Protecting personal privacy: drawing the line between people and containers.

More so today than perhaps at any time in this nation's history, law enforcement officers must be proactive when interacting with individuals in the towns and communities in which they serve. Understanding the full depth of the tools available to ferret out criminal activity and to protect their safety, as well as the safety of others, is critical to law enforcement effectiveness. In the face of this mandate, officers must constrain their actions according to constitutional principles as interpreted by America's judicial system. Critical in the constitutional analysis is the value afforded personal privacy. This article examines the recognition of personal privacy in the context of a regular and potentially valuable, as well as volatile, law enforcement activity--stopping a vehicle and developing probable cause to search it. Officers must be mindful of the scope of their authority and the legal tools within their arsenal. These tools may justify further governmental intrusions, including intrusions into personal privacy, when the officer's initial response reveals additional information.

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The Fourth Amendment

The Fourth Amendment to the U.S. Constitution reads as follows: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be vio-lated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (1) The privacy protected by the Fourth Amendment has its origin in the American colonists' battle against British government practices. (2)

These practices included unauthorized general warrants, allowing a virtually unrestricted house search for whatever evidence could be found of interest to the Crown. Such tools provided British officers indiscriminate authority to search people's homes and property. The framers of the Constitution responded to these unreasonable intrusions with the Fourth Amendment. While relatively brief, the language repudiates the concept of a general warrant, requiring the existence of probable cause and a particularized description of the things to seize and the place to search.

The U.S. Supreme Court, in interpreting the language of the Fourth Amendment, engages in a balancing process, weighing the interests of the government in engaging in a search versus the interests of an individual's privacy. The practical impact of this balancing in traditional law enforcement is the presumption in favor of securing a warrant prior to engaging in conduct that would amount to a search under the Fourth Amendment. The Supreme Court has stated that a warrantless search is "per se unreasonable subject to a few specifically established and well-delineated exceptions." (3) The exceptions allow law enforcement officers to bypass the procedures of obtaining a warrant from a judicial officer when there is a determination that a significant government interest in searching without a warrant outweighs the interests of the individual. This significant government interest may include, for example, the need to act to prevent the destruction of evidence or prevent the escape of a dangerous individual.

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The Supreme Court recognizes the need for law enforcement to search in the face of an emergency (4) or incident to arrest, (5) following the lawful seizure of property to inventory its contents, (6) based on the voluntary consent of a party who has authority over the property, and pursuant to the motor vehicle exception. (7) This article focuses on the scope of the authority when engaged in the stop of a vehicle and when, during this stop, information is developed leading to a search.

The Motor Vehicle Exception

The motor vehicle exception to the Fourth Amendment, first recognized by the Supreme Court in Carroll v. United States, (8) permits an officer to search a vehicle without a search warrant if there is probable cause to believe that evidence or contraband is in the vehicle. In Carroll, officers had probable cause to believe that a vehicle contained contraband, in this case, hidden bootleg liquor. The officers searched the vehicle and found the bottles of liquor within the upholstery of the seats. The occupants of the vehicle were subsequently arrested. The arrestees sought to have the evidence suppressed, arguing that it was seized in violation of the Fourth Amendment. The Supreme Court ruled that the search was reasonable by recognizing that the Fourth Amendment reasonableness requirement must recognize the need to search a vehicle under such circumstances without requiring officers to stop and proceed to a judicial officer beforehand. The Supreme Court, in creating the motor vehicle exception to the warrant requirement, justified this exception by recognizing the difference between searches of fixed premises and searches of motor vehicles, the latter capable of being "quickly moved out of the locality or jurisdiction in which the warrant must be sought." (9)

Considering this mobility, the Court concluded that to require officers to secure a warrant before searching a vehicle would risk the loss of evidence. The Court further noted that the expectation of privacy in vehicles is reduced because they are modes of transportation, rather than a storage area for personal effects, and because they travel on public roads with occupants and contents largely in view. (10) Since Carroll, the Supreme Court has decided cases with varying circumstances that have led to an expansion and clarification of the exception. (11)

