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The Court's new approach to the Fourth Amendment.

In the last Supreme Court term, the justices decided four major Fourth Amendment cases, dealing with a drug roadblock, drug testing of pregnant women, a seat belt arrest, and thermal imaging. The strange voting lineups and seemingly inconsistent results of these cases make it appear that the Court decided each according to the predilections of a shifting majority, rather than adhering to any larger theme.

However, there is a theme: The Court, since shortly after the arrival of Justice Stephen Breyer, consistently resists attempts by police to increase their power to interfere with (legally) innocent civilians, but it refuses to intervene in how police deal with suspects when there is probable cause to arrest or search.

Consider, chronologically, the four cases. The first was City of Indianapolis v. Edmond. (1) The Court, by a 6-3 vote along predictable ideological lines, (2) struck down a "narcotics roadblock" in which motorists were randomly stopped for a brief inspection by police and a check of the car's exterior by a drug-sniffing dog.

The Court found that this roadblock was for "law enforcement" purposes, unlike "traffic control" roadblocks in which impaired or unlicensed drivers were stopped. Thus, police ability to interfere with people--without evidence of criminal wrongdoing or additional regulatory reason for hpproaching, such as traffic law enforcement--was limited.

The Court wrote: "We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime." (3)

Edmond called a halt to a series of earlier cases that approved roadblocks to apprehend illegal aliens (4) and drunk drivers (5) and suggested that roadblocks to check drivers' licenses would also be acceptable. (6) The current Court's emphasis shows in the majority's willingness to break from precedent--even though, as the dissent noted, the burden on the motorist was the same in all these cases. (7)

The second case, decided by a 5-1-3 vote, was Ferguson v. City of Charleston. (8) In this case, maternity patients who met a hospital profile for suspected drug use were subjected, without being told, to urine tests for cocaine.

If the tests were positive, the results were turned over to the police, and the patients were threatened with arrest if they did not agree to participate in a drug treatment program. (9) The lower court approved this testing because the Supreme Court had recognized that "special needs" justified "suspicionless" drug tests--those without probable cause--although they qualified as searches. (10)

Ferguson's case history was completely different from Edmond's, as well as having a compelling societal goal--the protection of fetuses from harmful drugs. Yet the Court concluded as in Edmond that, notwithstanding its noncriminal goal, the program's primary thrust was crime control. (11) Consequently, taking urine samples from pregnant women was a "search" without consent or probable cause, in violation of the Fourth Amendment.

The Court wrote: "While the ultimate goal of the program may well have been to get the women in question into substance abuse treatment and off of drugs, the immediate objective of the searches was to generate evidence for law enforcement purposes in order to reach that goal." (12)

In the third case, Atwater v. City of Lago Vista, a woman was legitimately stopped by the police for driving without wearing a seat belt; state law allowed a custodial arrest for this offense. (13) The officer arrested and handcuffed her, impounded her car, and took her to the police station, where she had a mug shot taken and was incarcerated for an hour. She could have been subjected to searches of her person (14) and her car (15) "incident to the arrest," but the police did not do this.

Justice David Souter wrote a 5-4 decision upholding the arrest. The majority's primary argument was that the police need clear rules to follow and that any rule other than "police can arrest whenever state law allows" would be too fuzzy. Specifically, Sourer rejected the dissent's proposal that someone who commits a "fine-only" offense should be arrested only if "the officer is `able to point to specific and articulable facts which ... reasonably warrant ...' a full custody arrest." (16) The majority found this test fraught with complexity, since the police officer may not know whether there are circumstances justifying a full-custody arrest. The Court held that there is no "cause for finicking when police act with [probable cause]." (17)

Since the police had legitimately arrested Atwater, the Court was unwilling to impose a further set of restrictions on how the police might treat her, even though it admitted that "the physical incidents of [her] arrest were merely gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment." (18)

In the last case, Kyllo v. United States, the police used a thermal imaging machine to examine the outside of Kyllo's house, found that excessive heat was being released, and concluded he was growing marijuana inside. (19) They used the information to obtain a warrant, searched, found marijuana, and arrested Kyllo.

A strange majority--Antonin Scalia, Souter, Clarence Thomas, Ruth Bader Ginsburg, and Breyer--struck down the search on the ground that using a technical device to get any information from the interior of the house violated the Fourth Amendment. This was consistent with the Court's holding in an earlier case: that using an electronic beeper to ascertain that a drum of chemicals was in a house violated the Fourth Amendment, although the beeper conveyed no further information than the drum's presence in the house. (20)

However, that 1984 ruling was inconsistent with the general run of Burger Court cases, which held that searches of trash or of fenced and posted fields, as well as helicopter flyovers, Were not "searches" under the Fourth Amendment.

In Kyllo, the police obviously had suspicions but did not employ them to justify using the machine. Rather, the government argued, using the machine was "not a search" under the Fourth Amendment, and therefore it could be used outside anyone's house.

The Court, showing its reluctance to allow police to interfere in new ways with innocent civilians, rejected the argument. All nine justices agreed that using a machine that disclosed what people were actually doing in the house would have violated the Fourth Amendment. The dispute was whether use of this crude machine, which showed only the release of heat from the house, was enough to violate the Constitution. The majority concluded that it was.

Considering the burden on the individual in these four cases, Atwater suffered the most. Being arrested and incarcerated is a worse experience than being stopped briefly at a roadblock, having your urine examined for cocaine, or having the "heat profile" of your house measured by a machine. As noted, the potential burden on Atwater was even greater since both she and her car could have been searched.

But the Court upheld Atwater's arrest while favoring the other three defendants. Atwater was not an innocent person subjected to police investigation; rather she was legitimately under police control. The issue was whether the Court should create a new rule for police to follow that would govern post-arrest treatment. It refused.

