona v. Fulminante (1991), he led a liberal coalition in holding that a confession was coerced and dissenting against a new rule that a coerced confession can be harmless error.

Signature Opinion. United States v. Leon (1984). Justice White’s most significant Fourth Amendment opinion held that evidence obtained with- out probable cause by a police officer relying in good faith on a faulty judicial warrant was admissible. Leon was the first clear exception to the Mapp v. Ohio (1961) exclusionary rule and a significant victory for conservative justices opposed to the expansion of the rights of criminal sus- pects. Leon’s reasoning relied heavily on a balancing analysis and to some extent on shaky empirical research.

Assessment. Justice White was generally a middle-of-the-road or swing justice. In the 1960s, he supported governmental authority over individ- ual liberty in cases involving the investigation of communists and other groups. On the other hand, his votes on the civil rights of minorities usu- ally favored integration, school busing, and affirmative action. Justice White has puzzled commentators because of his apparent lack of a clear ju- dicial philosophy. Thus, despite his generally strong support for civil rights and “one man, one vote,” he ruled inconsistently on occasion. Some inconsistent decisions can be explained by his concern with the specific factual and procedural contours of each case.

Further Reading

Dennis J. Hutchinson, The Man Who Once Was Whizzer White: A Portrait of Byron R. White (New York: Free Press, 1998).

Collection of the Supreme Court of the United States. Photographer: Joseph Bailey.

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