Containers Within the Vehicle

An area of uncertainty within the motor vehicle exception relates to the discovery of containers within the vehicle. In United States v. Ross, (12) the Supreme Court ruled that a warrantless search of a closed paper bag found inside a trunk of a vehicle by police officers acting on a tip from an informant that the driver was in possession of heroin was reasonable. The Court addressed the scope of the search under the exception and held that probable cause to search a lawfully stopped vehicle empowered the officers to search "every part of the vehicle and its contents" (13) that might contain the item(s) for which the officers have probable cause to search. Thus, if the container within the vehicle could hold the object of the search, officers were authorized to search it. The Court in Ross explained, "[j]ust as probable cause to believe a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." (14) The Court emphasized that the scope of the warrantless search is no different than it would be for a search done with a warrant.

Similarly, in California v. Acevedo, (15) police observed the defendant place a bag containing contraband into the trunk of a vehicle. They subsequently opened the trunk and searched the bag. The defendant argued that the search was unreasonable as the probable cause was focused on the bag and it was just a coincidence that it was placed in the vehicle. Providing a bright-line principle to law enforcement, the Supreme Court held that where the probable cause was focused was not important when determining whether the exception applies. However, as to the scope of the warrantless search, such information may limit where officers may search. At the time of the search in Acevedo, the police did not have probable cause to believe that contraband was hidden in any other part of the vehicle, and, thus, an entire search of it would have been without probable cause and, therefore, unreasonable under the Fourth Amendment.

Through these cases, the Supreme Court has carved out an exception to the warrant requirement that can be reduced to some basic guiding principles. First, police are able to search a motor vehicle without a warrant if there is probable cause to believe that contraband or evidence is contained therein. Second, the scope of the warrantless search is no broader or narrower than could be authorized by a search warrant. Third, containers within a vehicle may be searched when it is reasonable to believe that the object of the search is likely to be within the container. Finally, the mere fact that officers have probable cause to believe that a container placed in a vehicle contains contraband or evidence does not justify a search of the entire vehicle.

Despite the apparent clarity of this exception, not all scenarios fit within the principals. This is the area in which personal privacy plays a critical role. Questions remain as to whether officers are authorized to search a container that is the personal property of a person who happens to be inside the vehicle but for which the officers have no information indicating that individual's involvement in criminal activity. While not addressing this issue directly, the Supreme Court's decision in Wyoming v. Houghton (16) offers some guidance in clarifying the scope of the motor vehicle exception as it relates to personal privacy.

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In Houghton, the defendant was traveling down a deserted highway in a vehicle driven by a friend and accompanied by her friend's girlfriend. At approximately 2 a.m., a Wyoming Highway Patrol officer stopped the vehicle for speeding and faulty break lights. Houghton and the others were all sitting in the front seat of the vehicle. Noting a syringe in the driver's front shirt pocket, the officer questioned the driver regarding its use. The driver admitted to using the syringe to take drugs. In apparent response to the driver's conversation with the officer, backup officers who had just arrived at the scene ordered the two female passengers out of the vehicle and asked for identification. The original officer, believing the vehicle contained contraband, began a search of the passenger area of the vehicle.

During the search, the officer discovered a purse in the back seat that Houghton admitted was hers. The officer looked in the purse and found a black wallet-type container and a brown pouch. The officer searched these items and found drugs. The officer then arrested Houghton. The defendant moved to suppress the evidence, arguing that the officer lacked probable cause to believe that her purse contained any evidence of wrongdoing. The Wyoming Supreme Court agreed, holding that the officer lacked probable cause to believe that the container (purse) found in the vehicle contained any evidence of criminal activity given the officer knew it belonged to the passenger as opposed to the driver. The state of Wyoming appealed the decision to the U.S. Supreme Court. (17)

The Supreme Court reversed the state decision, holding that once probable cause exists to search a vehicle, personal belongings found inside the vehicle may be searched as well without regard to a warrant or ownership, provided it is reasonable to conclude that the object of the search could be found within the belongings. However, recognizing the heightened importance of personal privacy, the Court warned that absent independent justification, the search of the vehicle pursuant to the motor vehicle exception does not automatically extend to a search of a person within the motor vehicle or even a limited search of a person's outer clothing. (18) Of course, this presumes that no independent justification exists to support an intrusion into the personal privacy of the individual, such as specific and articulable facts indicating the individual may be armed supporting a limited search of the person's outer clothing. Even then, the Supreme Court, referring to its landmark ruling in Terry v. Ohio, (19) noted "[e]ven a limited search of the outer clothing ... constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." (20)