In contrast, the subjects in the other three cases were all innocent: The police didn't claim probable cause or even "reasonable suspicion" that the defendants had committed any crime before the search or seizure.

Same theme, other cases

Several other recent cases can be analyzed along similar lines. In City of Chicago v. Morales, the Court struck down a city ordinance enacted to protect residents from gang members who loitered in certain areas to establish "turf." (21) The ordinance required that loiterers follow police orders to "move on."

The Court found that the ordinance did not "establish minimal guidelines to govern law enforcement." (22) In particular, it denounced the provision that forbade apparent gang members from "loitering in one place with no apparent purpose" because this "provides absolute discretion to police officers to decide what activities constitute loitering." (23)

Compare that result with the one in Whren v. United States, in which a unanimous Court held that vice squad police who stopped a car to investigate whether the car contained drugs--using a traffic violation pretext--did not violate the Fourth Amendment. (24) The majority concluded that probing, in each case, the subjective intentions of officers who objectively had probable cause (albeit not of a criminal violation) to determine the true motive for an arrest or stop would be unworkable and undesirable.

Again, the burden on the individual in Morales, being required to "move on," was far less than that in Whren--being subject to stop and search for criminal evidence due to a minor traffic violation. But it was "innocent" people who were subjected to police intrusion in Morales, whereas those searched in Whren were traffic violators already subject to police apprehension.

Likewise, in Ohio v. Robinette, the Supreme Court upheld a highway patrol officer's request for consent to search a car stopped for a traffic violation without informing the suspect that he was free to go. (25) Since Robinette was already legitimately under the control of the police, the Court was not troubled by the fact that he was not informed of his freedom to go before his consent was sought. (26)

And in Wyoming v. Houghton, the Court upheld the search of a car on probable cause that the driver possessed drugs. (27) During the search, the police opened a passenger's handbag, which she had left in the car, and found drugs. While the passenger was "innocent" in the eyes of the police, the Court focused on the unquestioned authority of the police to search the car regardless of who might own the various containers in it.

As long as the police exercise established authority, the Court is unwilling to limit how they should do it. A contrary ruling, said the Court, would lead to a "bog of litigation" over whether the police had reason to believe that a particular container belonged to a passenger rather than the driver. (28) However, the majority made clear that its decision probably would have been different had police searched the person of the "innocent" passenger. (29)

But the Court rejected the government's argument in Bond v. United States, striking down a random "luggage squeeze" by drug agents feeling baggage on a bus. (30) This was a "search" requiring probable cause, the Court ruled. Bond and his fellow passengers were legally presumed innocent and could not be subjected to such intrusive police behavior.

And in Florida v. J.L., the Court unanimously ruled against police frisking a suspect based solely on an anonymous tip that he was carrying a gun. (31) Again, without the tip, J.L. was innocent, and the Court was reluctant to allow the frisk, absent a more convincing show of cause.

It appears that a majority of the current Court carries on the reluctance of the Burger and earlier Rehnquist courts to interfere with how police deal with people when probable cause exists. But when the police seek new authority to interfere with people and lack probable cause, the Court has been unwilling to go along.

As the police use new technologies to detect and apprehend criminals, this trend is likely to continue: The majority will endorse novel means of gathering evidence against people if the police have probable cause, but it will strike down applying such means to the legally innocent. Moreover, because this position has been endorsed by a shifting majority of the Court, which sometimes includes conservatives unwilling to support increases in government power to intrude on people's lives, the trend may well hold up even as the Court's composition changes.

Notes

(1.) 531 U.S. 32 (2000).

(2.) That is, the three dissenters were Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas.

(3.) 531 U.S. 32, 44.

(4.) United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

(5.) Mich. Dep't of St. Police v. Sitz, 496 U.S. 444 (1990).

(6.) Delaware v. Prouse, 440 U.S. 648, 656-57 (1979).

(7.) See Edmond, 531 U.S. 32, 48-52 (Rehnquist, C. J., dissenting).

(8.) 121 S. Ct. 1281 (2001) (Kennedy concurring in the judgment; Rehnquist, Scalia, and Thomas, dissenting).

(9.) Id. at 1285.

(10.) Id. at 1286. (The court below had relied on Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602 (1989); and Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989). In each of these cases, the Supreme Court had allowed suspicionless drug tests due to various noncriminal "special needs.")

(11.) See id. at 1290.

(12.) Id. at 1291.

(13.) 121 S. Ct. 1536 (2001).

(14.) See United States v. Robinson, 414 U.S. 218 (1973).

(15.) See New York v. Belton, 453 U.S. 454 (1981).

(16.) See Atwater, 121 S. Ct. 1536, 1563-64 (O'Connor, J., dissenting) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

(17.) Id. at 1554 n.16.

(18.) Id. at 1553.

(19.) 553 U.S. 27 (2001).

(20.) United States v. Karo, 468 U.S. 705 (1984).

(21.) 527 U.S. 41 (1999).

(22.) Id. at 60 (quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983)).

(23.) Id. at 61 (quoting City of Chicago v. Morales, 687 N.E.2d 53, 63 (Ill. 1997)).

(24.) 517 U.S. 806 (1996).

(25.) 519 U.S. 33 (1996).

(26.) This is consistent with the Court's refusal to mandate any prerequisite to consent searches beyond the vague requirement that they be "voluntary." Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

(27.) 526 U.S. 295 (1999).

(28.) Id. at 305.

(29.) Id. at 303 n.1.

(30.) 529 U.S. 334 (2000).

(31.) 529 U.S. 266 (2000).

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at bradleyc@indiana.edu.
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Author:Bradley, Craig M.
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Date:Feb 1, 2002
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