Personal Privacy

The Fourth Amendment allows officers to take action when concerned with their safety or where necessary to prevent the destruction of evidence while still maintaining the sanctity of personal privacy. The importance of personal privacy was recognized in a 1948 Supreme Court case, United States v. Di Re. (21) In this case, the Supreme Court focused on the importance of personal privacy and opined that even if officers have probable cause to search a vehicle, it does not necessarily extend to a search of the person within the vehicle. The Court stated that it was "not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled." (22)

The weight given personal privacy also was recognized in Ybarra v. Illinois, (23) a case involving the execution of a search warrant at a public tavern. The warrant authorized the search of the tavern and the person of the bartender for evidence relating to the possession of narcotics. During the search, officers encountered Ybarra, a patron of the tavern. Ybarra was initially confronted and patted down. Officers returned to him, patted him down a second time, and removed a cigarette pack that was found to contain foil packets full of heroin. The Supreme Court ruled that the second pat down and the retrieval of the cigarette pack violated the Fourth Amendment as the search of Ybarra was not within the scope of the warrant and no independent grounds justified this intrusion. Given the similarity in the parameters of the scope of the search of a vehicle under the motor vehicle exception and a search pursuant to a search warrant, law enforcement must be able to recognize and justify intrusions into personal privacy based on the uniqueness of the situation as opposed to relying on what initially justified the search but may not justify the search of a person.

Conclusion

American society has changed dramatically since these early decisions of the Supreme Court. However, despite these dramatic changes, a common thread tying the past with the present has been the importance of personal privacy within the Fourth Amendment. The Supreme Court's opinions indicate a sensitivity on its part to the difficult nature of police work and the great risks routinely confronting law enforcement. Recognizing these two principles, law enforcement officers who are sworn to uphold and defend the Constitution must understand and discern the limitations imposed on their authority to respect the rights guaranteed to people.

Endnotes

(1) U.S. CONST. Amend. IV.

(2) See Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U.L. Rev. 925-926, 945 (1997).

(3) Katz v. U.S., 389 U.S. 347 (1967).

(4) Schmerber v. California, 384 U.S. 757 (1966); Terry v. Ohio, 392 U.S. 1 (1968).

(5) U.S. v. Robinson, 414 U.S. 218 (1973); U.S. v. Edwards, 415 U.S. 800 (1974); Maryland v. Buie, 494 U.S. 325 (1990).

(6) South Dakota v. Opperman, 428 U.S. 362 (1976); Florida v. Wells, 495 U.S. 1 (1990).

(7) See U.S. v. Matlock, 415 U.S. 164 (1974).

(8) 267 U.S. 132 (1925).

(9) Id. at 153.

(10) Cardwell v. Lewis, 417 U.S. 583 (1974).

(11) See U.S. v. Johns, 469 U.S. 478 (1985); Michigan v. Thomas, 458 U.S. 259 (1982); Florida v. Meyers, 466 U.S. 380 (1984); Pennsylvania v. Labron, 116 S.Ct. 2485 (1996).

(12) 456 U.S. 798 (1982).

(13) Id. at 825.

(14) Id. at 824.

(15) 500 U.S. 565 (1991).

(16) 526 U.S. 295 (1999).

(17) 956 P.2d 363 (Houghton v. State).

(18) 526 U.S. at 3080. Moreover, Justice Breyer stated in his concurring opinion that he would be inclined to give increased protection to a purse if the owner was wearing the purse at the time of the search.

(19) 392 U.S. 1 (1968).

(20) Houghton at 303, quoting Terry v. Ohio at 392 U.S. 1 at 24-25.

(21) 332 U.S. 581 (1948).

(22) Id. at 587.

(23) 444 U.S. 85 (1977).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

By MICHAEL J. BULZOMI, J.D.